RAJ GOPAL BHATTACHARJI Vs. SARAT KUMARI DEBI

JUDGEMENT

(1.) THIS is an appeal by defendants 1 and 2 in a suit for recovery of possession of certain lands on declaration of the plaintiffs title. The suit was instituted on 10 May 1922. It would appear that on 3 June 1910 the plaintiff had instituted a suit against the defendants under Section 9, Specific Relief Act, and that that suit had been dismissed on the ground that the plaintiff had failed to prove that she had been in possession within six months of the date of the suit. The learned Munsif who tried the present suit held that : the present suit was barred by limitation under the provisions of Art. 142, Lim, Act. The learned Court of appeal below has reversed the decree of the Munsif, holding that the finding in the possessory suit that the plaintiff had not been in possession for at least six months before the date of that suit is not res judicata in the present suit. We are unable to agree with the view of the law taken by the learned Judge. Under the provisions of Expl (2), Section 11, Civil P.C., the fact that no right of appeal exists against a decision does not is any way affect the operation of the rule of res judicata. The decision in the suit under Section 9, Specific Relief Act, was not subject to appeal; but that fact alone will not make the point decided in that case any the less res judicata in subsequent litigation between the parties. It was decided by the Munsif in the suit under Section 9, Specific Relief Act, that the plaintiff had not been in possession at least from 3 December 1909; and the question covered by that finding cannot be reagitated between the parties. It is not open to the plaintiff to reassert that she had been in possession at any time between 3 December 1909 and 3 June 1910. As that question was res judicata, it follows that the present suit was not within time.

(2.) THE appeal is allowed. THE judgment and decree of the lower appellate Court are set aside, and those of the Munsif restored with costs in this Court and in the Court of appeal below.