Nirupama Mishra and Others vs The State of Bihar and Others

S.J. Mukhopadhaya, J.—The Plaintiffs-Petitioners have preferred this revision application against the order dated 15th July, 1995 passed in Title Suit No. 236 of 1993. By the impugned order the learned Sub-Judge IV, Bhagalpur allowed the petition which was filed by the Intervener-Defendant-opposite parties under Sub-rule (2) to Rule 2 under Order 14 of the CPC and ordered to decide a preliminary issue, as to whether the suit is barred by the law of resjudicata or not.

According to the Defendants the Court below rightly framed the issue of res-judicata as preliminary issue as the matter stood decided in an earlier suit. It is stated that one Title Suit was filed by Shrimati Panna Dai in which she claimed right and title with respect to the suit land, in which the husband of the Petitioner (Basant Kumar Mishra) alongwith the other Petitioners were Defendants. The suit was decreed in favour of said Panna Dai against which the Petitioners earlier moved in the First Appeal No. 15 of 1968 which was also dismissed for default. It is stated that Basant Kumar Mishra having died by that time the Petitioner No. 1 was substituted and he was the Appellant in the said First appeal alongwith the rest of the Petitioners. Further according to the Defendants the State of Bihar acquired the total land of Shrimati Panna Dai and thereby stepped into the shoes of Panna Dai and after such acquisition allotted the suit land in question to the Defendants. It is stated that the aforesaid admitted facts show that the question framed by the Court below is a pure question of law and can be adjudicated as preliminary issue.

According to the Plaintiffs-Petitioners the State of Bihar had not acquired the total land, of Srimati Panna Dai, measuring 5 acres 36 decimals. It was only 4 acres 57 decimals of land acquired by the State of Bihar out of plot No. 22611 and other plots in pursuance of land Acquisition case No. 3/63-64. No land was acquired out of Plot No. 22618 which is the land in question in the present suit. It is submitted that the question being a mixed question of facts and law the Court below should not have ordered to decide the issue as a preliminary issue.

It appears from the pleadings made by the parties and the impugned order that the aforesaid stand was also taken by the Plaintiffs-Petitioners before the Court below. However, the Court below while coming to the finding that in pursuance of Land Acquisition Case No. 3/63-64 the plot No. 22618 was also acquired and acquisition compensation paid to Panna Dai Such finding was given by the Court below on the basis of photo stat copies of the objection petitions filed by Panna Dai. It has not taken into account the other aspects including the fact as to whether any notification of acquisition was issued by the State of Bihar or not with respect to Plot No. 22618. According to me these are the question which can be gone into after verifying the different evidences. The question being a mixed questions of facts and law cannot be decided as a preliminary issue. The Court below having erred in coming to the conclusion that the issue of res-judicata is a preliminary issue. I set aside the impugned order dated 15th July, 1995 passed in Title Suit No. 236 of 1993.

It is expected that the suit will be decided at an early date.

This Revision application is allowed with the aforesaid observations.