P.C.MALLICK, J. - (1.) THIS is a suit to establish the plaintiff's title in premises No. 36, Derpa Narayan Tagore Street. The property in question is situate within the jurisdiction of this Court. The Administrator General as the administrator de bonis non to the estate of Raja Profulla Nath Tagore claims this property as included in the estate. Raja Profulla Nath Tagore died on July 2, 1938. It is common case that he left a will. The residuary legatees are his five sons. The five sons along with others were appointed executors. On their application a probate was granted by this Court to the said five sons of the Raja. Subsequently the administration of the estate was given by an order of this Court to the Administrator General.
(2.) IT is pleaded in the plaint that the premises in suit is the secular property of the late Raja. During his lifetime Raja enjoyed the property as his own and thereafter it was being treated as such by his family. Only in two rooms the deity defendant was allowed to reside. The deity defendant has no title in the said property which constituted the secular property of the late Raja, it is pleaded that in Suit No. 258 of 1946 instituted in the Court of Subordinate Judge, Alipore, the property has been declared to be debottur belonging, to the defendant deity. This decree has thrown a cloud over the plaintiff's title. Hence the present declaratory suit has been instituted to establish the title of the late Raja and his estate in the said property. By way of consequential relief injunction has also been prayed for. Apart from the deity there are a number of other defendants. They have been impleaded in their individual capacity as well as in their capacity as shebaits of the defendant deity. Of the defendants impleaded except the deity defendant and the defendant Debaprosad Tagore who is a minor, no other defendant has entered appearance for contesting the suit. Debaprosad Tagore is a minor represented by Phanilal Mallick as his guardian. So also Phanilal Mallick has been appointed guardian of the defendant deity. Two written statements have been filed by Phanilal as such guardian, one on behalf of the minor defendant, Debaprosad Tagore and another on behalf of the deity. The defence is substantially the same. It is contended that the suit premises do not constitute the secular estate of Raja Profulla Nath Tagore but belong to the deity defendant and that the title of the deity defendant has already been declared by the suit in the Alipore Court referred to before. It is contended that the present suit is barred by res judicata or principles analogous thereto by reason of the decisions in Title Suit No. 258 of 1946 heard and decided by the Fourth Subordinate Judge, Alipore and confirmed in appeal by this Court in Appeal No. 54 of 1952. If is also contended that the suit as framed is nor maintainable.
(3.) TWO issues have been raised which I am called upon to decide at this stage by way of preliminary issues. They are: (1) Whether the suit is barred by res judicata or principles analogous thereto by reason of the judgment in the Alipore Court? (2) Whether the suit is maintainable? ;