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.

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 has been also asserted that the land measuring 0.036 acre devolved to three sons on death of Lalit Mohan Sarkar, the original owner. In Para-3 of the plaint, the said land has been described. It has been admitted by the plaintiff, since the amicable partition could not be struck between the legal heirs of Lalit Mohan Sarkar, the suit seeking partition was instituted. The certified copy of the said will and one sale deed bearing No.1664 of 2013 have been filed in the suit. The sole defendant by filing the written statement has seriously contested the pleadings of the appellant (the plaintiff) by stating that in the year 2016, the plaintiff No.1 alone filed a partition suit against the defendant being TS(Partition) 01 of 2016. The said suit was dismissed on 27.06.2017 and no appeal was preferred by the plaintiff No.1 from the said decree of dismissal dated 27.06.2017.

[5] According to the sole defendant, the suit, as freshly instituted by the plaintiff, is therefore barred by principle of res judicata. By way of suppression of the aspect, the instant suit has been instituted by the plaintiff No.1. Hence the plaint be returned under Order VII, Rule 11 of the CPC. By the judgment dated 13.12.2019 [delivered in TS(Partition) 05 of 2018], the trial judge has observed that the suit is barred by the principles of res judicata. According to him, the plaintiff No.1 was having knowledge that the land measuring 0.07 acre was sold by Swapan Sarkar from the suit property to one Dilip Paul but that aspect has been suppressed by the plaintiff. Thus, the plaintiff cannot be permitted to institute a fresh suit in view of the provision of constructive res judicata as provided under Explanation- IV of Section 11 of the CPC. Explanation –IV of Section 11 of CPC provides that in order to stop multiple litigations on the same subject or to bring a new ground before the court, a person cannot be allowed to bring a fresh suit between the same parties, on the same issues or the ground which ought to have been taken but was not taken. According to the trial judge, in the earlier suit, the issue of partition has been substantively decided and hence, the subsequent suit being TS (Partition) 05 of 2018 is untenable and unsustainable.

[6] Being aggrieved by the said decision, the present appellant filed an appeal