- (1.) This appeal is at the instance of the plaintiffs/appellants and is directed against the judgment and decree dated December 21, 2006 passed by the learned Additional District Judge, 1 st Court, Howrah in Title Appeal No.18 of 2006 thereby remanding the suit being Title Suit No.23 of 2000 for fresh trial upon certain directions.
(2.) The question is if the impugned judgment and decree should be sustained.
(3.) The following facts are not in dispute:- (i) One Sukhodamayee Dey had two sons viz. Atul Krishna Dey and Gostolal Dey. Atul Krishna Dey had five sons and out of them Rameswar and Baneswar died as bachelors and out of the remaining three sons, Gadadhar and Bisweswar died leaving behind their respective heirs and another son, namely, Gopeswar left India and he has been residing in England since 1967. (ii) The plaintiffs are the widow and sons of Bisweswar Dey. Apart from the plaintiffs, Bisweswar has one daughter viz. Dr. Lini Srinibasan who has been living in U.S.A. for a considerable period. She has not been made a party in the suit being Title Suit No.23 of 2000. (iii) Gostalal Dey died before 1956 leaving behind his widow, one son Baidyanath and three daughters, namely, Sarala, Sushila and Shitala. The widow of Gostalal Dey died after 1956. Out of the three daughters, two were married and they are living in their respective in-laws' house and Shitala is an unmarried old lady and is now living at Brindaban for some time past. (iv) Previously, Bisweswar Dey filed a suit being Title Suit No.269 of 1985 before the learned Munsif, 2 nd Court, Howrah against Baidyanath Dey and the present defendants praying for their eviction as licensees in respect of the same suit property as mentioned in the schedule of the present plaint. His claim was to the effect that the suit property was the self acquired property of Atul Krishna Dey who purchased the suit property in the benam of his mother Sukhodamoyee Dey and Atul Krishna Dey as 16 anna owner of the concerned property made construction on the land after mutating his name with the Howrah Municipality. The said suit was subsequently transferred to the then learned Munsif, 6 th Court, Howrah as renumbered as Title Suit No.230 of 1988. (v) The present defendants as well as Baidyanath Dey contended in the said suit that the said property was purchased by Sukhodamoyee and on her demise the property had devolved upon those two sons Atul and Gosta. (vi) The suit was dismissed. The Title Appeal being Title Appeal No.21 of 1995 preferred against the order of dismissal was also dismissed. Then the plaintiffs who were substituted in the suit preferred a second appeal before this Hon'ble Court and that second appeal was also dismissed on January 11, 2000. (vii) Thereafter, the plaintiffs/appellants filed a Special Leave Petition before the Hon'ble Apex Court and that application too was dismissed thereby affirming the order of the learned Trial Judge. (viii) Several other proceedings, criminal cases were held between the parties. The plaintiffs contended that the defendants tried to take forcibly possession of the suit property and as such, the present suit bearing Title Suit No.23 of 2000 for permanent injunction and other relifs was filed over the selfsame property. (ix) The defendants/opposite parties herein are contesting the said suit by filing a written statement denying the material allegations raised in the plaint. They have contended that the suit is not maintainable, barred by the doctrine of res judicata, estoppel of judgment, Section 34 of the Special Relief Act and for non-joinder of necessary parties, namely, Smt. Lini Srinivasan. The relief sought for in the present suit has already decided in the earlier suit being Title Suit No.230 of 1988. Accordingly, the suit is not maintainable. (x) The suit was decreed on contests without costs. (xi) The Title Appeal being Title Appeal No.18 of 2006 filed by the defendants/appellants was allowed on contests without costs. The suit was remanded back for fresh trial.;