LAXMI Vs. A SANKAPPA ALWA

JUDGEMENT

(1.) This Civil Revision Petition is against the finding of the court below holding that the suit is barred by res judicata. Plaintiffs are the revision petitioners. The suit is one for partition. On the averments in the pleadings, the defendants wanted the court to raise an additional issue whether the suit is barred by res judicata by reason of the decree in O.S. No. 13/66. The court settled the above issue and allowed that issue to be tried as a preliminary issue. As I said earlier, the finding on this preliminary issue is against the plaintiffs. They are aggrieved. They filed this Civil Revision Petition.

(2.) It is admitted that there was an earlier suit -- O.S. No. 13/66 between the parties. This suit was also for partition of the property involved in the present suit. In this suit (O.S. No. 13/66) a preliminary decree was passed on 3-4-1968. The said judgment was appealed against in A.S. No. 376/68. The appellate decree was passed on 11-11-1971. So, there is a final and concluded decree between the same parties in respect of the suit property. The shares in the suit property due to the plaintiffs have been decided in the earlier suit O.S. 13/66. This composition of facts was urged by the defendants to say that the present suit is barred by res judicata.

(3.) Plaintiffs contended that though the judgment in A.S. No. 376/68 has become final, no final decree has been passed in the case and no final decree can be passed in the earlier suit because of the long lapse of time. In these circumstances, they said that the parties continued to be in joint possession of the property and so there is no bar of res judicata for filing a fresh suit, viz, the present suit. This contention was not accepted by the Trial Court. Further it was pointed out that I.A. No. 271/86 filed on 19-2-1986 in O.S. No. 13/66 for passing a final decree is pending.