RAVAN MURMU Vs. STATE OF BIHAR

JUDGEMENT

(1.) The orders passed on 6 -2 -1990 and 21 -11 -1982 as contained in Annexures -1 and 2 have been challenged in this writ petition. The above -mentioned orders were passed under the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 by the authorities having jurisdiction under the Act.

(2.) The facts of the case run as follows: Jote No. 3 with an area of 14 bighas 9 khatas and 10 dhoors in Mauza Bandarkund was recorded in the name of Kalyan Besra who died some time in the year 1942 at Asansol. Kalyan Besra used to visit the village and went to Bengal for earning livelihood and the lands in question were given under jimma of one Baso Tudu who happened to be predecessor of Respondent No. 4. During the life time of Kalyan Besra while he was at Asansol one Baso Tudu was recorded as Jimmadar in the Jamabandi. It is also an admitted fact that Kalyan Besra died issueless and according to the petitioner, he had a sister in the name of Dhani Besra and according to the petitioner Kalyan Besra was sufficiently Hinduised and on his death the property devolved on his sister Dhani. On the death of Dhani Besra the property devolved on her two sons, namely Jetha Murmu and Harina Munim. The petitioner happens to be one to the sons of Harina Murmu. According to the petitioner, he came in possession over the land in question but his possession was illegally taken away by the respondent No. 4. As such, as per provisions of the Act he filed an eviction suit before the Deputy Collector for declaration of his title. But, it appears that before hand there was already a litigation between Daso Tudu i. e. predecessor of Respondent No. 4 and Jetha Murmu predecessor of Respondent Nos. 5 to 8 and a Title Suit was filed by Jetha Murmu for eviction of Daso Tudu in the year 1947 being Title Suit No. 36 of 1947 and in that suit declaration was made in favour of Jetha Murmu and according to the petitioner, on the basis of that decree possession was taken by Jetha Murmu and the petitioner's predecessor. A proceeding under Section 145 of the Code of Criminal Procedure was drawn up when there was claim and counter -claim of possession over the land in question. The proceeding was registered as Cr, Misc. No. 515 of 1969. The Sub -Divisional Officer, Dumka, had declared the possession of the lands in favour of Respondent No. 4. The order is contained in Annexure -3. The petitioner being aggrieved by the order that his title has been clouded, filed Title Suit No. 13 of 1969 stating all the farts regarding the earlier decree being passed in favour of his uncle Jetha Murmu. But in the said suit Respondent No. 4 appeared and submitted papers to the effect that the earlier decree in favour of Jetha Murmu in Title Suit No. 36 of 1947 had been set aside by the Sub -Divisional Officer, Dumka, in Title Appeal No. 32 of 1949 on 22 -9 -1949. A revision being preferred by Jetha Murmu, the name was also dismissed by the Commissioner, Bhagalpur, on 19 -4 -1950. Thus, there was suppressing of the fact from the side of the petitioner to the effect that after getting the decree in Title Suit No. 36 of 1947 the petitioner and his other co -sharers have come in possession over the disputed land. All the facts were considered and on perusal of the documents and records the Settlement Officer came to the finding that the present suit is barred by the principles of res judicata as already it was decided in the earlier suit that the predecessor of Respondent No. 4 had acquired perfect title by right of adverse possession. On appeal being preferred before the Commissioner, the same has also been dismissed vide Annexure -2 to the effect that the petitioner's suit is barred by principles of res judicata.

(3.) The main point urged before this Court for and on behalf of the petitioner to the effect that both the Court below had committed error of law in applying the principles of res judicata against the petitioners. It is the submission for and on behalf of the petitioner that he was never a party to the earlier suit and the issue regarding adverse possession was never being decided on proper appreciation of facts between the parties who fought in the earlier suit and as such, when the issue was not being decided in proper adjudication and when the said decision was not binding on the petitioner, the present suit of the petitioner cannot be held to be barred by principles of res judicata. In this connection, Section 11 of the Code of Civil Procedure in referred to which runs as follows: No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially is issue in a former suit between the same parties, or between the parties under whom they or any of them claim (emphasised supplied by me) litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.