A foreign judgment passed ex parte and without any trial on evidence is not a judgment on the merits and is not conclusive of the point decided therein.

Judgement

PANIGRAHI, C. J :- The litigation giving rise to this appeal has had a chequered career. The plaintiffs own 16.67 acres of land recorded in Khata No. 32 of Mouza Santhasara within the State of Dhenkanal. These lands were being enjoyed in four separate shares plaintiffs 1, 2 and 3 having one share each and the father of plaintiffs 4 and 5 being the other cosharer.

Sometime prior to 1930 plaintiff 1 leased out a small portion of the holding, measuring 1.23 acres, for cultivation on Bhag. The Tahsildar of the State recommended the resumption of the entire holding on the ground that the executant had mortgaged the lands without the authority of the State, and on 26-1-1931 the Ruler of Dhenkanal ordered1 resumption of the entire holding. Thereafter the lands were re-settled, on 21-9-1932, with the present defendant 2 and the father of the present defendants 3, 4 and 5.

By an order of the Ruler, dated 21-11-1932 their names were mutated and pattas were granted in due course. But the plaintiffs did not surrender possession to the new tenants. They averred that they were still in possession of the homestead lands recorded in the aforesaid Khata though the defendants had taken forcible possession of the cultivated lands in January 1937. The plaintiffs complained to the Chief Minister of the State who by an order dated 7-12-1944, directed them to file a suit in the Civil Court and establish their title to the suit lands.

The present suit was accordingly filed on 23-5-1945 for a declaration that the plaintiffs are entitled to recover possession of the holding and that the resumption and re-settlement of the lands by the Ruler are illegal and void, and that the defendants had acquired no right in them. They pray that they may be put in possession of the lands and that the defendants be evicted as they are mere trespassers.

2. The suit was hotly contested by the defendants who raised a number of pleas regarding the maintainability of the suit and averred that the Civil Court had no jurisdiction to entertain it. The two issues that were material for the disposal of the suit were : (1) whether the suit is barred by limitation under Art. 14, Limitation Act, and (2) whether it is barred by res judicata on account of a prior decision in favour of the defendants by the District Court of the Ex-State of Dhenkanal in O. S. No. 38 of 1938-39.

3. The learned Munsif, on a close examination of the resumption proceedings held that the resumption as well as the subsequent resettlement were altogether illegal and void. On the question of limitation he held that the suit being one for possession was governed by Art. 142, Limitation Act and that Art. 14 had no application to the facts of the case. But he held that the suit was barred by res judicata, by reason of the prior decision of the District-Judge, Dhenkanal in O. S. No. 38 of 1938-39. He accordingly directed the dismissal of the suit.

The plaintiffs appealed hi Munsif Appeal No. 110/22 of 1949, which was disposed of by the Subordinate Judge of Dhenkanal on 31-10-1949. The-appellate Judge observes chat the only point argued before him was with regard to the question of res judicata and that the other findings of the. Munsif were not challenged by the appellants, before him. He held that the prior suit had been instituted only against three of the present plaintiffs, namely plaintiffs 1 to 3, and that the present plaintiffs 4 and 5 were not represented in the suit.

In that view of the matter he set aside the judgment of the Munsif and remanded the suit for further trial and disposal in accordance with, the directions given by him. The learned Judge observes in his order of remand. "Therefore I have no alternative but to remand the suit to the learned trial Court for fresh trial on the question of res judicata". In his opinion, Art. 14, Limitation Act did not apply as it was a title suit in which the plaintiffs based their title on the allegation, or dispossession by the defendants.

4. The learned Mun