MOHENDRA NATH ROY Vs. NABADWIP CHANDRA NANDY

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiffs sued for a declaration that the lands in suit appertained to a niskar which they possessed in the village Banki. The facts of the case shortly stated are these : The plaintiffs apparently had a niskar in the village Banki comprising 41 and odd bighas of land covered by a sanad in the name of their ancestor Shahib Ram. The lands in suit really form the site of what is called a gai khai. The plaintiffs further stated that in the year 1903 the villagers of Banki and of other neighbouring villages complained against obstruction put by the plaintiffs on the water of that garkhai and the criminal Court took proceedings under Section 133, Criminal P.C. which resulted in an order against the plaintiffs. The plaintiffs, then brought a suit in the year 1904 for a declaration that the property was their niskar and that the defendants had no right of easement as claimed by them and as had been established in the proceedings under Section 133 Criminal P.C. The plaintiffs in that suit impleaded some of the representative tenants of the villages of which villagers claimed the right of easement in question. The proprietors of the village Banki who are the defendants in the present suit were not parties in that suit. Nor did they form members of the class which claimed the right of easement in the proceedings under Section 133 Criminal P.C. Now that suit was finally dismissed by the appellate Court on the 21 May 1906 by which the plaintiffs claim to stop the villagers from claiming the easement which they had established in the criminal proceedings under Section 133 was disallowed. Therefore the result of that suit was that the villagers of Banki and the neighbouring villages were declared entitled to exercise the right of easement which they claimed when they asked for the removal of the obstruction put up by the plaintiffs. In the year 1919 the record of rights was published in which the lands together with the garkhai were recorded as appertaining to the mal lands of the village Banki. The plaintiffs brought the present suit basing their cause of action from the date of the final publication of the record of rights.

(2.) In the present case which is against the proprietors of Banki the plaintiffs ask for a declaration of their niskar right and also for confirmation of their possession in that right. The defendants, the proprietors of Banki claimed the lands, as recorded, as appertaining to their mehal Banki and also pleaded res judicata and limitation. The Court of first instance found all the issues in favour of the plaintiffs and made a decree in their favour. On appeal, however, by the defendants the lower appellate Court has found that the plaintiffs have established that the lands in dispute were the niskar lands of the plaintiffs appertaining to the niskar of 41 and odd bighas of land which they claimed under the sanad to which I have already relerred. The lower appellate Court affirmed the decree of the first Court with regard to Plot No. 2 but dismissed the plaintiffs suit as regards Plot No. 1 on two grounds, namely that of res judicata and that of limitation.

(3.) The learned advocate who appears in support of this appeal by the plaintiffs contends that the decision of the previous suit instituted in 1904 which terminated by the judgment of the appellate Court dated the 21 May 1906 does not form a bar of res judicata.