- (1.) Heard the learned counsel for the appellant as well as learned counsel for the respondents. Perused the material on record.
(2.) The present second appeal is preferred by the appellant, being aggrieved and dissatisfied by the judgment and decree dated 15th March, 2007 passed in Title (Partition) Suit No. 41 of 2003, by the Court of learned Sub-ordinate Judge, 01st, Pakur, whereby the suit filed by the appellant herein (plaintiff) has been dismissed and the appellant (plaintiff) has been directed to vacate the suit premises described in Schedule B of the counter claim and to hand over the possession of the same to the respondent herein (defendant-1st party) within two months from the date of the order, failing which the respondent herein (defendant-1st party) given liberty to get the decree executed through process of law as well as the judgment and order dated 14th September, 2011 passed in Title Appeal No. 02 of 2007, delivered by the Court of the learned District Judge, Pakur, whereby the learned District Judge held that the impugned judgment and decree dated 15th March, 2007 and 26th March, 2007, respectively passed by the trial Court do not suffer from any illegality or infirmity and are affirmed. The learned Judge did not find any merit in the Title appeal and hence, it was ordered to be dismissed on contest with no order as to costs. Upon hearing the learned counsel for the appellant as well as the respondents herein and on perusal of the judgment and order passed by the learned Sub-ordinate Judge, 01st, Pakur in Title (Partition) Suit No. 41 of 2003 as well as the judgment and order passed by the learned District Judge, Pakur in Title Appeal No. 2 of 2007, it appears that there are concurrent finding of facts recorded by the Courts below. I have perused the judgments passed by the Courts below and on perusal of the same, it appears that both the Courts below have properly framed the issues/points for determination on the basis of the pleadings of the parties and both the Courts below have rightly and properly dealt with and decided the issues/points for determination framed in the suit as well as the appeal after careful consideration of the evidence on record. It appears that in the Title (Partition) Suit No. 41 of 2003, the learned Judge has framed issue No. III, as to whether the suit barred by the principle of res judicata and in Para 71 of the judgment, this issue has been discussed by the learned Judge, wherein, the learned Judge has rightly observed that the essentials for applicability of principles of res judicata are- (i) that the litigating party must be same; (ii) that the subject matter of the suit also must be identical; (iii) that the matter must be finally decided between the parties; and (iv) that the suit must be decided by a Court of competent jurisdiction. On the bass of exhibits, evidences and materials available on record, it has been proved that all the issues which have been raised by the plaintiff in the Title Suit have already been heard and finally decided in a former suit i.e. Title Suit No. 1 of 1973, Title Appeal No. 2 of 1997, Second Appeal No. 67 of 2002 and S.L.P. (Civil) No. 1139 of 2004. Thus, it appears that all the issues, which have been raised by the appellant in the previous round of litigations have been decided up to the Hon'ble Supreme Court, wherein, it was held that Raja Ram Sah was real purchaser and was not 'benamidar' and the suit property is not joint family property of the parties and accordingly, the learned Judge has recorded its finding that the suit is barred by the principle of res judicata. Likewise, the First Appellate Court in Title Appeal No. 2 of 2007 has also dealt with this issue in Para 14 of the said judgment and decided that the suit is barred under the provisions of Section 11 of the Civil Procedure Code, as the parties are same and the subject matter of the suit is also the same. It also appears that the trial Court has framed the issue in the Title Suit as to whether the suit hit by principle of waiver, estoppel and acquiescence and the said issue has been addressed by the trial Court in Para 72 of the judgment and the trial Court recorded its findings against this issue that the suit Is barred by the principle of waiver; estoppel and acquiescence. Likewise, the First Appellate Court while deciding Title Appeal also addressed the issue regarding principle of waiver, estoppel and acquiescence and while deciding this issue in Para 20, held that the suit is also hit by the principle of waiver, estoppel and acquiescence as the plaintiff No. 1 has specifically deposed in Title Suit No. 1 of 1973 in favour of defendant first Party that the suit property exclusively belong to the defendant first party and it was purchased by Raja Ram Sah. It also appears that both the Courts below have also framed the issue as to whether defendant first party had valid cause of action for counter claim and entitled to relief as prayed for in their counter claim and the plaintiff is liable to be evicted from the suit premises, described in Schedule B of the counter claim and while addressing this issue, the Court below has rightly held on going through the materials and evidence available on record that there is no unity of title and possession amongst the plaintiff and defendant first party in respect of the suit property and the plaintiff is not entitled to partition of half share therein as a co-sharer. It has been held by the trial Court that the plaintiff is in permissive possession over the suit property, therefore, the defendant first party have valid cause of action for the counter claim and entitled to get relief as prayed for, in their counter claim and the plaintiff is liable to be ejected from the suit premises described in Schedule B of the counter claim. Likewise, the First Appellate Court in Para 20 of the judgment, while dealing with this point, held that the defendant first party has valid cause of action for counter claim and entitled to get relief as prayed for in their counter claim and the plaintiffs are liable to be ejected from the suit premises described in Schedule-B of the counter claim. According to the learned counsel for the appellant, there is a substantial question of law involved in the matter to the effect that the Courts below have misinterpreted the judgment and decree of the Title Suit No. 1 of 1973 and its appeal, second appeal and the order In Special Leave Petition, when the plaintiff and his mother were performa defendants in the aforesaid suit and no relief has been claimed against them and their status as co-sharer and occupant of the suit premises and whether they are co-sharer or lessee/licensee in the suit properties were not in issue in the earlier suit, as such, not binding upon the plaintiff and the findings of res judicata is not applicable. In fact, no finding is there in the earlier suit that the plaintiff is not living jointly as co-sharer of the suit property and lessee or licensee having permissive possession, as such, the defendant first party is stopped from raising such defence or make a counter claim as such, the judgment and decree of the Courts below are vitiated in law and fit to be set aside and cannot be accepted but the submissions made by the learned counsel for the appellant cannot be accepted in view of the above-referred discussions, whereby both the Courts below have recorded its finding on the issue after careful consideration of the materials available on record. This Court is of the view that the Courts below have not committed any error, material irregularity or illegality while passing the impugned judgment and order. In fact, both the Courts below have properly appreciated the evidence on record. This Court is of the view that no substantial question of law has been made out or rather involved in the matter, which requires interference in concurrent finding of facts recorded by the Courts below whereby, the right, title and interest of the parties in the suit property including the issue regarding res judicata have been crystallized. Hence, the second appeal stands rejected.;