Page No.# 1/10 GAHC040007912023 2026:GAU-AP:742 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP/26/2023 Kadum Apang S/o Rokom Apang, R/o Ramsing Village, PO/PS Jengging, Upper Siang District, Arunachal Pradesh. VERSUS Momang Apang D/o Tani Apang, R/o Ramsing Village, PO/PS Jengging, Upper Siang District, Arunachal Pradesh. Advocate for the Petitioner : Nalo Pada, Tanur Gao,Adam Tatak,Tsering Gyatso,Amy Talom,Tonni Gammi Advocate for the Respondent : Ninnong Ratan, Pura Khongkhung,Orin Modi -BEFORE- HON’BLE MR. JUSTICE PRANJAL DAS Advocate for the petitioner : Mr. Nalo Pada, Adv. Advocate for the respondent : Mr. O. Modi, Adv. Date on which judgment is reserved : 27.07.2026 Date of pronouncement of judgment : 07.08.2026 Whether the pronouncement is of the operative part of the judgment ? : N/A Page No.# 2/10 Whether the full judgment has been pronounced? : Yes JUDGMENT & ORDER (CAV) Heard Mr. N. Pada, learned counsel for the petitioner and Mr. O. Modi, learned counsel for the respondent. 2. The instant revision has been preferred by the petitioner namely, Kadum Apang, under section 115 CPC, 1908, assailing the judgment and order dated 17-03-2023 passed by the Court of the learned Civil Judge (Junior Division), Yingkiong, Arunachal Pradesh in Title Suit No. 01/2021, whereby the preliminary objection to the suit by the petitioner as defendant No. 1 was rejected and it was held that the suit is not hit by the doctrine of res judicata and that it can proceed. 3. The facts in brief are that the respondent herein, namely Momang Apang, instituted the title suit registered as Title Suit No. 1 of 2021, for declaration of title and rights of Resing Arik area at Ramsing village and consequential relief of permanent injunction against the petitioner. In the suit, the petitioner was arrayed as defendant No. 1, along with other defendants and on being authorized by the other defendants, he filed a joint written statement on various grounds including preliminary objections. The petitioner as defendant No. 1 raised a preliminary objection on the ground that the subject matter of the dispute pertaining to the property was already decided by the Kebang on 14-03-2021, in favor of the petitioner and therefore, the subsequent suit instituted by the Page No.# 3/10 respondent as plaintiff is barred by the doctrine of res judicata. 4. However, the learned Trial Court was not impressed by the contentions of the petitioner and it held by the impugned order dated 17-03-2023 that the earlier decision was not by a competent forum and therefore, one of the essential ingredients of the doctrine of res judicata being missing, the present suit was not barred by the said doctrine and decided to proceed with the suit. 5. It may be mentioned here that initially by the order dated 19- 06-2023, this Court was pleased to direct stay of the suit proceedings; however, by subsequent order dated 12-07-2023, after hearing the parties, was pleased to vacate the said interim order. Pursuant thereof, the suit has proceeded, witnesses have been examined and final hearing was stated to have been fixed on 28-07- 2026. 6. This Court while reserving the judgment on 27-07-2026 observed that the learned Trial court may proceed with the arguments, but judgment shall not be pronounced until disposal of the instant revision petition. 7. The sole respondent has filed affidavit-in-opposition to the revision petition and the petitioner has also filed an affidavit-in-reply to the affidavit-in-opposition of the respondent. The petitioner also filed an additional affidavit in the revision bringing on record certain documents. 8. The primary contentions of the petitioner are that the revision petition is maintainable and that the impugned order dated 17-03- 2023 is not an interlocutory order and that it satisfies the ingredients Page No.# 4/10 of proviso to sub section 1 of section 115 CPC. Another contention of the petitioner is that the village authority by way of Kebang, which had passed the order dated 14-03-2021 was a competent forum to do so and that the Kebang decision was passed in compliance with the provisions of law mandated under section 5 and section 44 of the Assam Frontier Regulation, 1945 (hereinafter AFR). It is contended that Alo Pangkam, Gaon bura and signatory No. 17 of the Kebang decision dated 14-03-2021 was the lone Gaon bura of Ramsing village, and he was duly appointed by the Deputy Commissioner, Upper Siang district, Yingkiong. It is also contended that in terms of the stipulations, the Kebang proceeding dated 14- 03-2021 was conducted in open darbar in the community hall of Ramsing village. It is contended by the petitioner that the respondent was aware of the Kebang proceedings and he even requested to postpone it to 21-03-2021. 9. The petitioner also contends that the provisions of AFR or Arunachal Pradesh Civil Courts Act does not stipulate as to how many Gaon Buras should be present in the Kebang proceeding and as to whether Gaon Buras should stamp their seal after they sign on such Kebang decision. 10. The contentions of the respondent side that have emerged from their affidavit-in-opposition is that the civil revision is barred by the proviso to sub section 1 of section 115 CPC and that the impugned order dated 17-03-2023, being an interlocutory order, civil revision would not lie against it. Another contention of the respondent is that the plaint cannot be rejected on the plea of res Page No.# 5/10 judicata. The most important contention of the respondent is that the Kebang decision is not by a competent authority and therefore, the principle of res judicata contended by the petitioner as defendant in the suit would not hold. 11. Mr. N. Pada, the learned counsel for the petitioner submits that the order dated 14-03-2021 passed by the Kebang was valid and legal order and it fulfilled the requirements of section 44 of the AFR. He further submits that at the time of filing of the proceeding, the provisions of the Arunachal Pradesh Civil Courts Act had not come into being. It is submitted that the impugned order dated 17-03- 2023, amounts to deciding the title suit on merits. He contends that the civil revision is maintainable in terms of the proviso to sub section 1 of section 115 CPC. It is submitted that the Kebang vide order dated 14-03-2021 had validly decided the title of the property in favour of the petitioner. 12. In support of his contentions, the learned counsel for the petitioner cites the following decisions:- (i)K. D. Sharma Vs. Steel Authority of India Ltd and Ors, Civil Appeal No. 4270 of 2008; (ii) Pawan Kumar Gupta Vs. Rochiram Nagdeo reported in 1994 (4) SCC 243; (iii) Sitaram @ Mahendra Ghosh and Ors Vs. Sri Antaryami Mohapatra and 18 Ors reported in 2003 (II) OLR 409. 13. On the other hand, Mr. O. Modi, the learned counsel for the sole respondent submits that the Kebang decision dated 14-03-2021 is not by a valid forum and therefore, the principle of res judicata Page No.# 6/10 would not apply. It is submitted that in terms of section 5 of the AFR, village authority should be appointed by the Deputy Commissioner. It is submitted by the respondent counsel that the order dated 14-03-2021 declaring title in favour of the petitioner having being passed by an incompetent forum would not act as res judicata and therefore, the suit is maintainable and rightly it was allowed to proceed and is on the verge of completion. 14. In support of his contentions, the learned counsel for the respondent cites the following decisions:- (i) Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & Ors reported in 2021 AIR (SC) 3802; (ii) Tek Singh Vs. Shashi Verma and Anr reported in 2019 Supreme (SC) 320. 15. I have perused the revision petition, the additional affidavit, the affidavit-in-opposition and the affidavit-in-reply. I have considered the submissions of the learned counsels on both the sides and perused the relevant documents annexed. I have also perused the decisions cited at the Bar. 16. As already mentioned above in para 3, the petitioner as defendant No. 1, raised a preliminary objection that the suit preferred by the respondent plaintiff was barred by the doctrine of res judicata ; however, the learned Trial court did not agree with the same and dismissed the said plea. If the said plea that the suit was barred by res judicata was accepted by the learned Trial court in favour of the petitioner as defendant No. 1, then, the suit would have come to an end. In other words, the proceedings would have Page No.# 7/10 ended. Therefore, the aforesaid situation fulfils the criteria laid down in proviso to section 115 (1) of the Civil Procedure Code, 1908, regarding maintainability of a civil revision under section 115 (1) CPC, 1908. The aforementioned section 115 (1) along with the proviso may be reproduced herein below: “115. Revision.— [(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears— (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: [Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.] (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.]” 17. In the aforesaid facts and circumstances, I am of the view that the revision against the impugned order would be maintainable under section 115 Code of Civil Procedure, 1908. 18. It is well settled that the issue of res judicata cannot be a ground for rejection of plaint under Order 7 Rule 11 CPC as determination of the doctrine involves looking beyond the pleadings of the plaintiff and would not be permissible under Order 7 Rule 11 CPC. 19. In this context, reference can be made to the case of Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & Ors reported Page No.# 8/10 in 2021 Supreme (SC) 432 and the relevant paragraph 25.4, is reproduced herein below: “25.4. Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the “previous suit”, such a plea will be beyond the scope of Order 7 Rule 11(d), where only the statements in the plaint will have to be perused.” 20. The decision in Tek Singh (supra) relied upon by the respondent side would not come to the aid of the respondent side. 21. Upon perusing the impugned order dated 17-03-2023, passed by the learned Court below, it appears that question of res judicata has been framed and answered as a preliminary issue.The court on the basis of the materials and submissions held that the earlier court was not a competent court to decide the matter at hand and therefore, the principle of res judicata would not apply. It is well settled that a mixed question of law and fact cannot be framed as a preliminary issue and that, only a question of law can be so framed as a preliminary issue. 22. In the instant case, the question of res judicata could not have been framed as a preliminary issue in any case, as it involved looking into some disputed facts as well regarding the competency of the customary court which had passed the earlier order. 23. From perusal of the materials and the submissions made by the learned counsels on both the sides, it is clear that one of the important questions which would determine whether the doctrine of res judicata would apply - is whether the former forum i.e, the Customary court was competent vis-a-vis the subsequent litigation. The Learned Trial Court merely held on perusing the materials before Page No.# 9/10 commencement of trial that res judicata would not apply as the former forum was not a competent court. 24. However, it has transpired from the materials and submissions that the competency or otherwise of the previous forum was a disputed question and therefore, the said question can be determined only by framing it as an issue in the trial, allowing the parties to adduce evidence on the same and adjudicate the issue on the basis of such evidence and materials. 25. Therefore, the impugned order dated 17-03-2023 is interfered with, to the extent that the learned Trial Court shall frame a specific issue regarding applicability of the doctrine of res judicata and enable the plaintiff and the defendants to lead evidence upon the same. Upon undertaking that exercise, the said issue of applicability or otherwise of the doctrine of res judicata to the suit will be decided as part of the adjudication of the title suit as a whole. 26. It has been submitted by the learned counsels at the Bar that evidence is completed and the case was posted for final hearing on 28-07-2026. And in that context, while reserving the instant revision for judgment vide order dated 27-07-2026, it was observed that while the learned Trial Court can proceed with the arguments, but the judgment shall not be pronounced, until the disposal of the instant revision petition. 27. In view of the direction vide this judgment, regarding framing of the additional issue and adjudication, the learned Trial Court may now proceed with the trial and bring it to conclusion, after undertaking the aforesaid exercise, as directed. Page No.# 10/10 28. The civil revision stands disposed of on the aforesaid terms. 29. Return back the case records received from the learned Trial Court. JUDGE Comparing Assistant