BIBI NASEEMA KHANAM Vs. BHAGWAN PRASAD SAH

JUDGEMENT

(1.) THIS revision application has been preferred by the defendant (1st set) in a suit for declaration of title and consequential reliefs against the order of the trial Court dismissing the petitioner's application questioning the jurisdiction of the Court on the ground that the suit in question was barred by res judicata.

(2.) IN order to decide whether the trial Court has committed an error of jurisdiction as contended by the learned Counsel for the petitioner, it would be necessary to bring on record the salient facts of the case. Petitioner Bibi Naseema Khanam, who is defendant 1st set in the present title suit, had. brought Title partition Suit No. 33/1968 before the Subordinate Judge, Munger claiming one sixth share in the suit property. On 19.9.1973 partition suit was decreed ex parte and no appeal was preferred against the decree. Some of the defendants including one Sarju Singh, who had not appeared and contested the suit filed application under Order IX, Rule 13 C.P.C. for setting aside the ex parte decree but the application was dismissed. An appeal against that order was also dismissed.

(3.) IT appears that after the decree was passed the plaintiff in the present suit purchased 10 kathas land pertaining to plot No. 501 of Khata No. 27 of Mouza Murade Tola Khajechak P.O. and P.S. Kharagpur, District Munger which was one of the subject matters of the partition suit referred to above from defendants 14, 15 and 16. The purchasers did not get themselves impleaded in the Execution case. Sarjug Singh continued to be party in the Execution case. Final decree was prepared on 14.12.1984 on the report of the Pleader Commissioner. The remaining defendants including vendors of present plaintiff were allotted their share. It appears that the vendors of the present plaintiff filed an application before the Executing Court on 12.6.1989 i.e. after final decree was given effect that the takhta allotted to the said defendant be allotted to the present plaintiff in view of the fact that they have purchased their share during the pendency of the partition suit.