MAHESHWARI PRASAD Vs. SHIV SHANKAR PRASAD

JUDGEMENT

(1.) This is a second appeal by the defendants arising out of a suit instituted by the plaintiffs for partition of certain properties, namely, a house and five bighas of land appertaining thereto bearing municipal holding Nos. 1 and 2 within ward No. 9 of the Bhagalpur Municipality.

(2.) The court has framed the following question of law under the provisions of Section 100 (4) (as amended) of the Civil P. G. "Whether plea of res judicata could have been allowed to be raised when the same was not raised anywhere in the pleadings nor any issue was framed on res judicata."

(3.) In order to appreciate the question of law, I would state the relevant facts. Admittedly one Kali Prasad was the common ancestor of the plaintiffs and the defendants. The plaintiffs have claimed half share in the suit property. This claim was resisted by the appellants on the plea that there had been already a partition long before in the year 1940 and thereafter the father of plaintiff No. 1, namely, Anand Prasad, relinquished his interest in the property that he got on the said partition, for a consideration of Rs. 90/- and as such, the plaintiffs had no right to claim partition of the suit property. Both the courts below have negatived the plea of the defendants and held that the parties still constituted to be a joint Hindu family there being no previous partition. Accordingly, the plaintiffs were held to be entitled to a half share in the suit property.