(1.) This is a plaintiff's appeal by leave and it arises out of an order passed on 2.2.1995 in Civil Revision No. 3152 of 1995 making the Rule absolute upon setting aside the judgment and order 7.7.1993 passed by the Assistant Judge, Chandpur rejecting an application under Order 7 Rule 11 of the Code of Civil Procedure to reject the plaint of the appellant's Title Suit No. 98 of 1963.
(2.) Leave was granted to consider that the learned single Judge of the High Court Division erred in not considering that the suit barred by res judicata or not is a matter to be decided at the time of trial by framing an issue and same could not be decided from a mere reading of the plaint.
(3.) Material facts necessary for disposal of the point raised briefly are that the appellant as the plaintiff instituted the aforesaid Title Suit No. 98 of 1993 in the Court of Assistant Judge, Chandpur for a declaration that the judgment and decree passed in Title Appeal No. 127 of 1988 in respect of the property mentioned in 'kha' schedule under the schedule 'ka of the plaint is null and void and not binding upon him. Her case was that the suit property originally belonged to Ali Amjad and Syed Ali who transferred 16 acre of land in Plot No. 546 to Bakhar Ali Molla husband of the plaintiff and predecessor of others who sold the same to one Abdul Karim Miajee by a registered deed of sale on 7th July, 1948 that subsequently the said Abdul Karim Miajee by registered deed of sale dated 3rd November , 1951 re-transferred the suit land to aforesaid late Bakhar Ali Molla, Abdul Jabbar Molla, Jafor Ali Molla, that Abdul Jabbar Molla purchased the share of Jafar Ali Molla by a registered deed of sale on 11th November, 1955. Subsequently, Abdul Jabbar Molla transferred .8 acre of land to the plaintiff. The plaintiff's further case was that her husband Bakhar Ali Molla never transferred the suit land to any body but defendant No. 1 created a false deed of agreement on 18th August, 1978 for sale of the suit property and then he filed title Suit No. 516 of 1979 against his husband for Specific Performance of Contract and obtained a decree on 17 May, 1992. Hence the suit.