The principle of res judicata does not apply to subsequent interlocutory applications when the previous application was withdrawn without merit determination, necessitating preservation of property till final suit adjudication.

JUDGMENT :

SASHIKANTA MISHRA, J.

The petitioner is the defendant No.1 in C.S. No. 85 of 2015 pending in the Court of learned Civil Judge (Senior Division), Nimapara. In the present application filed under Article 227 of Constitution of India, he questions the correctness of order dated 30.07.2024 passed by the learned Additional District Judge, Nimapara in FAO No. 36 of 2022 whereby, the order of injunction passed by the trial Court was confirmed.

2. The facts, relevant only to decide the present application are that the aforementioned suit has been filed by the plaintiff-Opposite Party for declaration, partition and permanent injunction. It is claimed that the plaintiff has a positive right over the suit schedule property which stands recorded jointly in his name along with others. One Achyut Pradhan has one eighth share. He died living behind his wife, Suma Bewa and two daughters, Biki Dei and Panchei Dei. The successors of Achyut Pradhan, for their legal necessity, executed a registered sale deed dated 19.07.1982 in respect of their share over schedule ‘A’ and ‘B’ properties in favour of the plaintiff for consideration followed by delivery of possession. Thus, the plaintiff became entitled to one eighth share of Achyut over the schedule properties and has joint possession along with others. The property under ‘A’ schedule, being the ancestral joint homestead and Bagayat land has not been partitioned by metes and bounds. As such, the defendants have no exclusive heritable right to alienate the properties without consent of the plaintiff. The defendant No.1, however obtained registered sale deed dated 25.01.2014 in respect of A and B schedule property from defendant No.2 exceeding his share by practicing fraud. It is therefore, contended that defendant No. 1 has no right, title, interest and possession over the suit land. Defendant Nos. 1 and 2 threatened the plaintiff to interfere with his joint possession and to make illegal construction over the property by evicting the plaintiff on the suit land.

The plaintiff complained before the police but, to no avail. The plaintiff was also requested for partition but defendant No.1 refused and openly threatened to evict the plaintiff and to interfere with his possession. Hence, the suit.

3. The case of defendant No.1 is that the suit is barred for non-joinder of necessary parties i.e., the successors of Achyut. The plaintiff changed his surname Rath to Pradhan. His father’s name is Brahmananda Rath. Taking advantage of the wrong recording in the ROR, the plaintiff has filed the suit by giving a wrong genealogy. The suit property is recorded in the name of Achyut Pradhan. The plaintiff has never been in possession over the suit property nor has any right, title, interest or possession. The suit plots are recorded jointly and the parties have been in amicable possession in separate residence since the time of their ancestors.

4. Pending disposal of the suit, the plaintiff filed an application being I.A. No. 53 of 2015 under Order 39 Rules 1 and 2 with prayer for injunction. Said application was subsequently withdrawn. The plaintiff thereafter moved an application being I.A. 29 of 2022 seeking the following relief:

“It is therefore prayed that the Honourable Court may graciously be pleased to pass an order of Injunction restraining the opposite parties from interfering in the joint possession of petitioner over the schedule ’A’ and ‘B’ properties or from making any illegal construction over which act of kindness, the petitioner shall as in duty bound remain ever pray’”

The defendant No.1 filed his objection (mentioned as rejoinder affidavit) to the I.A. filed by the pla