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S. TALAPATRA
Kanan Bala Sarkar – Appellant
Versus
Smti Bholana Ray (Sarkar) – Respondent
JUDGMENT
Heard Mr. B. Banerjee, learned counsel appearing for the appellant. Also heard Mr. S. M. Chakraborty, learned senior counsel assisted by Ms. P. Chakraborty, learned counsel appearing for the respondents.
[2] By the order dated 23.07.2021, the following substantial question of law was framed:
“Whether the finding of the courts below that the suit for partition is barred by res judicata is sustainable in the resume of facts and in terms of Section 11 of the CPC or the finding in that regard is perverse?”
[3] Mr. Banerjee, learned counsel appearing for the appellant has taken this court to the fact relevant for appreciating the substantial question of law as aforenoted. The suit was filed by the appellant seeking partition of the land as described in the Schedules A and B of the plaint. According to the plaintiff, the suit land was originally belonged to one Lalit Mohan Sarkar, the husband of the plaintiff no.1 and father of the plaintiffs no.2 and 3 and father in law of the sole-defendant.
[4] The plaintiff has also asserted that by a registered will dated 22.01.1986, the said original owner bequeathed the entire land measuring 1.07 acre as descried in Para 2 of the plaint. It
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 main legal point established in the judgment is that the plea of res judicata requires consideration of the pleadings, issues, and decision in the previous suit, which is beyond the scope of Orde....
A second suit for declaration and permanent injunction is maintainable if it presents a different cause of action, even if a previous partition suit was dismissed for default.
The right to seek partition is a recurring cause of action, and a fresh suit is not barred by the dismissal of a previous suit for non-prosecution under CPC.
A plaint can only be rejected under Order 7 Rule 11(d) if it fails to disclose a cause of action or is barred by law, without regard to evidence or defenses raised in the written statement.
The main legal point established in the judgment is that a suit for partition can be barred by law and limitation if there is already a decree and final decree in place, and the plaintiff fails to en....
Res judicata requires a full trial to establish; dismissing a suit based solely on pleadings without evidence is incorrect.
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