JUDGMENT :

Arup Kumar Goswami, J.

1. Heard Mr. B. Banerjee, learned Senior counsel for the appellant. Also heard Mr. J. Ahmed, learned counsel appearing for the respondents.

2. This second appeal is preferred against the judgment and decree dated 19.05.2004 passed by the learned Civil Judge (Senior Division), Nalbari in Title Appeal No. 1/2004 affirming the judgment and decree dated 16.12.2003 passed by the learned Civil Judge (Junior Division) No. 1, Nalbari in Title Suit No. 53/1998.

3. By an order passed on 02.09.2004, this second appeal was admitted to be heard on the following substantial question of law:

“Whether the learned Courts below were justified in holding that the suit filed by plaintiff is hit by principle of res-judicata under Section 11 of the Code of Civil Procedure and as such the impugned judgment suffers from perversity.”

4. Plaintiff filed the suit registered as T.S. No. 53/1998 praying for right, title, interest and khas possession in respect of Schedule ‘kha’ land measuring 2 Katha 11 Lecha in Dag No. 1087 and land measuring 1 Bigha 2 Katha in Dag No. 1099, totaling 1 Bigha 4 Katha 11 Lecha in Patta No. 262 of Village-Kandhbari, Mouza-Madhyam Barkhetri; for a preliminary partition and also for declaration that a registered sale-deed No. 373/1986 executed by the principal defendant Nos. 2, 3 and 4 in favour of the principal defendant No. 1 is illegal.

5. Case of the plaintiff as projected in the plaint was that the plaintiff as well as his two brothers had purchased ‘kha’ Schedule land by a registered sale deed No. 4164 dated 21.07.1966 from principal defendant No. 2. The sale was objected by the defendant Nos. 3 and 4. However, on 23.02.1978, vide registered Deed of Relinquishment No. 1539, they conferred right, title and interest in favour of the plaintiff. Further case projected is that principal defendant No. 1 tress passed into Schedule ‘ga’ land on 10.01.1991, which is a part of Schedule ‘kha’ land, in respect of which, the plaintiff learnt that the defendant No. 1 had obtained mutation.

6. It was also pleaded that the plaintiff had earlier filed a title suit being T.S. No. 45/1993 in the Court of Munsiff, Nalbari praying for right, title and interest of the plaintiff over the suit land, which is the ‘kha’ Schedule land, for injunction against the defendant No. 1 etc. The said suit was dismissed for default on 15.02.1997. The principal defendant No. 1 filed a title suit being T.S. No. 2/1995 in respect of land in Schedule ‘ga’ and from the aforesaid suit, it was learnt by the plaintiff that the principal defendant No. 1 had purchased land from defendant Nos. 2, 3 and 4 on 16.10.1986 by registered sale deed No. 373/86.

7. The defendant No. 1 filed a written statement stating about the purchase of land by him. It was stated that while he was in possession of the land, he was evicted from 3 Katha 6 Lecha of land purchased by him and thereafter, the plaintiff had constructed a tin house, 2 thatched houses, dug a fishery and planted trees. As a consequence thereof, defendant No. 1 had filed a title suit being T.S. No. 2/95 in the Court of Civil Judge, Nalbari. The plaintiff of the present case had contested the suit and finally the suit of the defendant No. 1 (plaintiff of T.S. No. 2/95) was decreed on 29.03.1997. The present plaintiff also filed an appeal against the said decree and the appeal came to be dismissed on 11.06.1997. The plea of res-judicata was specifically taken by the defendant No. 1 in his written statement.

8. Mr. Banerjee, learned Senior Counsel for the appellant has submitted that the issue of res-judicata was taken up as a preliminary issue and by an order dated 21.06.2000, the learned trial court had held that T.S. No. 53/1998 is barred by the principles of res-judicata in view of the earlier suit filed by the defendant No. 1 being T.S. No. 2/1995, in which decree was passed in favour of the defendant No. 1 on 29.03.1997. The defendant No. 1 had preferred an appeal being T.A. No. 8/2000 whic