Page No.# 1/9 GAHC010055432024 2026:GAU-AS:1358 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/135/2024 DAIBAKI KUMARI DEVI AND ANR WIFE OF LATE UMA KANTA SARMA, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, SRI KAMALA KANTA SARMA. 2: KAMALA KANTA SARMA SON OF LATE UMA KANTA SARMA BOTH ARE RESIDENTS OF NAKHOLAGAON UPARKUCHI NEAR PWD INSPECTION BUNGLOW JAGIROAD P.O.- JAGIROAD MOUZA- GOVA P.S.- JAGIROAD DISTRICT- MORIGAON ASSAM PIN- 782410 VERSUS SUBARNA SARMA AND 3 ORS. WIFE OF LATE CHANDI CHARAN SARMA, RESIDENT OF JAGIROAD TOWN, MORIGAON ROAD, P.O. AND P.S.- JAGIROAD, MOUZA- GOVA, DISTRICT- MORIGAON, ASSAM, PIN- 782410. 2:MUNINDRA SARMA SON OF LATE CHANDI CHARAN SARMA Page No.# 2/9 RESIDENT OF JAGIROAD TOWN MORIGAON ROAD P.O. AND P.S.- JAGIROAD MOUZA- GOVA DISTRICT- MORIGAON ASSAM PIN- 782410. 3:MINU SARMA DAUGHTER OF LATE CHANDI CHARAN SARMA RESIDENT OF JAGIROAD TOWN MORIGAON ROAD P.O. AND P.S.- JAGIROAD MOUZA- GOVA DISTRICT- MORIGAON ASSAM PIN- 782410. 4:BIMAL KR. SARMA SON OF LATE UMA KANTA SARMA RESIDENT OF JAGIROAD TOWN P.O.- JAGIROAD P.S.- JAGIROAD MOUZA- GOVA DISTRICT- MORIGAON ASSAM PIN- 782410 Advocate for the Petitioner : S ALI, MS. M NATH,MR. R BARUAH,MR. A IKBAL Advocate for the Respondent : , BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA Page No.# 3/9 ORDER Date : 03-02-2026 Heard Mr. A. Ikbal, the learned counsel for the petitioners. No one appears for the respondents in spite of service of notice. Accordingly, an order was passed to that effect on 17.12.2025 to proceed the case ex-parte. 2. This is an application under Article 227 of the Constitution of India read with Section 151 CPC challenging the order dated 29.01.2024 passed by the learned Civil Judge (Jr. Div.) No. 2, Morigaon in Misc.(J) Case No. 141/2022 passed in Title Suit No. 46/2022 denying to frame preliminary issues. 3. Mr. Ikbal, the learned counsel for the petitioner narrated the brief history of the case wherefrom it is seen that initially the present petitioner had instituted a Title Suit No. 11/2004 which was re-numbered as 39/2006 seeking right, title and interest and confirmation of possession over 1 Katha of land out of the purchased land of 1 Katha 10 Lessas and it is stated that a plot of land was given to the Proforma defendant Chandi Charan Sharma, who was residing in the said plot of land as permissive possessor. However, he did not make any claim for the said plot of land. But, during the pendency of the suit the said Proforma Defendant No. 3 i.e. Chandi Charan Sharma filed his written statement along with the counter claim praying for declaration of right, tile and interest of 15 Lessas of land. However, after hearing the parties and considering the argument forwarded by both the parties, the suit is decreed in favour of the present petitioner/plaintiff and accordingly decree of right, title and interest and confirmation of possession of the land was declared in favour of the present petitioner for schedule ‘Ka’ land and decree for recovery of khas possession was also given in favour of the petitioner/plaintiff over the disputed 8 Lessas of ‘Kha’ Page No.# 4/9 scheduled land. In the same time the counter claim of the defendant no. 3/proforma respondent was also allowed and accordingly his right, title and interest over the scheduled II land and decree of confirmation of possession was declared in favour of the proforma respondent. However, the proforma respondent has claimed 15 Lessas of land claiming that he purchased the land along with the husband of the present plaintiff/petitioner. Thereafter aggrieved to the said judgment & order dated 27.11.2009 the defendant preferred a Title Appeal which was also dismissed and subsequently they have preferred the Second Appeal which was also dismissed. But, at the time of pendency of the title execution filed by the present petitioner, the legal heirs of the proforma respondent Chandi Charan Sharma had filed Title Suit No. 46/2022 wherein they made the similar prayer which they earlier made at the time of filing the counter claim by their predecessor-in-interest i.e. Proforma Respondent No. 3 Chandi Charan Sharma. 4. After receipt of the notice of the said Title Suit No. 26/2022, the present petitioner has filed his written statement and along with the said written statement they have also filed petition under Order XIV Rule 2(2) of CPC for framing some preliminary issues. It is stated in the said petition that there is no cause of action for the suit filed by the respondents and in the same time it is also barred by res judicata under Section 11 of the CPC. Accordingly, it was suggested to frame the following preliminary issues:- “(i) Whether the present suit is barred by the Principles of Res-judicata as contemplated under Section 11 of the CPC? (ii) Whether the plaint of the present suit is liable to be rejected under Rule 11(a) and (d) of Order VII of the CPC? Page No.# 5/9 (iii) Whether the suit is barred under the provisions of Section 12 of the CPC?” 5. After hearing both the parties the learned Civil Judge (Jr. Div.) No. 2, Morigaon had passed the order in Misc.(J) No. 141/2022 in connection with Title Suit No. 46/2022 dated 29.01.2024 have rejected the prayer for framing of preliminary issues with the observation that as per Order XIV Rule 2(2) CPC preliminary issue can be framed on the point of jurisdiction and/or if the suit is barred by any law, time being in force. It is observed that after the amendment of 1976, the scope of the preliminary issue is limited only two areas i.e. the point of jurisdiction and if it is barred by any law, time being in force. Further it is observed that the petition which was filed by the present petitioner, basically raised the issue that the suit is barred u/s 11/12 and Order VII Rule 11(a)(b) CPC. It is further observed by the learned Trial Court below that even if the Court frame any preliminary issue, the Court is duty bound to pronounce the judgment in all the issues and it is the discretionary on the part of the Court to decide the issue of law as a preliminary issue or to decide it along with the other issues. With these observations the prayer for framing of preliminary issue filed by the present petitioner under Order 14 Rule 2(2) of CPC was dismissed by the learned Trial Court below. 6. It is further submitted by Mr. Ikbal that from the entire facts of the case it is clear that the subsequent title suit filed by the legal heirs of the proforma respondent Chandi Charan Sharma after his death is on the same issue and for the same cause of action wherein also the claim for their right, title and interest over the same land and thus the subject matter of the suit is also similar which is already decided and determined by the learned Court below as well as the learned Appellate Court and the Hon’ble High Court by disposing the second Page No.# 6/9 appeal. 7. Mr. Ikbal further submitted that the learned Trial Court below erroneously arrived at a finding that if the preliminary issue is framed then the same would prolong the matter and would also unnecessarily multiply the consequence. On the contrary, if the preliminary issue is framed then the same would expedite the matter and lead to early disposal of the matter which in term would save valuable judicial time of the Court. But, the learned Trial Court below had failed to consider this aspect of the case and dismissed the petition only considering the fact that the preliminary issue can only be framed/raised on the point of jurisdiction and if the suit is barred by any law, time being in force. 8. Mr. Ikbal accordingly submitted that the impugned order dated 29.01.2024 passed by the learned Civil Judge (Jr. Div.) No. 2, Morigaon may be set aside and quashed and the matter may be remanded back to the learned Trial Court below to dispose of the petition by framing preliminary issue as deemed fit and proper. 9. To substantiate his submission Mr. Ikbal also relied on the following two judgments:- i. MANU/SC/0210/2018 [Andanur Kalamma and Ors. Vs. Gangamma (dead) by L.Rs]. ii. MANU/GH/0020/2023 [Tanveer Rahman, deceased and Ors. Vs. The Assam Board of Wakf] 10. He emphasized in para 28 of the judgment of the Hon’ble Apex Court which reads as under:- “15. ‘Res judicata’ literally means a “thing adjudicated” or “an issue that has been definitively Page No.# 7/9 settled by judicial decision”.[1] The principle operates as a bar to try the same issue once over. It aims to prevent multiplicity of proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies and was decided and has become final, so that the parties are not vexed twice over; vexatious litigation is put an end to and valuable time of the court is saved. (See Sulochanna Amma v. Narayanan Nair[2]) 16. In Jaswant Singh v. Custodian of Evacuee Property[3], this Court has laid down a test for determining whether a subsequent suit is barred by res judicata: “…In order that a defence of res judicata may succeed it is necessary to show that not only the cause of action was the same but also that the plaintiff had an opportunity of getting the relief which he is now seeking in the former proceedings. The test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings….” 17. The expression ‘cause of action’ came to be interpreted by this Court in Kunjan Nair Sivaraman Nair v. Narayanan Nair[4], at paragraph-16. To quote: “16. The expression “cause of action” has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in “cause of action”. 18. In Halsbury’s Laws of England(4th Edition), the expression has been defined as follows: ‘Cause of action’ has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. ‘Cause of action’ has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject- matter of grievance founding the action, not merely the technical cause of action.” 11. After hearing the submission made the learned counsel for the petitioner, I have also perused the case record and the impugned order passed by the learned Trial Court below. It is seen that the petitioner had filed application Page No.# 8/9 under Order XIV Rule 2(2) CPC praying for framing of preliminary issue basically raising the point that suit is barred by law on res judicata stating that the subject matter of the suit and issues involved in the previously instituted Title Suit No. 39/2006 is same and in between the same parties and for which the subsequent suit filed by the respondent is not maintainable. However, it is an admitted position that the learned Trial Court below has territorial jurisdiction to try the suit and in the same time it is also not barred by any other law, time being in force. But, as the preliminary issue is raised by the petitioner side wherein the point of res judicata has been raised by the petitioner side, the learned Trial Court below ought to have been framed the preliminary issue on the point raised by the petitioner as there may not be any point for further proceeding of the case if the suit itself is barred under the law of res judicata. However, the learned Trial Court below had rightly observed that even after the framing of the preliminary issue the Court is to make discussion and decision on the other issues but if the suit can be decided at the preliminary issue that will rather save valuable time of the Court and the case may be decided accordingly. Thus only considering the fact that the Court has to make discussion in all the issues, the petition filed by the petitioner under Order XIV Rule 2(2) cannot be rejected wherein not only the issue of res judicata is raised but it is also raised that the plaint is also not maintainable under Order VII Rule 11(a)(b) CPC. 12. Accordingly, this Court is of the opinion that interference of this Court is necessary and accordingly the order passed by the learned Trial Court below rejecting the prayer of petitioner is hereby set aside and quashed. The learned Trial Court below may frame the ‘Preliminary Issues” if found necessary giving opportunity of hearing to both the parties. 13. With the above observations, the present civil revision petition is disposed Page No.# 9/9 of accordingly. JUDGE Comparing Assistant