The dismissal of an earlier partition suit for default does not bar a subsequent partition suit, as the right to sue for partition is a continuing right and incidental to the ownership of joint property.

The present appeal is filed by the defendants

being aggrieved by the order dated 03.01.2018 passed in

R.A.No.11/2011 on the file of II Additional District Judge

at Haveri (hereinafter referred to as “the First Appellate

Court” for short) in and by which, the First Appellate Court

while setting aside the judgment and decree dated

04.12.2012 passed in O.S.No.14/2011 on the file of Senior

Civil Judge, Byadgi (hereinafter referred to as “the Trial

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Court” for short) remanded the matter to the Trial Court

for fresh disposal in accordance with law on merits after

providing sufficient opportunity to the parties. Being

aggrieved by the same, the defendants are before this

Court.

The above suit in O.S.No.14/2011 was filed by

the

plaintiffs

for

relief

of

partition

and

separate

possession. The said suit came to be dismissed by the

Trial Court on the issue of res-judicata holding that on an

earlier occasion a original suit in O.S.No.123/2003 was

filed, which was dismissed on the premise of plaintiffs not

adding all the family properties for partition. The dismissal

order was apparently carried up to this Court in regular

second appeal in RSA.No.1579/2007 which had also

confirmed the said order.

It is stated that taking into consideration of the

dismissal of the earlier suit, the Trial Court in the aforesaid

impugned order framed the following issues:

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C£ÀÄßöªÀÅzÀ£ÀÄß ªÁ¢ gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ?

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DUÀÄvÀÛzÉ ¥ÀæwªÁ¢ ¹zÁÞ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ?

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4. AiÀiÁªÀ DzÉñÀ ªÀÄvÀÄÛ rQæ?

Trial Court taking into consideration of the

dismissal of regular second appeal in RSA.No.1579/2007,

which

arose

out

of

the

dismissal

of

suit

in

O.S.No.123/2003, held that in view of dismissal of the

said regular second appeal, the same was hit by principles

of

res-judicata

and

as

such,

the

above

suit

in

O.S.No.14/2011 was not maintainable.

Being aggrieved by the same, the plaintiff has

preferred regular appeal in R.A.No.11/2013 before the

First Appellate Court. The First Appellate Court raised the

following points for its consideration;

1.

Whether the Trial Court justified in dismissing

the suit of the plaintiffs by holding that, suit of

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the plaintiffs is hit by the principles of res-

judicata as contemplated U/sec.11 of CPC?

2.

Whether the impugned judgment and decree

passed by the trial court in O.S.No.14/2011

calls for any interference by this court?

3.

What order or decree?

The First Appellate Court after appreciating the

material evidence on record reversed the judgment and

decree of the Trial Court by holding that dismissal of suit

in

O.S.No.123/2003

confirmed

by

this

Court

in

RSA.No.1579/2007 did not amount to res-judicata and

accordingly remanded the matter for fresh disposal in

accordance with law after affording sufficient opportunity

to the parties. It is this order is challenged by the

appellants/defendants before this Court.

Sri Ravi S.Balikai, learned counsel for the

appellants apart from reiterating the grounds urged in the

memorandum of appeal submits that, the First Appellate

Court at the first instance did not have jurisdiction to try

the suit as it lack pecuniary jurisdiction. In that regard, he

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submits that the value of the properties which were

subject matter of the suit was Rs.35,00,000/- and the

value of the share which was under challenge was about

Rs.30,00,000/- and the First Appellate Court therefore did

not have pecuniary jurisdiction to try the appeal.

Secondly he submits that, since the earlier suit

which was dismissed and dismissal of which was confirmed

by this Court in RSA.No.1579/2007 indeed amounts to

res-judicata. In that view of the matter, he submits that

there remained nothing for the First Appellate Court to

remand the matter. Hence, he seeks for allowing the

present appeal.