The principle of res judicata does not apply when different issues are raised in separate appeals stemming from the same judgment, warranting a fresh hearing.

JUDGMENT :

SASHIKANTA MISHRA, J.

This is an appeal by some of the defendants against the confirming judgment passed by learned Ad-hoc Additional District Judge, Sundargarh on 04.03.2011 followed by decree in RFA No.43/34 of 2005-07 whereby the judgment dated 23.04.2005 followed by decree passed by learned Civil Judge (Senior Division), Sundargarh in C.S. No. 80 of 2002 was confirmed.

2. For convenience, the parties have been referred to as per their respective status before the trial Court.

3. Facts of the case, briefly stated, are that the present respondents/plaintiffs filed the aforementioned suit for declaration that the sale deeds and Will executed by one Chandrabati Majhi in favour of defendants Nos.2, 3, 4, 5 and 1 in respect of the properties described in Schedule ‘B’, ‘C’, ‘D’, ‘E’, & ‘F’ respectively are void and for recovery of possession. The suit was decreed in part by declaring the sale deeds in respect of Schedule ‘B’, ‘D’, and ‘F’ properties as well as the Will executed by Chandrabati as void. The suit was dismissed in respect of the other properties.

4. Being aggrieved, defendant Nos.1 (a), 1(c) and 4 preferred RFA Nos.43/34 of 2005-07. Be it noted that the plaintiffs also preferred an appeal against the same judgment and decree being RFA No.42/78 of 2005. Said appeal was dismissed by the 1st Appellate Court by judgment passed on 28.11.2005 by confirming the judgment and decree of the trial Court. In so far as the appeal preferred by the defendant Nos.1(a), 1(c) and 4 being RFA Nos.43/34 of 2005-07 is concerned, the 1^st Appellate Court observed that the other appeal being RFA No.42/78 of 2005 had arisen out of the self-same judgment and decree of the trial Court and decided on contest vide judgement dated 28.11.2005. As such, the matter in controversy between the parties has already reached its finality by said judgment of the Appellate Court and therefore, re-agitation of the self-same matter will encourage multiplicity of proceeding, which is prohibited in law. Referring to some decisions rendered on the issue of res-judicata, the 1^st Appellate Court dismissed the appeal by the impugned judgment.

5. Being thus aggrieved, the aforementioned defendants have preferred the instant second appeal, which has been admitted on the following substantial questions of law:-

“i. Whether the learned appellate court has committed an error in holding that the appeal preferred by the defendant No. 3, i.e., RFA No. 43/34 of 2005-07 was hit by the principles of res judicata since another appeal filed against the same judgment of the learned trial court by the plaintiff, being, RFA No. 42/78 of 2005-07 was already decided confirming the judgment and decree of the learned trial court?

ii. Whether the learned lower appellate court by holding as above, h as misdirected itself in not considering that the suit of the plaintiff was decreed in respect of three of the schedule properties and not wholly and the plaintiff filed RFA No. 42/78 of 2005-07 claiming for a full decree of the suit, but the legal heirs of defendant No.3 as appellants in RFA No. 43/34 of 2005-07 challenged the finding of the learned trial court with regard to the finding the Will executed in favour of the father of the original defendant No.2 was invalid?”

6. Heard Mr. P.K. Satapathy, learned counsel for the defendant-appellants, Mr. A.N. Nanda, learned counsel for the plaintiff-respondent Nos.1 and 2 and Mr. A.P. Bose learned counsel appearing for the other defendants.

7. Mr. Satapathy assails the impugned judgment passed