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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
ROHIT W.JOSHI
Suryakant s/o Shankar – Appellant
Versus
Manika s/o Datta (Died) Through L.Rs. – Respondent
JUDGMENT :
ROHIT W. JOSHI, J.
1. The present second appeal arises out of judgment and decree dated 29.02.1992 passed by the learned Joint Civil Judge, Senior Division, Nanded dismissing suit for partition and separate possession filed by the present appellants, being Regular Civil Suit No.454/1990 as also against judgment and decree dated 12.07.1995 passed by the learned 3rd Additional District Judge, Nanded dismissing Regular Civil Appeal No.132/1992 preferred by the appellants/original plaintiffs against the judgment and decree passed by the learned Trial Court. Parties will be referred as "plaintiffs" and "defendants" in the judgment hereinafter.
2. Plaintiff Nos.1 to 3 are brothers and plaintiff no.4 is their mother. The defendant is paternal uncle of plaintiff nos.1 to 3. The father of the plaintiffs expired in the year 1976. The dispute between the parties pertains to half portion of agricultural land admeasuring 7 acres 4 gunthas out of land bearing Gut No.39 old survey no.23/A total admeasuring 15 acres 35 gunthas situated at Gangabet, Tq. & Dist. Nanded.
3. It is the case of the plaintiffs that in the year 1968, there was partition between their grand father (Datta), father (
Withdrawn partition suits do not preclude subsequent partition actions; res-judicata is not applicable where the first suit was not decided on merits.
The court held that the doctrine of res judicata precludes the maintainability of a subsequent suit on the same issues already adjudicated in a prior case.
Res judicata requires a full trial to establish; dismissing a suit based solely on pleadings without evidence is incorrect.
The right to seek partition is inherent and continuous for co-owners; prior dismissal of a partition suit does not bar subsequent suits, provided the parties are different.
The principle of res judicata bars litigation on matters already adjudicated, and can be decided as a preliminary issue when sufficient materials exist.
In disputes regarding partition of joint Hindu family property, the burden of proof lies on the party asserting partition, and the presumption of jointness remains unless clear evidence to the contra....
The First Appellate Court erred by failing to frame appropriate consideration points under C.P.C., affecting the legality of its judgment in the partition suit.
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