SAFRUDDIN MOMIN Vs. BEGUM NISSA

JUDGEMENT

(1.) THIS appeal was admitted for hearing on the following substantial question of law :

(2.) THE defendants are the appellant. The appeal is against judgment of reversal. The plaintiffs-respondents filed Title Suit No. 04 of 1988 for declaration of their title, ownership and possession over the suit land and for recovery of possession. The plaintiffs' case was that the suit property was jointly recorded in the names of Dhano Momin and Aulad Momin showing separate possession and ownership of different plots in the last survey record of right. The plaintiffs are successors in interest of the recorded tenant Dhanu Momin. Dhanu Momin died leaving behind two sons and two daughters who inherited the suit property. The suit was contested by the defendants by filing written statement stating inter alia that the plaintiffs filed earlier Title Suit No. 06 of 1986 which was dismissed for default and, therefore, the subsequent suit is barred by res judicata, estoppel and acquiescence. The trial Court after considering the facts and evidence brought on the record, decided the issue with regard to title in favour of the plaintiffs - respondents. However, on the issue of jurisdiction of the Civil Court, the trial Court held that according to Section 5(1) of the Santhal Parganas Settlement Regulation Act, 1872, the Civil Court had no jurisdiction. Aggrieved by the said judgment and decree, the plaintiffs-appellants field Title Appeal No. 02 of 2006. The appellate Court recorded a finding that the earlier suit was not dismissed, rather the Settlement Officer transferred the file to the trial Court in accordance with the provisions of Section 5A of the S.P.S. Regulation and, accordingly, the trial Court has jurisdiction to decide the suit. Consequently, the appellate Court reversed the finding of the trial Court with regard to jurisdiction and allowed the appeal.

(3.) IN my opinion, even assuming that the earlier suit was dismissed for non- prosecution, the subsequent suit cannot be held to be barred by res judicata, estoppel or acquiescence. So far the question of jurisdiction is concerned, admittedly, the defendantsappellants did not raise any question with regard to jurisdiction in the trial Court inasmuch as there was no pleading in the written statement. On the contrary, the defendants submitted to the jurisdiction of the trial Court and got favourable judgment. In my view, therefore, at the appellate stage, the defendants-appellants cannot be allowed to raise the question of jurisdiction.