- (1.) This Court has heard the learned Advocates for the respective parties and has considered the relevant materials on record. The facts of the case, briefly, are as follows: The plaintiff-respondent filed a suit being Title Suit No. 18 of 1998 against the defendant-appellant and one Kalipada Paul praying inter alia for declaration of title, confirmation of possession and permanent injunction. On the death of the said Kalipada Paul, his heirs and legal representatives have been substituted in the proceedings. The said suit was contested by the defendants who filed written statements. The case of the plaintiff-respondent was that the suit land originally belonged to Hazarilal Sarkar and on the death of Hazarilal Sarkar, his widow, daughter and son inherited the said property and sold the same to the plaintiff-respondent by a registered deed of sale dated 14.4.1975. It appears that the suit property is a part of plot No. 11387 measuring about 66 decimals under Khatian No. 3413, Mouza-Bilballi, P.S. Swarupnagar. The plaintiffs case was that the defendant-appellant and the pro-forma respondents have no right, title and interest or possession over such property but since the defendants were threatening with dispossession, the plaintiff had to file the suit. The defendants contested the suit by filing a written statement and it was the case of the defendants that Jhayamoni was a Korfa tenant in the property under the said Hazarilal Sarkar and the defendant had purchased the said property from Jhayamoni on 30.12.1975 for valuable consideration by two registered deeds of sale. According to the defendant, the defendant's father and the defendant were in possession of the suit property but since the plaintiff threatened with dispossession, the defendant in the present suit along the said Kalipada Paul filed a Title Suit No. 167 of 1976 and prayed for declaration of title, confirmation of possession but subsequently the prayer was amended to recovery of khas possession as the original defendants in the present suit were dispossessed during the pendency of Title Suit No. 167 of 1976. The said Title Suit No. 167 of 1976 was contested by the present plaintiff and the suit was decreed in favour of the original defendants in the present suit. The decree was eventually executed through Court and the present defendants recovered the possession of the suit property and since then the original defendant in the present suit has been in peaceful possession of the suit property. According to the present defendants, the present plaintiff has suppressed the material facts.
(2.) The said Title Suit No. 18 of 1998 came up for final hearing when the parties adduced evidence and the learned trial Court by its judgment and decree dated 26.7.2005 dismissed the said suit with the finding that the present suit is barred by law of limitation and it is also hit by the principles of res judicata. According to the learned trial Court the parties in the previous litigation (Title Suit. No. 167 of 1976) and the present suit are the same, the subject matter is identical and the dispute has been finally decided by a competent Court of law in the previous litigation.
(3.) Challenging such judgment and decree of the learned trial Court [learned 1st Court of Civil Judge (Junior Division), Basirhat], the plaintiff filed a Title Appeal No. 38 of 2006 which was placed before the learned Civil Judge (Senior Division), Basirhat. The learned First Appellate Court allowed the said Title Appeal and set aside the judgment and decree passed by the learned trial Court upon the finding that the property involved in the previous Suit i.e. Title Suit No. 167 of 1976 was different from the property involved in the present Title Suit No. 18 of 1998. The learned First Appellate Court took note of the fact that the Khatian number concerning the property in dispute in the two cases are different and that the plaintiff purchased the property mention in Khatian No. 3413 and the defendants purchased the property mentioned in Khatian No. 7672 and, thus, the learned First Appellate Court found that since the properties were different in the two suits, the principles of res judicata cannot be applied.;