IMPORTANT POINT
The court affirmed that a subsequent suit is maintainable if the cause of action differs from a previously dismissed suit, emphasizing the necessity of establishing title through proper documentation.

JUDGMENT :

Heard Mr. S.R. Gogoi, learned counsel for the appellants and also heard Mr. S.P. Choudhury, learned counsel for the respondents.

2. In this appeal, under Section 100 of the Code of Civil Procedure, 1908, the appellants have challenged the correctness or otherwise of the impugned judgment and decree dated 03.04.2013 passed by the learned Civil Judge, Nagaon, hereinafter the First Appellate Court, in Title Appeal No.29/2011. It is to be noted here that vide impugned judgment and decree dated 03.04.2013, the learned First Appellate Court had upheld and affirmed the judgment and decree dated 25.07.2011, passed by the learned Munsiff No.1, Nagaon, in Title Suit No.106/2006.

3. The back ground facts leading to filing of the present appeal is briefly stated as under:-

“The respondents as plaintiffs have instituted a civil suit, being Title Suit No.106/2006 for declaration of right, title, interest and recovery of khas possession of the suit land, measuring 2 katha 12 lecha, out of 1/3rd portion of the total land measuring 1 bigha 2 katha 16 lecha covered by Dag No.874 and Periodic Patta No.394 of Nagaon Town. It is alleged that while the plaintiffs were at Kaki, in connection with some agricultural purposes, the defendants taking the advantage of their absence, had encroached upon the suit land on 01.03.1979, and constructed one house. Being aware of the same, the plaintiffs filed a suit against the defendants, which was decreed ex-parte in favour of the plaintiffs and the possession of the suit land delivered to the plaintiffs in execution of the decree in Title Execution Case No.5/1981, and since then the plaintiffs were in possession of the suit land. On 04.10.1996, the defendants again encroached the land of the plaintiffs and when they raised objection, the defendants assured them to deliver vacant possession of the suit land, but they failed to do the same. Then on 10.08.2003, the defendants denied right, title of the plaintiffs. Hence, the plaintiffs instituted the suit with the prayers, mentioned hereinabove.

On receipt of summons, the defendant Nos.1, 3 and 5 appeared before the Trial Court and submitted their written statement stating that the suit is not maintainable, no cause of action arose and the suit is barred by limitation and adverse possession and bad for non-joinder of necessary parties. Their case was that the predecessor-in-interest of the plaintiffs, in need of money, sold 2 katha of land out of the suit land in favour of the predecessor-in-interest of the main defendant Nos.1 and 3, namely, Phuleswari Kaibartani on 02.03.1954, at consideration of Rs.200/-, by a registered sale deed and delivered possession and since then she is in possession of the suit land and after her death, the suit land devolved on the present main defendant Nos.1, 2 and 3 and the plaintiffs were never in possession of the suit land. It is also stated that the main defendant No.2 had sold 13 lechas of land from the 2 katha of land in favour of the main defendant No.5 and in rest 1 katha 7 lecha of land, the defendant Nos.1, 2 and 3 have their possession and the plaintiffs have no right, title and interest over the same. Another stand they have taken in their written statement is that against the order of ex-parte passed in Title Suit No.75/1979, they have preferred an appeal, wherein ex-parte decree was set aside and the suit was remanded back to the Trial Court for a fresh trial and during trial the plaintiffs remained absent and the suit was dismissed for default and therefore, no suit has been filed by the plaintiffs and therefore, no decree in the name of the plaintiffs stands in the instant suit. The said material fact was suppressed by the plaintiffs and therefore, it is contended to dismiss the same.

Upon the aforesaid pleadings, the learned Trial Court had framed following issues:-

1. Whether there is any cause of action for the suit?

2. Whether the suit is maintainable in the present form?

3. Whether the plaintiff has right, t