Ranjit Kumar Paul vs Mitra Paul And Ors

Heard Mr. D. Chakraborty, learned senior counsel assisted by Mr. H. Laskar, learned counsel appearing for the appellant as well as Mr. S. Bhattacharjee, learned counsel appearing for the respondent No.8. None appears for the other respondents when the matter is called out.

This is an appeal under Section 96 of the CPC from the judgment dated 31.03.2016 delivered in Title(Partition) Suit No.35 of 2010. By the said judgment, that suit has been dismissed.

Mr. S. Bhattacharjee, learned counsel appearing for the respondent No.8 has taken a preliminary objection contending that the suit is barred by the res-judicata under Section 11 of the CPC inasmuch as the same issue between the same parties has been decided in the Title Suit (Partition) No 01 of 2010 [the former suit].

By the said judgment dated 31.03.2016 delivered in Title Suit (Partition) No 01 of 2010 it has been observed as follows:

"In the result, it is hereby held that the plaintiffs have succeeded to establish the cause of action for the suit land the suit is allowed and decreed preliminary on contest with cost with declaration of the share of plaintiffs and defendants as under :

(a) Plaintiffs No.1 & 2 and pro-defendants No.11, 12, 13 & 14 being the legal representatives of deceased Raj Kumar Paul are jointly entitled to get 50% of the total land measuring 9.92 acre (as reflected in khatian No.359/1, 359/2, 359/3 & 359/4 vide Exbt.2) less the sold out portion of land measuring 7 ganda, that is to say, 4.96 acre less 7 ganda out of the total land measuring 9.92 acre."

(b) Defendant No.1 Ranjit Kr. Paul and his mother Radhamani Paul were jointly entitled to 50% of the total land measuring 9.92 acre (as reflected in khatian No. 359/1, 359/2, 359/3 & 359/4 vide Exbt.2) plus the sold out portion of land measuring 7 ganda, that is to say, their joint share portion will be 4.96 acre plus 7 ganda out of the total land measuring 9.92 acre.

(i) The exclusive share of defendant No.1 Ranjit Kr. Paul will be ½ of (4.96 acre + 7 ganda) and Radhamoni Paul being the only legal heir of pre- deceased son Rathindra Paul will get ½ of (4.96 acre + 7 ganda).

(ii) Now the share of Radhamoni Paul will again be equally divided between her son and daughter namely Ranjit Kr. Paul and Tilottama Paul since deceased. So Principal defendant No.1 Ranjit Kr. Paul is entitled to get ½ of (4.96 acre + 7 ganda) plus ½ of the share of his deceased mother Radhamoni Paul as indicated in clause (i) above.

(iii) Principal defendants No.5 to 10 being the legal representatives of deceased Tilottama Paul are jointly entitled to get ½ of the share of Radhamoni Paul as assessed in clause (i) above.

(c) One common passage or path shall be made within the suit premises out of the share of both parties so that each shareholder can use and enjoy same towards their egress and ingress to their respective dwelling hut.

(d) Since the suit property is jointly possessed by both parties so at this juncture perpetual injunction cannot be granted to plaintiffs against the defendants that may create trouble at the time of division of their share. At this stage plaintiffs shall be allowed to use their existing path within the suit land for their ingress and egress to their dwelling hut till the passing of final decree and in case of complaint of further obstruction by any of the parties exemplary cost may be imposed on filing of appropriate application."

In the said judgment, it has been clearly stated that the suit land as described in the schedule is exclusively possessed by the defendant No.8 by way of denying the interest of the other co-parceners. The schedule of the suit land is as follows :

SCHEDULE (Suit land)

District : North Tripura, P.S. and Tehshil- Dharmanagar, mouja-Dharmanagar town, Final khatian No.1159, old C.S. plot no.6064 (Part) Corresponding to R.S. plot no.6901, Basthu-Dokan, are 0'026 acre.

AND WITH

the Construction standing thereon such as -

A pucca Construction with R.C.C. roofing, north- facing, of measurement about 9 Cubits x 15 Cubits with some vacant land towards its South.

Both this land and this Construction together being called suit property."

According to Mr. Chakraborty, learned senior counsel the said land [the suit land] was not part of Title Suit (Partition) No 01 of 2010 and as such, the plaintiff-appellant has instituted the suit claiming his right over the said land as described in the schedule of the plaint.

But Mr. S. Bhattacharjee, learned counsel appearing for the respondent No.8 has submitted that in the judgment dated 31.03.2016 it has been categorically observed that the preponderance of probability in believing the fact of existence and perfection of title in respect to the land of Dharmanagar Market under Khatian No.1159 lies in favour of the case of the plaintiff of the suit being Title Suit (Partition) 01 of 2010 and it can be inferred that the title in respect of the land measuring 0.026 acre has been perfected by way of adverse possession and consequently, the claim of the defendant No.1 [the plaintiff in the suit being Title Suit (Partition) 35 of 2010] that the said land recorded in Khatian No.1159 is part of joint property cannot be accepted as the right to recover against the adverse possession has been extinguished by efflux of time. The plaintiff in the Title Suit (Partition) 35 of 2010 did not claim any title against the adverse possession maintained by the respondent No.8 within the period of limitation of 12 years in terms of Article 65 of the Schedule of the Limitation Act, 1963. The said finding [at Para-36 of the judgment dated 31.03.2016] has not been challenged by either of the parties of the T.S.(P)01 of 2010, even though, Title Suit (Partition) 01 of 2010 and Title Suit (Partition) 35 of 2010 were tried analogously.

Thus, the said decision since remained un-challenged is binding on the plaintiff and as such the claim of the plaintiff is barred by res-judicata and therefore, this appeal is devoid of merit. Accordingly, the appeal is dismissed.

In the result, the impugned judgment dated 31.03.2016 is affirmed.

Draw the decree accordingly. Send down the LCRs thereafter.