RADHESHYAM SONI Vs. DEVENDRA KUMAR (DEAD)

JUDGEMENT

(1.) This first appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against judgment/ decree dated 07.09.2016 passed by District Judge, Dhamtari (C.G.) in Civil Suit No. 23A/2016, wherein the said court dismissed the suit filed by the appellants/ plaintiffs for possession of shop shown in the map as ABCD attached with the plaint and for compensation.

(2.) As per the appellants/ plaintiffs, the appellants instituted a suit on 21.10.2003 against the respondents for obtaining vacant possession of the shop as mentioned above and for compensation for illegal possession. The house and adjacent shop is situated at Baniyapara, Dhamtari which belong to ownership and title of plaintiffs Late Madhav Soni and Late Tokhan Lal Soni @ Jhaduram. Jhaduram died in the year 1993 leaving behind legal heirs who inherited his property and were living jointly in the coparcenaries property. On 20.11.1996, the legal heirs executed registered partition-deed. Accordingly, the appellants were allotted the shop in question. In the month of April, 1998, the defendant possessed the suit property forcefully. It is pleaded that mother of the appellants executed a will in favour of the plaintiffs and bequeathed her share. When the appellants told the respondents to leave possession, the respondents instituted a Civil Suit No. 363-A/1998 on 27.04.1998 against the appellants and others seeking relief of declaration and permanent injunction which was partly decreed. Second appeal was preferred by Late Madhav Soni which is pending as Second Appeal No. 441 of 2003 before this Court. The trial court dismissed the suit filed by the appellants on the ground that the suit is hit by principle of res judicata.

(3.) Learned counsel for the appellants submits as under:-