KRISHNA KUMAR KANTH Vs. INDULAL DEVI

JUDGEMENT

(1.) THE above mentioned revision petition and the first appeal have arisen out of the same order passed by 5th Sub -Judge, Samastipur, dated 5.9.1997 in Partition Suit no. 49 of 1975 whereby and whereunder the learned Sub -Judge has dismissed the suit on the preliminary ground that the suit is barred by the principles of res judicata because of the compromise decree passed earlier between the co -sharers in Partition Suit no. 227 of 1951.

(2.) THERE is a chequered history of the case. One Bhagwat Prasad Kanth was the original title holder. He had four sons, namely Jaideo Pd. Kanth, Baldeo Narayan Kanth, Parmeshwar Dayal Kanth and Ram Saran Pd. Kanth. The joint property consisted of several lands and houses spreading over different districts including that of the town of Samastipur. This present suit i.e. Partition Suit no. 49 of 1975 was filed by one of the sons of Ram Saran Kanth claiming his share over the whole of the suit property which was held jointly by the joint family. Some minor defendants were also there in the suit when all the heirs of the joint family property had been added as defendants in the suit. The suit was contested by some of the defendants and for and on behalf of the minor defendants guardian ad litem appointed by the court had also filed written statement and the suit was decreed on contest against the contesting minor defendants and ex parte against the rest. On the basis of the preliminary decree passed while the process of preparation of final decree was going on, some petitions were filed amongst whom some of the defendants i.e. 5, 8, 9 and 15 were also included filed objections against the preparation of the final decree and those objections were disposed of by the Sub -Judge, Samastipur, on 20.8.1988. The plea of res judicata was also pleaded in those objections and in para -17 of that order which have been filed as Annexures along with the supplementary affidavit it was held by the Sub -Judge that a compromise decree will not operate as res judicata and while rejecting the objections regarding preparation of final decree no stay order was passed and hence the preparation of final decree is still going on. After the ex parte decree was passed on 5.8.1983 against defendant nos. 5, 8, 9 and 15 a petition had been filed under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree in the partition suit. The said petition was registered as Misc. case no. 28 of 1993 and after adjudication the said Misc. case was allowed and the ex parte decree passed in the Partition Suit was set aside only in respect of defendant nos. 5, 8, 9 and 15. The said order in the Misc. case has been challenged before this Court in Civil Revision no. 1049 of 1996 by the plaintiff of the Partition Suit i.e. the petitioner but the same has been dismissed on 15.10.1996. Thus the position remains that the decree passed in the Partition Suit remained intact in respect of other defendants and on the basis of that decree final decree is in the process of preparation while the decree has been set aside in respect of defendant nos. 5, 8, 9 and 15.

(3.) ISSUES had already been framed in the earlier suit and after the ex parte decree was set aside in respect of defendant nos. 5, 8, 9 and 15 written statement was filed and further issues were to be framed in the suit on the basis of the written statement filed by these four defendants only. Then a petition was filed to decide that the present suit is barred by the principle of res judicata on the ground that on earlier occasion there was already a partition suit between the co -sharers of the joint family in partition suit no. 227 of 1951 and the partition suit has been decided on compromise in the year 1956.