RSA 83/2010 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY The judgment and decree dated 24.3.2009 passed by the learned Civil Judge No.1, Cachar, Silchar in Title Appeal No. 42/2006 reversing the judgment and decree da ted 30.6.2006 passed by the learned Munsiff No.2 in Title Suit No. 33/2001 forms the subject matter of the instant appeal. I have heard Mr N Dhar, learned counsel for the appellants and Ms S Sena pati, learned counsel for the respondents. A second round of litigation was initiated with the institution of the a forementioned suit by the present respondents vis-à-vis a plot of land which for med the subject matter of controversy between the same parties and in Title Suit No. 46/69 (renumbered as Title Suit No. 28/72). Therein the respondents had int er alia prayed for a decree for declaration of their right, title and interest o ver the suit land which eventually culminated with the decree dated 26.2.77 in t heir favour. It is an admitted position that the decree has attained finality an d that in the execution thereof, as witnessed in Title Execution Case No. 9/84, the possession of the suit land was delivered in ejmali to the parties on 21.2.8 5. Thereafter, they were in occupation of their respective portions of the suit land. As the decree in Title Suit No. 46/69 (renumbered as Title Suit No. 28/72 ) would reveal, the suit land measured an area of 1 Bigha 10 Katha 5 Chattak 10 Gondas spread over Dag No. 837, 838, 839 of 2nd R.S. Patta No. 352 as well as Da g No. 851 of 2nd R.S. patta No. 358 with the following boundaries :- East - Plaintiff’s land South - Pond North - Homestead land in Dag No. 828/829 West - Betakhari Canal. With time though the boundaries have undergone marginal changes there is no dispute with regard to the identity thereof. Title Suit No. 33/2001 was instituted by the present respondents allegin g illegal endeavours on the part of the appellants to trespass upon their (respo ndents) portion of the land within the area of 1 Bigha 10 Katha 5 Chattak 10 G ondas in their occupation. A decree for declaration that the appellants/ defenda nts had no right, title and interest over the suit land and for permanent injunc tion restraining them from interfering with the peaceful possession of the respo ndents/ plaintiffs was prayed for. The pleaded case of the appellants/ defendants in short was that as the possessi on of the land measuring 1 Bigha 10 Katha 5 Chattak 10 Gondas had been given in ejmali to the parties, the suit was misconceived. It was sought to be pleaded as well that though on paper ejmali possession of the suit land had been given to the respondents as well, in fact, at no point of time they occupied the same. On the basis of the pleadings of the parties, the learned Trial Court framed the f ollowing issues : 1. Whether there is any cause of action for the suit ? 2. Whether the suit is maintainable in its present form ? 3. Whether the suit is barred by limitation ? 4. Whether the suit is bad for non-joinder of necessary parties ? 5. Whether the defendants have right, title or interest over the suit land ? 6. Whether the plaintiffs are entitled to get any relief/ reliefs as prayed for ? The parties adduced evidence and on the basis thereof, the learned Trial Court dismissed the suit. In the appeal preferred by the respondents/ plaintif fs, the learned lower Appellate Court noticed the litigational background center ing around Title Suit No. 46/69 between the parties involving the same suit lan d and concluded that the issue of right, title and interest of the respondents i n terms of the decree passed therein had attained finality. On a comparison of t he schedules of the plaints in the suit and on the basis of the evidence on reco rd, the learned lower Appellate Court also came to the conclusion that the suit land was identifiable. In this background, it held that the appellants had no ri ght, title and interest over the suit land. Permanent injunction as sought for w as also granted. Being aggrieved, the defendants are in appeal. Mr Dhar has urged that having regard to the issues raised and decided in the earlier suit, not only the plaint in T.S. No. 33/2001 is misconceived being opposed to the letter and spirit of Section 34 of the Specific Relief Act, 1963 , the subsequent suit is barred by the principles of res judicata as well. The l earned counsel has seriously criticized the declaration of the lower Appellate C ourt against the right, title and interest of the appellants contending that the reby it had traversed beyond the pleadings. According to him, as the appellants had been given ejmali possession of the same land by virtue of the decree passed in T.S. No. 46/69, such a direction was impermissible. Ms Senapati, on the other hand, referring to the averments made in the p laint in T.S. 33/2001 as well as the schedule thereto has urged that as the decr ee of permanent injunction was confined to the land in actual possession of the respondents/ plaintiffs out of the total area of 1 Bigha 10 Katha 5 Chattak 10 G ondas, the impugned judgment and order suffers from no legal infirmity. As the i ssue of right, title and interest of the respondents/ plaintiffs has been decide d in T.S. No. 49/69, the learned lower Appellate Court having granted decree of permanent injunction on the assessment of the evidence on record, no interferenc e with the impugned judgment and order is called for. The materials on record and the submissions advanced have been duly cons idered. That the respondents’ claim of right, title and interest in the suit lan d has been set at rest by the decree passed in T.S. No. 49/69 is a matter of rec ord. The parties, to reiterate, do not spar on the identity of the land measurin g 1 Bigha 10 Katha 5 Chattak 10 Gondas. It is the categorical case of the respon dents in the plaint of T.S. No. 33/2001 that their claim for the decree of perma nent injunction is confined to the land in their occupation in terms of the decr ee in T.S. No. 46/69. They have alleged in specific terms that the appellants ha ve illegally and without any authority of law tried to stray into the land in th eir possession which in absence of any right, title and interest in them is impe rmissible, more particularly, in the teeth of the decree in T.S. No. 46/69. Admi ttedly, though the appellants had preferred appeals against decree in T.S. No. 4 6/69, the same remain unaltered. In this view of the matter, they cannot by any means claim any right, title and interest in the land occupied by the respondent s/ plaintiffs which forms the subject matter of T.S. No. 33/2001. The contention advanced on behalf of the appellants that by the decree passed by the lower App ellate Court their right, title and interest, in view of their possession on a p ortion of their land in their occupation out of the area of 1 Bigha 10 Katha 5 C hattak 10 Gondas has been infringed, is wholly unconvincing. The declaration of the learned lower Appellate Court of absence of their right, title and interest in the suit land is relatable to a portion of 1 Bigha 10 Katha 5 Chattak 10 Gond as of land in possession of the respondents/ plaintiffs and does not in any way cast any adverse impact on the plot in occupation of the appellants/ defendants in terms of the decree in T.S. No. 49/69. The learned lower Appellate Court havi ng on the basis of the pleadings and the evidence on record restrained the appel lants/ defendants from interfering with the possession of the respondents/ plain tiffs over the said portion of their land by a decree of permanent injunction, t he decision impugned herein does not in any way call for any interference in the exercise of this Court’s power under Section 100 of the Code of Civil Procedure . The plea of res judicata and the contention based on Section 34 of the Specifi c Relief Act, 1963 is of no avail. The appeal fails and is dismissed. No costs.