1. This appeal is at the instance of the plaintiff who filed Title Suit No, 94 of 1960 in the 1st Court of Munsif, Chikandi for declaration of title to the lands in suit and also for recovery of possession therein.
2. The plaintiff's case, inter alia, is that there was an occupancy raiyati holding comprising 2.78 acres of land at a appertaining to Khatian No, 41 of Mouza Nilagun belonging to Nitya Nanda Mondal and 5 others and that by an amicable arrangement Nitya Nanda was in exclusive possession of four R.
3. S. Plots, namely, Nos. 322, 324, 325 and 326 and the plaintiff Numl Islam, purchased '08 acre of land of R. S. Plot No, 322 and '40 acre of land of R. S. Plot No, 325 by two registered kabalas dated 1-10-56 from the Nitya Nanda and after the said purchase the plaintiff has been possessing the same by constructing homestead therein. It is further stated that by another kabala of the same date the plaintiff purchased. 29 acre of land of Plot No, 324 and '35 acre of land of Plot No, 326 from Nitya Nanda and the defendant Nishi Kanta having claimed to be a co-sharer of the said jama instituted three Miscellaneous cases, namely, 338 of 1958, 10 of 1959 and 11 of 1959 for pre-empting the said three sales under section 26-F of the Bengal Tenancy Act and the said three Miscellaneous cases were heard analogously and were allowed. Thereafter the plaintiff preferred an appeal against the decision passed in Misc. Case No, 338 of 1958 in which the appellate Court found that the kabala on the basis of which the defendant claimed to be a co-sharer was fraudulent document and accordingly the defendant's claim for pre-emption was rejected and the said decision of the appellate Court was upheld. Thereafter the plaintiff instituted the present suit with regard to the lands in suit which were the subject-matter of the Misc. Cases Nos. 10 and 11 of 1959.
4. The suit was contested by the defendant by filing a written statement. The defendant denied all the material allegations made in the plaint and contended, inter alia, that in view of the decision in the Misc. Cases Nos. 10 and 11 of 1959 allowing the pre-emption the instant suit was not maintainable, and the same was barred by the principle of res judicata.
5. The plaintiff's suit was decreed by the learned Munsiff and on appeal the learned District Judge reversed the decision of the learned Munsiff. The learned Munsiff while decreeing the suit directed the plaintiff to deposit Rs, 50 as compensation within 15 days from the order with a further direction that in default of the order the suit would stand dismissed with costs. The plaintiff also preferred a cross-objection against the said order of payment of compensation, and it was also dismissed by the learned District Judge. The plaintiff having felt aggrieved by the said decision of the Appellate Court below preferred the instant appeal to this Court.
6. Mr. Mohammad All, the learned Advocate appearing on behalf of the appellants has taken me through the judgment of both the Courts below. His contention is that the learned District Judge erred in law in holding that the present suit is barred by the principle of res judicata. In developing the said argument Mr. Ali submits that the kabala which was the basis for pre-emption sought for by the defendant was found to be a fraudulent document and the defendant was not found to be a co-sharer and that although no appeals were preferred against the decision in two Misc. cases namely, 10 and 11 of 1959 which were heard analogously with Misc. Case No, 338 of 1958, on appeal against the decision in Misc. Case No, 338 of 1958 having touched the whole basis of the defendants' contention, the plaintiff's title to the lands in suit should be declared in spite of the decision made in the Misc. Cases Nos. 10 and 11 of 1959. The learned Advocate seriously contends that it is the judgment which is to be considered in deciding a point of res judicata and not decree and as the decision on the main point that the defendant was not a co-sharer with regard to the holding in question by virtue of a fraudulent document he should not be allowed to maintain his title and possession in the lands in suit by virtue of the decision made in Misc. Cases Nos. 10 and 11 of 1959. In this respect he also refers to Exh. 3 (a) which is a judgment passed in another preemption proceeding in Misc. Case No, 324 of 1959 wherein it was found that the plaintiff was not entitled to pre-empt the land involving in the said proceeding by virtue of the decision in the Misc. Cases Nos. 10 and 11 of 1959. Moreover, the learned Advocate in support of his contention has referred me to the decision in the case of Pratnatha Nath Choudhury and others v. Rai Dwarka Nath Chakravorty Chaudhury Bahadur and others . In that case a Division Bench of this Court held that when several suits involving common issues were tried together and were disposed of by one judgment, and appeals were preferred against the decrees of only some of the cases and not against all, the said appeals in the other cases were not barred by the principle of res judicata.
7. Mr. Moinul Huq, learned Advocate for the respondent on the other hand submits that there is no question of res judicata involved in this particular case but the present suit is not maintainable and that the decision in Misc. Cases Nos. 10 and 11 of 1959 which were not appealed against cannot be reagitated in the instant suit wherein there is no allegation of fraud made against the defendant.
8. The learned Advocate further submits that the present suit is really an ingenious way of getting rid of the decision in the Misc. Cases Nos. 10 and 11 of 1959 although no appeals, were preferred against the same.
9. I have carefully considered the judgment of the Courts below and the arguments advanced on behalf of the respective parties by their learned Advocate. I am unable to find any substance in the contention of Mr. Ali in this appeal. It is true as it has been agitated by Mr. Ali that the 3 misc. cases were heard analogously and disposed of by one judgment although in fact it referred to only the Misc. Case No, 338 of 1958. But the decision which were made in the two Misc. Cases Nos. 10 and 11 of 1959 remained intact in view of the fact that it was not set aside by any superior Court. The defendants could certainly have the said two decisions as a shield against the claim of the plaintiff1 in an independent suit instituted by him in effect to set aside the said decisions of the two misc. cases. If the present suit be found to be maintainable it would mean that a litigant may not prefer any appeal against the particular decision but he can get rid of the said decision by filing an independent suit. This in my opinion is against the well settled principle of law. The learned District Judge proceeded on the view that the suit was barred by the principle of res judicata although he was not required to decide the case on the same point. It is really a case to be decided on the principle as I have already stated above that a decision although may appear to be wrong unless the same is set aside by a superior Court in due course of law it cannot be set at naught in an independent suit without any allegation of fraud against the defendant. The decision in the Misc.
10. Case No, 338 of 1953 as found from Exh. 3 (a) has no bearing on the point at issue in this particular case. In the said case the defendant was not successful in pre-empting another sale by virtue of an appeal which was allowed against the decision in the said Misc. case but that would not mean that the effect of the decision in Misc. Cases Nos. 10 and 11 of 1959 can be got rid of in the independent suit like the present one. The principle enunciated in the decision cited by Mr. Ali has thus no application in the facts and circumstances of the present case. In the said case some rent suits were tried analogously and some appeals were preferred against the decision in some of the rent suits and a point was urged to the effect that the said appeals were barred by the principle of res judicata as some of the decisions in some of the rent suits were not appealed against. In the facts and circumstances of the said case the Division Bench held that the said appeals were not barred by the principle of res judicata. So I am of opinion that the principle enunciated in the said decision is not applicable in the facts and circumstances of the instant case before me.
11. In the result, the appeal is dismissed with costs ; and the judgment and decree passed by the appellate Court below are affirmed. (1957) 7 P L R (Dacca) 209