- (1.) K. N. Misra, J. This appeal was heard by one of us brother K. N. Goyal, J. who after noticing that there was some conflict in the decisions of single Judges on the legal question involved in this appeal referred this second appeal to be decided by the Division Bench. This appeal has, thus, come up before us for decision.
(2.) BRIEFLY stated the facts of the case are that the plaintiff-appellant had filed a suit No. 239 of 1964 for declaration against the defendant-respondents and in that suit an application under O. 23 R. 1 (2) Civil P C (for short C. P. C.) (as it stood prior to its amendment) for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action was moved. This application was allowed by order dated 28- 9-1967 passed by Munsif, North Sultanpur. The operative portion of the order reads: - "the application is therefore allowed while permitting the plaintiff to withdraw the suit. The plaintiff will pay up the entire cost of this suit to the defendant. " Thereafter, the plaintiff filed the present suit. The plaintiffs' contention was that as a result a partition between the zamindars of village Rohitpara land of Ahata No. 29 and Ahata No. 25 was Sehan of plaintiff and Bhulan, father of defendant 1, who were members of the same family. As a result of private partition between plaintiff and Bhulan, 10 Biswas of land of Ahata No. 25, situated towards north, fell in the share of Bhulan and 1 Bigha land of the said plot situate towards south, fell in the share of the plaintiff. After separation, plaintiff constructed a Sariya in his portion of land in Ahata No. 25 and Bhulan constructed a Sariya on his portion of land. And ever since then, the plaintiff continued to remain the exclusive possession over his portion of land and his Sariya and the defendant continued to be in possession of the land and Sariya which fell in his possession. The plaintiff, thus, pleaded that he has all along been in exclusive possession of his Sariya and the land appurtenant to it. Defendant 1 executed a sale deed dated 27-10-1964 transferring his portion of land of Ahata to defendant 2. Defendant 2, however, threatened to interfere with the possession of the plaintiff over his portion of land of Ahata marked by letters "na" "ka" "sa" and "da" in the site plan annexed to the plaint. The plaintiff, thus, pleaded for the relief of permanent injunction restraining the defendants from interfering with his possession over the disputed Sariya and the appurtenant land. This suit was contested by both the defendants who filed separate written statement. Their defence proceeded on common grounds that the property in suit does not belong to the plaintiff nor he is in possession over the same. They denied the alleged division of Ahata No. 25 and the construction of Sariya in dispute by the plaintiff. It was also denied that the disputed Sariya is situated on plot No. 25. It was further pleaded that defendant 1 was in possession of the Sariya in suit and he validly transferred it to defendant 2 by means of sale deed dated 27-10-1964. The defendants also pleaded that the plaintiff had earlier filed a suit in respect of this very property, but he had withdrawn that suit and no permission was granted to file fresh suit, and, as such, the suit is barred by principle of res judicata. The following issues were framed in the suit on the pleadings of the parties: - (1) Whether the plaintiff is owner of disputed property? (2) Whether plaintiffs is in possession. If not its effect? (3) Whether suit is barred by principle of res judicata? (4) Whether the land in suit and property in suit is not identifiable? (5) Relief?
(3.) ON the consideration of the evidence on record let in by the parties, the trial court decreed the suit of the plaintiff holding that the plaintiff is owner of the property in suit, that the suit is not barred by principle of res judicata and that the property in suit is identifiable on the spot. Aggrieved by the judgment and decree dated 23-9-1968, defendant 2 preferred appeal which was heard and allowed by the lower appellate court vide judgment and order dated 7-9-1972 and the suit of the plaintiff has been dismissed as being barred by R. 1 (3) of O. 23, C. P. C. Since this plea regarding the suit being barred under the said provision was raised at the appellate stage by the defendant-appellants, and, as such, the lower appellate court directed the parties to bear their respective costs of both the courts. Aggrieved by it the plaintiffs preferred the present second appeal. We have heard learned counsel for the parties at some length and have perused the record very carefully.;