GIRDHARI Vs. BARATI

JUDGEMENT

(1.) This miscellaneous appeal has been preferred by the Defendants questioning the legality and propriety of the judgment dated 28.06.2018 passed by the Learned District Judge, Bemetara in Civil Appeal No.19A/2017, whereby the judgment and decree dated 03.07.2017 passed by the Civil Judge, Class-II, Saja, District Bemetara in Civil Suit No. 22- A/2015 has been reversed and the matter has been remanded in exercise of its power enumerated under Order 41 Rule 23 of Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') for its decision afresh in accordance with law.

(2.) Briefly stated the facts of the case are that a suit for declaration of title, partition, separate possession and also for injunction has been instituted by the Plaintiff/Respondent claiming one-third share over the suit property described in Plaint Schedule-'A'. It is alleged in the plaint that the property in question is the ancestral property which was inherited by his father Rewaram Lodhi upon death of his grandfather Ganesh, erstwhile owner of it. It is pleaded further that his mother Bhangeen Bai after obtaining certain properties from father got separated herself from the joint family and after that rest of the property, i.e., the suit land remained in the joint family property. According to further averments made in the plaint, the suit property described in Plaint Schedule 'A' was got partitioned by the Defendants without his knowledge and succeeded to get the revenue papers mutated on 04.03.1998. It is pleaded further by the Plaintiff that when he demanded partition of the suit land in the month of Jan., 2015, it was refused by them, therefore, he has been constrained to institute the suit in the instant nature.

(3.) Upon receiving the summons of the suit, an application seeking rejection of the plaint has been made by the Defendants alleging inter-alia that prior to the institution of the suit, the Plaintiff and his sons had filed a suit, being Civil Suit No. 13-A/2011 claiming declaration of title, injunction, possession and also for damages with respect to the properties bearing Khasra No.941 and 1832 admeasuring 2.61 and 3.50 hectares respectively situated at Village Parasbod, Tahsil Saja, District-Bemetara. The said suit was dismissed by the trial court vide its judgment and decree dated 27.09.2014, therefore, the instant suit as framed is not maintainable and liable to be rejected on the principles of res judicata as provided under Sec. 11 of CPC.