IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.58 of 2006 SULO DEVI & ORS Versus SIYA RAM MANDAL ----------- 13/ 26.08.2008 The order under challenge is dated 5th of December, 2005 passed in M.T.A. No. 10 of 1996 by the learned Additional District Judge-Cum-Fast Track Court-I, Khagaria, whereby and whereunder while setting aside the order passed by Munsif, Khagaria in Title Suit No. 75 of 1991, he has directed the learned Munsif to decide the issues framed therein by treating it a mixed question of law and facts on merit. Heard learned counsel for the appellant and learned counsel for the respondents. Learned Munsif by passing the order dated 02.04.1996 has decided the issue in respect of suit being hit by principles of res judicata as a preliminary issue and dismissed the suit on the ground that a title suit bearing No. 29 of 1966 / 12 of1969 was already fought by Mangal Singh and others on the one hand and Santu Mandal and others on the other hand, and the suit was decided in favour of Mangal Singh. The defendant Santu Mandal and others also preferred appeal which stood dismissed in the first appellate court as also in the second appeal. So, the matter came to rest, so far right, title and interest in respect of suit land decided in Title Suit No. 29/1966 was concerned. As per contention of the appellant here, who were - 2 - respondents in the first appellate court, as also defendants in the court of learned Munsif, both the parties have been claiming their right, title and interest by virtue of being legal representative of Mangal Singh and Santu Mandal. So far, their status of source of acquisition is concerned, there is no dispute, the only dispute as was raised in the court below against the order of the learned Munsif on behalf of the appellants Siya Ram Mandal ( who is respondent here) that identity of the land does not tally with the land of Title Suit No. 29/1966. Siya Ram Mandal was the plaintiff who claims to have derived right, title and interest by virtue of creation of sale deed in the year 1989 from the decedents of Santu Mandal/representatives of Santu Mandal and others. As per their case filed before the Munsif the land in Schedule-I attached with the plaint, bears plot No. 1321/4151 appertaining to Khata No. 335 situated in Mauza Jamalpur in the district of Khagaria. The learned Munsif has framed in all ten issues on the basis of pleadings of the parties. But, taking all issues into consideration, it would simply be revealed that in case description of the land tallies or coincide with the land as claimed on behalf of the appellants here, then, the respondent Siya Ram Mandal is out of picture. Of course, identity of the land is to be established by the appellant Sulo Devi and others by adducing evidence oral and documentary which is admissible under the law and once the onus is discharged in respect of identity of the land, the question of deciding the matter with respect to - 3 - plea of suit being hit by principles of res judicata can be decided. The respondent could also adduce their evidence in respect of their claim that the description of the land for which they filed the suit is not the same which was fought between Mangal Singh on the one hand, and Santu Mandal and others on the other hand. Learned Munsif, Khagaria, is, thus, directed to confine his decision only to the aspect of the applicability of res judicata by calling upon the parties to adduce their evidence both oral and documentary and decide the matter. With aforesaid modification in the impugned order, this appeal is, accordingly, disposed of. The trial court is directed to dispose of the matter by avoiding all sorts of adjournment preferably within six months from the date of communication/production of a copy of this order. He will not allow any party to take advantage of undue adjournment. Sanjeet (Subash Chandra Jha, J.)