[45 DLR (HCD) (1993) 405] [ Shomsher Ali & others vs. Govt. of the People’s Republic of Bangladesh. (Represented by Deputy Commissioner of Mymensingh) ]

Suit Title: Shomsher Ali & others vs. Govt. of the People’s Republic of Bangladesh. (Represented by Deputy Commissioner of Mymensingh) [45 DLR (HCD) (1993) 405]

Judge: Syed Fazle Ahmed.

Date of Judgment: 23^rd June 1992.

Suit type: Civil Revisional Jurisdiction of High Court Division.

Under Section: 11 of the Code of Civil Procedure, 1908

Res Judicata: No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.-The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

 
Explanation II.-For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

 
Explanation IV.-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

 
Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

 
Explanation VI.-Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Short description of the suit: Plaintiff petitioners instituted OC suit No 214 of 1983 in the court of munsif, Fulbaria on the allegation that the suit property belonged to late kishorimohan Sarker who died leaving behind three sons, karunamoy, kiranmoy and kantimoy Sarker and a widow Nikharbala Sarker and by amicable settlement among the heirs Karunamoy and Kantimoy got the suit and exclusively in their saham and they sold it to petitioner on 16.11.63 on consideration of  Tk 500.00 and on acceptance of the full consideration money delivered possession of the suit property to the petitioner but there was legal difficulties of getting permission of sale of the property for minority community and as a result sale deed could not be registered but petitioner started living in the disputed homestead with his wife and sons therein on the open declaration and assertion to their own right and title and thereby have acquired title in the suit land by adverse possession, subsequently, opposite parties without the knowledge of the  petitioner migrated to India and on coming to know about the migration, petitioner filed OC suit No 214 of 1983 for declaration of title of the suit property.

Principle of the suit: - Principle of res judicata is intended not only to prevent a new decision but also to prevent a new investigation so that the same person cannot be harassed again and again in various proceedings upon the same question.

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