The main legal point established is the application of constructive res judicata and Order II Rule 2 of the Civil Procedure Code to determine the maintainability of subsequent suits.

JUDGMENT

Siddhartha Roy Chowdhury, J. - Challenge in this appeal is to the judgement and decree passed by the learned 10th Bench of City Civil Court at Calcutta in Title Suit No. 519 of 2001 and Title Suit No. 671 of 2001, both the suits were tried analogously and disposed of by a common judgement and decree passed on 20th July, 2007. For proper appreciation of the appeal it is expedient to delineate the facts of the case.

2. Claiming to be the owners of the suit property Sri Subir Kumar Banerjee and Sri Saswata Bandyopadhyay, the appellants herein, filed a suit for eviction being Title Suit No. 519 of 2001.Title Suit No. 671 of 2001 was also filed by the plaintiffs Sri Subir Kumar Banerjee and Sri Saswata Bandyopadhyay against Madhusudan Ghosh seeking Permanent, Mandatory and Prohibitory injunction stating, inter alia, that they have purchased the suit premises on 8th January, 2001. Their father Bhupendra Kumar Banerjee was a tenant in respect of the entire premises except two rooms, one kitchen, one bath with privy and verandah on the ground floor, which was in occupation of one Shailesh Chandra Sengupta another tenant under Subala Bala Sahu. The plaintiffs have been residing therein for more than 30 years. After the demise of Sailesh Chandra Sengupta, his widow and son became the tenants in respect of the property occupied by them. While in possession of two rooms, kitchen, bath and privy, Senguptas gave license to Madhusudan Ghosh, the defendant herein in respect of one room and also allowed him to use the bathroom and privy. On 16th October, 2000, Senguptas surrendered the tenancy in favour of the erstwhile owner Subala Bala Sahu; delivered possession of one room, kitchen to her. Said Subala Bala Sahu delivered possession of said room and kitchen to the plaintiffs after execution of deed of sale, on 8th January, 2001. When plaintiffs were entering into the said room the defendant obstructed them. Sewerage system of the entire building is lying underneath the passage in the portion occupied by the defendant and their access to that passage was denied. On 16th January, 2001, the defendant dispossessed the plaintiffs from the said room and kitchen by putting padlock on the door. Police was informed which was reduced into writing vide G.D. Entry No. 1730 dated 16th January, 2001.

3. On 17th January, 2001, the elder brother of the defendant obstructed the wife of plaintiff no. 1 and assaulted her with fist and blows. On 18th January, 2001, an application under Section 144 (2) of the Code of Criminal Procedure was filed and prohibitory order was passed by the Executive Magistrate. The plaintiff lodged complaint on 20th February, 2001, and on 23th October, 2001, being harassed by the defendant, who wanted tenancy right in respect of part of premises occupied by him. On 25th March, 2001, the plaintiff informed the police against the defendant, followed by complaint on 28th March, 2001. The plaintiffs were compelled to file suit for permanent mandatory and prohibitory injunction only to restrain the defendant and his family members, men and agents from disturbing and/or interfering with the peaceful ingress and egress of the plaintiff to the room and to northern gate on the ground floor.

4. Refuting such allegations made against him, the defendant in his written statement contended, inter alia, that he has been possessing the suit property lawfully without having any intention to create any disturbance to anyone. The plaintiffs have filed the false cases before various authorities including the Executive Magistrate. The plaintiffs have filed Title Suit No. 519 of 2001 against the defendant without any reason; no attempt was ever made by defendant to dispossess the plaintiff from the suit property in any manner whatsoever.

5. Learned Trial Court after considering the issues was pleased to hold that the suit as framed is not maintainable inasmuch as barred by the constructive res judicata and it is further observed that when equally effi