SUKHDEO MAHTO Vs. AKHILESHWAR MAHTO

JUDGEMENT

(1.) The instant petition has been filed to set aside the order dtd. 5/1/2022 passed in Original Suit No.205 of 2021 by Civil Judge, Jr. Division I, Palamau by which the suit has been admitted for hearing and the notices has been issued against defendants. Petitioner is defendant no.1 in the original suit.

(2.) The admission of the suit and issuance of the notice has been challenged on the ground that petitioner/defendant no.1 had instituted suit for partition of his entire ancestral property on 13/2/1985 which was registered as Partition Suit No.15 of 1985. In the said partition suit, defendant no.3, who happens to be the father of opposite party no.1, 4-6 and grandfather of opposite party nos.2 and 3, appeared, filed the written statement and contested the suit. In this suit (Partition Suit No.15 of 1985), it was specifically pleaded that the subject matter of the present Original Suit No.205 of 2021, were not included in the suit for partition. This issue was decided and held that the said land exclusively belonged the petitioner and as such was not the subject matter of partition. The finding of the Trial Court has attained finality. In the First Appellate Court, in Partition Appeal No.12 of 2007. This fact has been admitted in para 14 of the plaint of Original Suit No.205 of 2021.

(3.) Despite this, the present suit has been admitted which is barred by res judicata. This fact has not been stated in the report of the Serestedar.