NAGINA RAI Vs. SANGAM RAI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession of a plot of land and a clump of bamboo trees. The Court of first instance decreed the suit but on appeal the suit has been dismissed.

(2.) The main point which is raised in second appeal is that the finding of the lower Appellate Court that the plaintiff's claim was barred fey the principle of res judicata was not correct. What happened was that the present plaintiff used to live in Bengal far away from his village. In 1918 some of the present defendants brought a suit against the plaintiff's own brothers and uncle for the possession of the plot of land and certain trees including the property now in dispute. The members of the present plaintiff's family pleaded therein that the property then in suit belonged to their family. The suit was hotly contested and ultimately a decree was given to the plaintiff's relations. In that suit the present plaintiff was not impleaded at all.

(3.) The reason probably was that he was absent from the village at the time. The learned Judge of the Court below has held that that decree operates as res judicata. In this judgment he has found that the plaintiff is a member of the joint Hindu family with his brothers and uncle and has also found that the previous suit was hotly contested, the plaintiff's family setting up their proprietary interest in the land and the bamboo slump. He has further remarked that all the members of the joint Hindu family who were living in the village were impleaded and the case was actually fought by them on behalf of the family.