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When subsequent suit for partition is barred by res judicata?


(Before Ranjan Gogoi and Mohan M. Shantanagoudar, JJ.)

S. Saranjeet Singh & Ors. .
S. Jaskirat Singh & Ors.

Civil Appeal No. 4818 of 2017
Decided on April 3, 2017
Citation:AIR 2017 SC 3440

2. The suit filed by respondents, as plaintiffs, for partition and injunction against dispossession was dismissed by the learned trial Court on the ground that the suit was barred on the principle of res judicata. In first appeal the decree of dismissal has been reversed and the matter remitted to the learned trial Court for a decision on merit.

3. The reversal made by the learned first appellate Court is based upon a finding that though there was a previous suit for possession against the father of the plaintiffs (Harmeet) by his own father (S. Dalip Singh) (grand-father of the plaintiffs and father of the appellants) wherein the father of the appellants (S. Dalip Singh) had claimed the suit property to be his own and the said defence of the father of the plaintiffs was negatived, the decree in the aforesaid suit would not operate as a res judicata inasmuch as the parties had not been litigating under the same title. Moreover, there was another suit filed by the father of respondents plaintiffs for partition of the same property which was dismissed. The same view was taken by the High Court with regard to the said suit. Furthermore, the learned first appellate Court, though no evidence was available on the aforesaid score, came to the finding that the common ancestor of the parties had died in Pakistan in the year 1944 and that the property in the land is ancestral.

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4. The aforesaid finding had been arrived at without there being any evidence on record. In view of the earlier decree passed in the suit(s) referred to above we do not see how the present suit filed by the respondents plaintiffs can be held to be maintainable. It was, according to us, clearly barred on the principle of res judicata and the learned first appellate court had seriously erred in reversing the decree of dismissal passed by the learned trial Court.

5. Consequently and in the light of the above we allow this appeal; set aside the order of the High Court and restore the decree of dismissal passed by the learned trial Court.

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