ANANTARAM BHATTACHARJEE Vs. HEM CHANDRA KAR

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of certain sums of money withdrawn by the defendant No. f from the Collectorate which has been decreed by both the Courts below. The defendant No. 1 is the appellant before us. The relevant facts which give rise to the arguments in this Court lie within a narrow compass. The plaintiffs are the owners of a village named Ghola in mukurrari right while the defendant No. 1 and the defendant No. 3 are the owners of a contiguous Mouza called Kan-gore. The defendant No. 3 owns five-sixths of Mouza Kangore and the defendant No. 1 one-sixth share. Some time in 1907 there was a dispute between the defendant No. 3 and the plaintiff's predecessor-in-interest with regard to some lands, one party alleging that the lands appertained to Kangore and the other that they appertained to Ghola. The lands were attached under Section 146 of the Criminal P. C. and remained under attachment up to the year 1916. In consequence, several suits were brought by the defendant No. 3 for establishment of his right to these lands and the dispute between the defendant No. 3 and the plaintiffs terminated in a compromise. In the meantime, the defendant No. 1 withdrew from the Collectorate certain sums of money representing his share of the profits of the lands which had been attached as appertaining to Mouza Kangore on various dates, i. e., n May, 1913, 19 June 1913, 7 January 1916 and 18 January 1916. The plaintiffs commenced this suit on the 16 March 1917 for declaration of their right to the lands, for determination of the northern boundary of their Mouza and also for recovery of the sums withdrawn by the defendant No. 1, on the allegation that the lands which had been attached being in their Mouza Ghola the money in the Collectorate was their money. It has been found by the lower Appellate Court that the lands are situated within village Ghola and that the plaintiffs were entitled to the entire sum in deposit in the Collectorate, and accordingly a decree has been made in favour of the plaintiffs. The defendant No. 1 urges that the decree of the lower Appellate Court is erroneous, first, on the ground that the claim with regard to the sums withdrawn by the defendant No. 1 from the Collectorate on the nth of May and the 19 of June of the year 1913 is barred by limitation, and, secondly, that the question as regards the title to the land is barred by the rule of res judicata. Certain other objections were raised with regard to the process of reasoning by which the learned Judge came to the conclusion that the lands were included within the plaintiff's Mouza Ghola, but I do not think they can be urged in second appeal.

(2.) The second point as regards the question of res judicata may be very shortly dealt with. It is based upon this fact: In the year 1906 the defendant No. 1 brought a suit for recovery of his one-sixth share of Mouza Kangore in which the plaintiff's predecessors were impleaded as defendants as those persons also laid a claim to Mouza Kangore. The present defendant No. 1 obtained a decree for what he claimed. It does not appear that any question was raised or decided as regards the lands now in dispute. The learned Judge finds that in that case no question as to the boundaries between the villages was decided and that the suit did not cover any lands of Ghola and also that the plaintin that case does not show that these lands were included in it. The plea of res judicata with regard to Suit No. 193 of ?906 does not, therefore, appear to be sustainable.

(3.) Another argument was raised with regard to this plea of res judicata. The defendant No. 1 brought a suit in 1916 for partition of the lands of Mouza Kangore and the plaintiffs in the present suit were impleaded as defendants. It is said that they objected to the boundaries given in the plaint of Mouza Kangore and the Court found that the boundaries given in the plaint were correct. It, however, appears from the judgment in that suit which has been read over to us, that the question as to what lands were included within those boundaries was left open and it cannot be said that the lands now in dispute were the subject of adjudication in the suit of 1916 in any way. The argument that has been addressed to us on this matter does not also appear to have been raised in either of the Courts below. This plea of the appellant also fails.