IMPORTANT POINT
The principle of res judicata does not apply when a previous suit is dismissed on technical grounds, allowing for a new suit to be filed based on a recurring cause of action for partition.

JUDGMENT :

Sujit Narayan Prasad, J.

1. The instant petition has been filed for quashing of order dated 07.09.2021 passed in Original Suit No. 56 of 2017 by learned Civil Judge, Senior Division-II, Dhanbad whereby and whereunder petition dated 18.02.2019 filed by the petitioners, [defendant nos. 10, 11 and 13 in Original Suit No. 56 of 2017 i.e., three daughters of late Rameshwar Bhagat] [though only defendant nos. 10 and 11 have chosen to file the present petition i.e., CMP No. 419 of 2021], whereby and whereunder prayer made to drop the trial of the original suit being Original Suit no. 56 of 2017 was rejected.

2. This Court, before adverting to the prayer made in the instant petition, deems it fit and proper to refer certain factual aspects as per the pleadings available on record, for proper adjudication of lis:

3. Initially, the plaintiffs, namely, Jogendra Bhagat and one Ram Awadh Bhagat, filed one partition suit being Title Partition Suit No. 150 of 1996 against (1) Lali Bhagat (2) Gajadhar Bhagat (3) Binod Bhagat and (4) Kalicharan Bhagat praying therein for partition of 1/4th share in Schedule B property in their favour, after appointing Survey Knowing Pleader Commissioner and also for possession over the said property. However, since during pendency of the suit defendants no. 1-Lali Bhagat and defendant no. 4-Kalicharan Bhagat died as such they were substituted by 1(a) Rajendra Bhagat; 1(b) Surendra Bhagat; 1(c) Satyendra Bhagat, 1(d) Smt. Saraswati Devi, all children of Late Lali Bhagat and 4(a) Meena Devi, D/o late Kalicharan Bhagat. The relationship between the plaintiffs and defendants, with reference to their common ancestor Bechu Bhagat was set out in the Genealogical table given in Schedule A of the plaint.

4. The ancestors of the plaintiffs and defendants originally belongs to district Chhapra, the then State of Bihar and acquired some ancestral landed property by virtue of inheritance, as described in Item No. 1 of Schedule B of the plaint, which were recorded in the name of Bechu Bhagat. Since the ancestors of plaintiffs and defendants were facing hardship in maintaining his family from the emerging income of Item I of Schedule B property, as such defendant no. 1 (Lali Bhagat S/o Bechu Bhagat) first of all came to Dhanbad to earn livelihood and on the land as described in Item No. II of Schedule B, which was initially full of Jhari and Putus, started cultivation for his livelihood by growing vegetables thereupon. But it is alleged that after sometime, the performa defendant no. 4 (Kalicharan Bhagat, S/o late Bechu Bhagat), i.e., father of defendant no. 2 and 3, and plaintiff no. 1 [Ramawadh Bhagat, S/o late Bechu Bhagat] also came to Dhanbad and after doing hard labour reclaimed the entire lands described in Item No. II of Schedule B of the plaint and began to possess jointly by growing vegetables etc. and were residing over the same. Later on, the State made claim over the said land, as mentioned in Item No. II of schedule B land and with the joint earnings of parties, the litigation fought up-to Hon'ble Supreme Court in the name of defendant no. 1.

5. Further, from the joint family income of plaintiff no. 1, defendant no.1, performa defendant no. 4, and the father of defendant no. 2 and 3, i.e., from the earning made from Item No. I and II of Schedule B property they purchased agricultural lands vide various registered deeds and are in joint possession thereof. It has been alleged that property mentioned at item no. II is morefully described in Item No. III of Schedule B of the plaint.

6. Further the plaintiff no.1, defendant no. 1, performa defendant no. 4 and the father of defendant nos. 2 and 3 also purchased lands in their joint name in Mauza Madarpur, District Chapra and constructed Pucca residential house thereupon, which is mentioned in Item No. IV of Schedule B of the plaint.

7. Father of defendant nos. 2 and 3 from the joint family income also purchased land and house in Dhanbad in his own name vide regis