JUDGMENT
S.K. Kar, J.
1. This is a second appeal.
2. It is seen that during pendency of the appeal a petition was filed, (Misc. Case No. 146/2001) praying for substitution of the legal heirs of the appellant-defendant No. 1 Abdul Ali, but no order was passed. The memo of appeal would stand corrected accordingly by substituting the names of Mariam Bibi and Jamiruddin, in place of appellant No. 1, as appellants No. 1 (a) and 1(b).
3. The appellants have challenged the concurrent findings of the two Courts below and the substantial question of law which was framed by this Court goes as follows :–
“Whether the suit is barred by principle of res judicata and accordingly is not maintainable in law.”
4. The brief facts of the case are as hereunder. The respondent-plaintiff Rachman Ali instituted Title Suit No. 96/82 against appellant-defendant Abdul Ali (now substituted) and 21 others claiming decree for the declaration of his right, title and interest and for confirmation of possession with respect to the land measuring 2 Katha 2 Josthi 11 Pon pertaining to the settlement of Dag No. 774 (Dassana Mohal No. 9527/1577) with the given boundary (hereinafter called the ‘suit land’) as described in the schedule attached to the plaint. He further stated that he acquired the title on the strength of his purchase by a registered sale-deed dated 30-12-81 executed and registered in his favour by his vendor, Abdur Rahman, on valid consideration and he was put into physical possession of the same on the strength of such purchase. That the defendants had an intention to purchase the suit land but being un-successful were threatening to dispossess him by way of publication denying his title therein w.e.f. 25-3-82 etc.
5. The suit was contested by some of the appellants presenting their written statement and thereby raising several legal objections in addition to the denial of the allegations made on the plaint and stating, inter alia, that they had right, title and interest over the land described in the scheduled annexed to their written statement and that such title of the defendants was confirmed in a former suit, viz. Title Suit No. 9 of 1962 (renumbered as Title Suit No. 3 of 1966). Accordingly, the suit of the plaintiff/respondent is not maintainable in addition of being barred by principle of res judicata etc.
6. Learned Court of Munsiff framed following issues in the suit:–
” 1. Is there any cause of action for the suit?
2. Is the suit maintainable in its present form?
3. Whether the suit land is properly described.
4. Whether the plaintiff has got right title interest and possession over the suit land.
5. To what relief, if any, is the plaintiff entitled?
6. Is the suit barred by res judicata?”
7. During peremptory hearing of the suit plaintiff examined himself as P.W. 1 and two other witnesses, namely, Ansaruddin (D.W. 2) and Suresh Ranjan Das (D.W. 3). Defendant examined one of them (i.e. deceased Abdul Ali) and six other formal witnesses, namely, Subodh Deb (D.W. 2), Akhil Chandra Dutta (D.W. 3) Mahmmod Ali (D.W. 4), Jitendra Mohan Das (D.W. 5), Sri Banka Behari Chakraborty (D.W. 6) and Mahmad Ali (D.W. 7). Exhibits 1, 2, 3, 5 are revenue-paying receipts (Farog) showing payment of revenues to zaminder, and exhibit 4 is the original sale-deed. Defendant filed certified copy of judgment in T.S. No. 3/66 (9/62). Commissioner’s report, map and certified copies of different sale-deeds which were marked as exts. ‘A’ to ‘G’.
8. After hearing the parties and considering the evidence on record learned Munsiff answered the issues by holding that there is no bar of res judicata (issue No. 6), that the suit land has been properly described and identified (issue No. 3) and that the plaintiff was successful in establishing his right, title and interest over the suit land and that there was cause of action for the suit (issues No. 4 and 1). Accordingly, the relief was granted discarding the objection of non-maintainability of the suit. Learned first appellate Court by judgment and decree passed in Title Appeal No. 35/84 on 29-6-96 affirmed the findings of the Munsiff and dismissed the appeal. Hence this Second Appeal, The substantial question of law formulated in this second appeal may otherwise cover issues No. 2 and 6 of the issues that were framed in the suit.
9. The case of the plaintiff/respondent is very simple as he is claiming title on the strength of his purchase on 30-12-81 by registered sale deed. In the sale deed the land so purchased has been described as pertaining to the present settlement Dag No. 774 (wrongly mentioned as dag 744 in the decree) and bounded by :
Cattle path (‘Gopal’) and on far-
ther east land of Tasir All on the Land of Arjad All on the East Land of Tajmul, purchased from West Ajmal, and land of Balu Mia, Makbul on the North and Settlement Dag No. 775 on South the measuring two kedar two jasti and eleven pon appertaining to earlier Taluk Dassana Mohal 9529/1577, Sundar Ram and situated in Pargona Chapghat, Mouja Bashall.
10. There was a finding of the learned trial Court about the identity of the suit land and it was held that the suit land has been properly described. On the basis of admission of the appellant/defendant No. 1 during his cross-examination the trial Court arrived at such a finding. Although such an admission was not recorded by the appellant/defendant No. 1 in the pleading on the written statement where lands in 5 different plots were described with different areas, without mentioning any settlement dag number, in two different schedules, stating thereupon that schedule No. II land was within land of schedule No. 1. So, it is difficult to find and hold that the former suit and the present suit are with respect to same plot of land. A plain reading of the pleadings in W.S. will show that entire narration of the land given in the W.S. was without showing the link with the suit land described on the plaint. However, there is an admission in the evidence that during the last land settlement survey the land claim by the defendant formed the part of the suit Dag No. 774. It is also to be noted that the sale-deed in favour of the plaintiff/respondent was challenged as fraudulent, inoperative, false and forged document. But no evidence, whatsoever, was adduced in support of such allegations. There cannot be any question to assail the findings of facts, recorded by the Trial Court and affirmed by the first appellate Court, in so far the Identity of the suit land is concern, unless and until any perversity is pointed out in such findings. During the cross-examination appellant/ defendant No. 1 Abdul Ali admitted that all lands claimed by him was not recorded against his name during the last settlement operations. He also admitted that ‘Khatian’ has not yet been issued in his name and he filed no document to show that the suit land originally belonged to the Jamindar Kamini Babu and others, as claimed by him. It is also in his evidence that soon after his purchase he was in joint possession, along with 5 others, of the land purchased by him. Therefore, it can be safely concluded that there is no specific defence vis-a-vis the claim of the respondent/plaintiff with respect to the suit land.
11. Be that as it may, it will be seen that no substantial question of law was framed during admission of this second appeal in this particular aspect. But then, learned lawyer for the appellant has referred me to law given by AIR 1962 SC 1314, Sir Chunulal V. Meheta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd.) where it was observed as below :–
“The proper test for determining whether a question of law raised in the case is substantial would be whether it is of general public interest or whether it directly or substantially effects the rights of the parties and if so, whether it is either and open question in the sense that it is not finally settled by this Court or by Privy Council or by the Federal Court or not free from difficulty or call for discussion of alternative views. If the question is settled by higher Court or general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or the plea raised palpably absurd the question would not be substantial question of law”.
On examination of the law cited I am of the opinion that it enunciates a principle where to and where not to apply any question of law as the ‘substantial’. The present suit is a simple case where the plaintiff/respondent has asked for the declaration of his title on the strength of his purchase and for the confirmation of his possession. His defacto possession subsequent to his purchase along with delivery by his vendor has been supported by P.W. 2, an independent witness, and the evidence of P.W. 2 was neither controverted nor rebutted. During his deposition plaintiff/respondent (P.W. 1) stated that suit land is contiguous to the bank of the pond of his homestead. Thus, the concurrent finding of facts to that effect cannot be re-opened on the reasons as given above.
12. Coming to the question of res judicata, there cannot be any dispute that the principle of res judicata is available as a defence to bar further suit provided, inter alia, that the same subject matter of present suit was also the subject matter in a former suit which was tried between the same parties and was finally settled. This is equally applicable if only certain of the issues were finally settled and heard and also applicable upon the parties who may claim under one or more of parties who joined the former suit. There is no evidence to support any case of res judicata during his deposition by Abdul Ali, D.W. 1. Nowhere he stated that the plaintiff of the present suit was a party in the former suit, T.S. 9/62. His deposition is absolutely silent on that aspect. Learned original Court has recorded a finding that the plaintiff of this suit was not claiming through Mujamul Ali who was a defendant in the former title No. 9/1962 (T.S. 3 of 1966). Even in the written statement what has been stated to raise the bar of res judicata is that plaintiff is close relation of one Mujammil Ali and defendant No. 21 and Mujamul Ali was unsuccessful in that suit for which the present suit has been filed with baseless and false pleadings in order to gain illegally. Thus, if we carefully examine the written statement there is no specific assertion of facts to plead any case of bar of res judicata. It will be seen that the defendants were making a callous and confusing claim without any reference to the suit land which has been very categorically described in the plaint of the suit in question. It appears that the appellants/defendant were blowing their own trumpet careless of the true defence they were supposed to take. In the former suit dispossession of a small plot of land by Mujammil Ali was alleged and there is absolutely nothing to connect that Mujammil with the plaintiff/ respondent of this suit/appeal. The appellant raised an uncertain and frivolous claim under all probability.
13. Therefore, Courts below have rightly held that there is no question of bar of res judicata under the facts and circumstances of the case. There is nothing to show from the materials on the record of the suit that there was any former suit between the same parties are between the parties under whom or any one of them the plaintiff is claiming. Accordingly, AIR 1979 SC 551 Iswardas v. State of M.P. is also of no help to the present appellant. It was held therein as follows :–
“In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim”.
There is nothing to dispute the law cited but facts are not available to apply the ratio here.
14. In the result, I find the appeal is without merits, and is dismissed.
15. The respondent/plaintiff Rachman Ali will be entitled to recover a lump sum/nominal costs of Rs. 5,000/- (five thousand) only from the appellant principal defendants.