The principle of res judicata does not apply where the material issues involved in two suits are different.

D. P. MOHAPATRA, J.

( 1 ) THE plaintiff has filed this revision petition assailing the order dated 13-11-90 of the trial Court dismissing the suit as barred by principle of res judicata.

( 2 ) THE petitioner filed Title Suit No. 9 of 1989 in the Court of the Second Munsif, Cuttack against the opposite parties seeking the reliefs, inter alia, to declare his exclusive right, title and interest to the suit property as occupancy tenant, to confirm his possession over the same, to permanently restrain the defendants not to interfere with his possession over the suit property except exercising their right of way over the eastern portion of the suit plot and to declare that the decree passed in Title Suit No. 83 of 1972 by the Munsif, Second Court, Cuttack and confirmed in Title Appeal No. 27 of 1975 and Second Appeal No. 68 of 1979 is nullity and non est. The suit property as described in Schedule 'a' to the plaint is A. O. 01 decimal of land under Sabik Malik Khata No. 47, Sikim Khata No. 10, Sikim Sabik plot No. 173 corresponding to Hal Stritiban Khata No. 22, Sikim Khata No. 8, Sikim plot No. 188 in village Bagalsahi over which farm house/cowshed of the plaintiff is situated. The gist of the plaintiff's case, as stated in the plaint is as follows : sabik Khata No. 47 stood recorded in the name of Brundaban Ray, father of the defendants, as the occupancy tenant in respect of the said khata. Under the said khata there was a sikim khata No. 10 which contained plot No. 173 with an area of A. O. 01 decimal; the said plot stood recorded in the name of Ankur Ray, father of the plaintiff. Ankur was possessing the C. S. plot No. 173 as a sikim tenant under the owner of the parent khata No. 47. He built a farm house in which he was keeping his cattle and storing agricultural implements and produce from his other lands in village Bagalsahi. As per the Sabik C. S. record the owner of C. S. khata No. 47 had a right of passage over the eastern portion of C. S. plot No. 173. Subject to this right of way, plaintiff's father was the exclusive owner in possession of C. S. sikim plot No. 173 and the farm house standing on it. After his death the plaintiff succeeded to the property and continued to possess the same in the same manner as his father was doing. Neither the defendants' father nor the defendants had raised any objection regarding right, title, interest or possession of the plaintiff and his father to the suit property nor to the recording of the name of Ankur in the C. S. record of rights. In view of the plaintiff's exclusive ownership and possession of the property the said plot was recorded under plot No. 188 with an area of A. O. 01 decimal in sikim Khata No. 8 in the Major Settlement records in the name of the plaintiff to the knowledge of the defendants who by then had succeeded to their father Brundaban Ray in respect of Sabik C. S. Khata No. 47 corresponding to Hal Khata No. 22. Therefore even in the Hal settlement record the plaintiff is recorded as sikim tenant under the defendants with the note that the defendants have a right of way over sikim plot No. 173. To this recording also the defendants never raised any objection. In 1972 a dispute having arisen between the parties regarding the right of way over the plot, the defendants filed Title Suit No. 83 of 1972 in respect of sikim plot No. 188 for a declaration of their exclusive right, title and interest over it and for a further declaration that the present plaintiff has no right, title and interest in the plot and for other consequential reliefs. The suit was decreed in favour of the present defendants, on 3-1-75 when Section 9 (1) of the Orissa Land Reforms Act (O. L. R. Act) was in force. During pendency of the suit the plaintiff had filed an application under the O. L. R. Act for being recognised as an occupancy tenant in respect of Hal Plot No. 188 corresponding to Sabik plot No. 173 before the Tahsildar, Niali wherein the defendants in their written statement admitted