IMPORTANT POINT
Issue of res judicata should not ordinarily be tried as a preliminary issue.

The facts of the case are as follows:

2. The first respondent herein, is said to have filed a civil suit for partition and separate possession of the suit schedule properties, in case No.OS 8532/2002 on the file of the Court of the Principal City Civil and Sessions Judge, Bangalore. The present petitioners are said to be arraigned as Defendants no.1 and 2 therein. The other respondents 2 to 7 herein are the other defendants in the suit.

It is the case of the petitioners that the following is the genealogical tree of the joint family:

Bajjanna

Gangappa

Leela

(1st Defendant)

Sons Daughters

1. G. Prakash 1. Meena Manjunath

(Defendant No.2) (Defendant No.4)

2. G.Sridhat 2. Chandrika Guru

(Defendant No.3) (Defendant No.5)

3. G.Madhu 3.Anitha Shivaprakash

(Plaintiff) (Defendant No.6)

4. Vidya Sundar Raj

(Defendant No.7)

3. The parties are referred to by their rank assigned to them before the trial court for the sake of convenience.

4. It transpires that after the death of Gangappa as on 4.2.1988, the fourth defendant, Meena Manjunath, is said to have filed a suit in OS 5240/1988 for partition and separate possession of 1/35th share in a cinema hall known as “Ashoka Talkies” situated at Frazer Town, Bangalore. It is said that when the above suit was pending, the very defendant had filed another suit against her mother, brother and sisters, in OS 154/1989 before the same court, seeking partition and separate possession of the remaining items of the joint family properties.

In the mean while, the second defendant is said to have filed a petition seeking grant of letters of administration in respect of a will said to have been executed by late Gangappa, in case No.CP 11/1992, before this Court in its Probate jurisdiction. The same is said to have been returned to be filed before the City Civil Court, to be tried as a testamentary suit and it transpires that it was accordingly numbered as case No.OS 1645/1995, on the file of the City Civil Court Bangalore.

It is further stated, that the two suits filed by the fourth defendant and the third suit filed by the Second defendant were clubbed and a common trial was said to have been held. It is stated that the two suits in OS 5240/1988 and OS Nos. 154/1989 filed by the fourth defendant were decreed as prayed for and the suit filed by the Second defendant is said to have been dismissed by a common judgment and decree dated 27.7.1998.

The third defendant being aggrieved by the judgment and decree is said to have preferred an appeal before this court in its appellate jurisdiction, in RFA No. 34/1999 and this court is said to have modified the decree in so far as the allotment of shares was concerned and the appeal was disposed of on 23.11.2008.

It is in the above background that the plaintiff, who is one of the male members of the family, and who was a party in the earlier suits, has filed the latest suit in OS No. 8523/2002 seeking partition and separate possession of the suit properties. Even though the suit refers to the earlier suits, it is significant that except one item of the suit properties all the other items shown in the suit schedule are already ordered to be divided by metes and bounds. The one item which is an exception, it is claimed, is not part of the joint family properties. It is claimed to be the self acquired property of the second defendant. And such acquisition was after the severance of the joint family status.

It is sought to be demonstrated with reference to the several items of the properties which were the subject matter of the earlier suits and the present suit as being one and the same. That in so far as item no.4 is concerned, the same having been purchased as on 9.11.1998 by the second defendant out of his own funds after the joint family properties were divided, is not at all available for partition. The second defendant has sought to produce the sale deed in this regard.

It is hence contended that the subject matter of the suit being