An incidental finding in a previous suit does not operate as res judicata in a subsequent suit if the issue was not directly and substantially in issue in the previous suit. Private partition, even if not incorporated in the revenue record, is legal and valid and cannot be ignored by the courts.

ANIL KSHETARPAL, J.

1. Defendants-appellants are in the regular second appeal against the concurrent finding of fact arrived at by the Courts below.

2. Plaintiff filed a suit for separate possession by way of partition claiming that the property in question is joint and she is having 1/7th share in the same. It is pleaded case of the plaintiff that originally there was a business firm i.e. M/s Minaxi Ginning Pressing and Oil Mills, a partnership firm. The said firm was closed and the plaintiff has already shifted to the State of Maharashtra. It is further pleaded case of the plaintiff that the factory building was demolished and the land was converted into plots and some of the co-sharers have already sold their share in the suit property. She prayed that she has not sold any share and hence, she is co-sharer to the extent of 1/7th share. The suit was contested by some of the defendants. They pleaded that the property is not joint as the same has already been partitioned. It was pleaded that the entire property has been converted into plots and the defendants have purchased specific plots through registered sale deeds and constructed boundary wall. Some of the defendants even pleaded that they have raised the construction. The plaintiff impleaded 45 defendants.

3. Both the Courts while relying upon inter-parties judgment dated 24.07.2010 concluded that in the previous suit, the plaintiff has been held to be co-sharer and the aforesaid finding is res judicata between the parties. The Courts have further held that since private partition as alleged has not been incorporated in the revenue record, therefore, there is no severance of status as a co-sharer. Hence, the preliminary decree of partition has been passed which affirmed by the learned First Appellate Court.

4. In the considered opinion of this Court, the following substantial questions of law arise for consideration:-

1. Whether an incidental finding given in the previous suit particularly when the issue was not directly and substantially in issue in the previous suit, operates as res judicata in a subsequent suit?

2. Whether partition of the property mutually agreed upon between the parties in absence of its having been incorporated in the revenue record cannot be recognized by the Courts?

Question No.1

(i) Whether an incidental finding given in the previous suit particularly when the issue was not directly and substantially in issue in the previous suit, operates as res judicata in a subsequent suit?

5. Judgment passed in the previous suit is Ex.P-1 on the file. In the previous suit, learned Court had framed the following issues:-

“1. Whether the plaintiff is entitled to the declaration as prayed for? OPP

2. Whether plaintiff is entitled in the permanent injunction as prayed for? OPP

3. Whether the suit of the plaintiff is not maintainable in the present form? OPD

4. Whether the plaintiff has no locus standi or cause of action to file the present suit?OPD

5. Whether the plaintiff has not come to the court with clean hands and concealed the material facts?OPD

6. Whether the plaintiff is estopped by her own act and conduct from filing the present suit? OPD

7. Whether the suit of the plaintiff is bad for non-joinder and mis-joinder of necessary parties? OPD

8. Relief.”

6. A reading of the issues would show that issue of plaintiff being co-owner/co-sharer was not directly and substantially in issue in the previous suit. No doubt, while deciding the previous suit, the Court has held that the plaintiff is co-sharer and hence, she has locus standi to file the suit but in the considered opinion of this Court, such finding cannot be treated as an issue which is directly and substantially in issue. Res judicata is defined in Section 11 of the Code of Civil Procedure which is extracted as under:-

“11. Res judicata – No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same part