R.N. Misra, J. - (1.)PLAINTIFFS have appealed against the affirming judgment and decree of the learned Subordinate Judge. Jajpur, in a suit for title, possession and permanent injunction.
(2.)THEY came to Court making the following allegation: Plot No. 227 with an area of 20 decimals appertained to Khata No. 3 and constituted ancestral property of the Plaintiffs and Defendant No. 3. In 1951 the third Defendant sued for partition which was decreed finally on 18 -1 -1957. Half of the disputed property fell to the share of Defendant No. 3 and the other half came to the Plaintiffs jointly and Plaintiffs 1 to 4 ultimately became owners of the half share. Defendant No. 3 sold her share of 10 decimals out of the disputed property to Defendant No. 1 who is wife of Defendant No. 2 under a registered sale deed dated 7 -3 -1960 and Defendant No. 1 brought money suit No. 41 of 1967 against Plaintiff No. 1 (deceased) claiming damages of Rs. 120/ - for unauthorised cutting of certain trees. The original Plaintiff No. 1 contested the suit claiming that in the alleged partition, the eastern half of the property had fallen to the share of the Plaintiffs, whereas the western half had gone to the third Defendant and accordingly Defendant No. 1 who was Plaintiff in the money claim had no title to the eastern half of the property from which trees had been cut. The money suit was dismissed in the trial Court by accepting the defence raised in the said suit. In appeal, Plaintiff's title in that suit was accepted but relief was not granted on the finding that the factum of cutting of trees had not been established. Thereafter Plaintiffs brought the present suit for declaration of their title, confirmation of possession and alternately recovery of possession and for issue of a permanent injunction on the footing that a cloud had been cast over their title and Defendants 1 and 2 taking advantage of declaration of their title in the earlier litigation were out to disturb their possession and enjoyment.
Defendant No. 1 alone entered contest and pleaded that in the partition the eastern half of the property had fallen to the share of Defendant No. 3. her vendor, and she has been put into possession of that portion on the basis of the sale. In the earlier litigation for damages (Money Appeal No. 1 of 1968) her title had been declared and the said decision having become final operated as res judicata between parties on the question of title. Accordingly Plaintiffs' suit was liable to be dismissed.

(3.)FOUR Issues were framed in the trial Court including one on the question of bar of 'res judicata. On 5 -8 -1972, Defendant No. 1 moved the trial Court that the issue of res judicata may be taken up and if that defence doe; not succeed, the suit may be decreed. By order dated 8 -1 -1972, the trial Court accepted the offer of Defendant No. 1 and posted the matter for argument as a proposition of law and ultimately accepted the plea of res judicata. Therefore, the suit was dismissed. The lower appellate Court has also affirmed the decree of the trial Court.