KRISHNA PRASAD MAHTO Vs. ASHOK RAM AND OTHERS

JUDGEMENT

(1.) The petitioner, defendant in Title Suit No. 117 of 2006, is aggrieved of order dated 01.07.2010 by which the application filed under Section 11, C.P.C raising objection to maintainability of the suit on the ground of res-judicata has been dismissed.

(2.) Title Suit No. 117 of 2006 was instituted for a decree for declaration of the plaintiffs' right, right and interest over the suit land and for a declaration that the sale deed dated 05.06.1971 is void ab initio and not binding upon them. The defendant contested the suit by filing written statement on 20.11.2008. It was pleaded that the plaintiffs' father lost his claim in Title Suit No. 05 of 1972 which arose from Probate Case No. 02 of 1972 when First Appeal No. 34 of 1973 filed against judgment dated 02.01.1973 passed in Title Suit No. 05 of 1972 was set aside by the High Court vide judgment dated 22.07.1982. The Letters Patent Appeal being L.P.A No. 39 of 1982 preferred by father of the plaintiffs and brother of Ram Chandra Ram was also dismissed on 11.02.1984.The defendant has also asserted that Rampatia Kaharin whose husband has executed sale deed dated 05.06.1971 in favour of the defendant had instituted Title Suit No. 25 of 1953 for eviction of Gariba Ram from the suit land and the suit was decreed in her favour by judgment dated 10.09.1953. Title Appeal No. 18 of 1953 preferred against the said judgment was dismissed on 31.03.1954 and consequently Gariba Ram was evicted from the suit premises in Execution Case No. 84 of 1954. Pleading that Gariba Ram was the own brother of Rampatia Kaharin and father of Ram Chandra Ram, that is, grandfather of the present plaintiffs, an application under Section 11, C.P.C was filed on 20.04.2009. This application has been dismissed by the trial Judge by the impugned order dated 01.07.2010.

(3.) The trial Judge in the impugned order dated 01.07.2010 has recorded that in the plaint there is no averment in respect of any suit instituted by the plaintiffs or their father in which matters in issue in the present suit was directly and substantially an issue and the same has already been decided. Title Suit No. 25 of 1953 was a suit for eviction and therefore any finding recorded by the Court in the said suit would not constitute res-judicata to the claim of the plaintiffs on their right, title and interest in the suit property. Defendant's claim over the suit land by virtue of sale deed dated 05.06.1971 would depend on the nature of rights claimed by the parties in Probate Case No. 02 of 1972 which has been converted into Title Suit No. 05 of 1972. These issues would require adjudication on facts which in turn would require evidence to be led by the parties. The trial Judge in my opinion has rightly concluded that the issue of res judicata can be decided only when the parties lead evidence in the suit. Moreover, one of the prayers in the suit is for a declaration that sale deed dated 05.06.1971 is void ab initio and not binding upon the plaintiffs. In the above facts, Title Suit No. 117 of 2006 cannot be decided merely by framing preliminary issue on res judicata.