1. Heard Mr. P.S. Deka, learned senior counsel, assisted by Mr. B. Bhagwati, learned counsel for the appellants and Mr. N. Choudhury, learned counsel for the respondents.

2. Assailing concurrent finding, the present appeal under Section 100 CPC is directed against the First Appellate Court’s judgment and decree dated 12.11.2009 passed by the learned District Judge, Morigaon in T.A. 14/2009, by which the appeal was dismissed and the judgment and decree dated 31.03.2009, passed by the learned Munsiff No. 1, Morigaon in T.S. 25/2007, by which the suit was decreed on contest, was affirmed. The appellants are the principal defendant nos. 1 and 2 in the suit.

3. It would be appropriate to mention that on death of the appellant no. 1, he has been substituted by order dated 30.08.2017, passed in connected I.A. (C) 1724/2017. It may also be mentioned that the names of the respondent nos. 3 to 9, 11 and 16 have been struck off by order dated 19.02.2016. Therefore, only the principal respondent no. 1 (plaintiff) and the proforma respondent nos. 2, 10 and 12 to 15 (proforma defendant nos. 2, 9 and 11 to 14) remain as respondents in this appeal.

4. This appeal was admitted for hearing on the following substantial question of law:

Whether the suit being T.S. No. 25/07 filed by Toseswar Sarmah relating to 14 lechas of land is barred by provision of Section 11 of the CPC res-judicate as the same land has already been adjudicated upon the earlier suit being T.S. No.2/06 (T.S. No. 10/03) by District Judge, Morigaon between the same party and same land.

Case of the respondent no. 1 (plaintiff):

5. The respondent no. 1 had filed T.S. No. 25/2007 for declaration of right, title and interest over 14 lessa land out of 2 katha 31/2 lessa of land, being 50% of 4 katha - 7 lecha land covered by dag no. 842 of P.P. No. 272 of Morigaon Town Kissam under Morigaon Mouza. The said land is morefully described in the Schedule of the plaint. The respondent no. 1 had also prayed for partition of such 14 lecha land and for delivery of possession thereof.

6. It was projected that the land covered by dag no. 842 originally belonged to two brothers, namely, Tumor Kalita and Uma Kalita, both having equal shares. Uma Kalita died leaving behind the appellants (defendant nos. 1 and 2) and Sitaram Kalita (since deceased), who was the husband of Smt. Geeta Kalita (defendant no. 3). The said Smt. Geeta Kalita is not a party in this appeal. It was claimed that the said Sitaram Kalita was occupying 1 katha - 9 lecha land along with a house thereon, which he sold to the respondent no. 1 (plaintiff) vide sale deed bearing registered deed no. 185/03 and delivered possession to the principal respondent no. 1.

7. Thereupon, the appellants had filed a suit, which was registered as T.S. 10/2003. In the said suit, Smt. Geeta Kalita and Toseswar Sarmah (principal respondent no. 1) were the principal defendants and the proforma respondents herein were arrayed as proforma defendants. The suit was for declaration of right, title and interest, confirmation of possession, permanent injunction and cancellation of sale deed no. 185/2003. The said T.S. 10/2003 was decreed on contest vide judgment and decree dated 16.09.2005 passed by the learned Civil Judge (Senior Division), Morigaon. The principal respondent no. 1 had an appeal against the judgment and decree passed in T.S. No. 10/2003, which was registered as T.A. No. 2/2006. The learned District Judge, Morigaon partly allowed the appeal and the decree passed by the learned Trial Court was modified by granting the following reliefs:

(a) Right, title and interest of the plaintiff was declared on ‘A’ schedule land leaving 14 lessa on its eastern boundary and the defendants are also restrained from disturbing the plaintiffs in enjoying the aforesaid land (beyond 14 lessas).

(b) The sale deed no. 185 dated 28.01.2003 shall be valid only for 14 lessa land falling on the eastern portion of ‘A’ schedule land and the deed will be inoperative and ineff