1955 (1) TMI 49 - HC - Indian Laws

Summary

Issues Involved:

1. Entitlement of the plaintiff to maintain a suit for partition and recovery of a 2/3rd share in the property.
2. Determination of whether the property in question is joint family property.
3. Applicability of the doctrine of res judicata to the current suit.
4. Impact of the rejection of a review application on the plaintiff's right to maintain the suit.

Issue-wise Detailed Analysis:

1. Entitlement of the Plaintiff to Maintain the Suit:
The primary question was whether the plaintiff could maintain a suit for partition and recovery of a 2/3rd share in the property, given the proceedings in the prior suit (O. S. No. 318 of 1939). The court examined whether the plaintiff's claim was barred due to previous litigation. The court found that the plaintiff was entitled to maintain the suit, as the earlier proceedings had not conclusively addressed the partition and separate possession of the property in question. The court noted that the omission to include the property in the preliminary decree was a result of a mistake, and thus, the plaintiff's current claim was valid.

2. Determination of Joint Family Property:
The court assessed whether the property in question was joint family property. It was established that item 2 was indeed joint family property, as evidenced by the letter (Ex. A-1) dated 20-11-1936, wherein the defendant acknowledged the plaintiff's right to a share. The court found that the defendant did not provide any evidence to substantiate his claim that the property was self-acquired. Consequently, the issue was decided against the defendant, affirming the plaintiff's entitlement to a 2/3rd share.

3. Applicability of Res Judicata:
The court addressed whether the current suit was barred by res judicata due to the proceedings in the prior suit. The court examined various precedents, including the decisions in 'Jogendra Nath Rai v. Baladeo Das' and 'K Venkataswamy v. Baligadu', which supported the notion that a subsequent suit for partition is maintainable if some properties were omitted by mistake or consent. The court concluded that the omission to include the property in the preliminary decree did not operate as res judicata, as the matter had not been finally decided in the prior suit. The judgment of the Subordinate Judge in the prior suit had recognized the plaintiff's share in the joint family properties, and the omission was merely a mistake in the decree.

4. Impact of Rejection of Review Application:
The court considered whether the rejection of the review application precluded the plaintiff from maintaining the suit. The review application had been rejected solely due to non-payment of court fees, not on the merits. The court referred to the decision in 'Srish Chandra v. Triguna Prosad', which established that an application for review is not a suit, and thus, its rejection does not operate as res judicata. Therefore, the rejection of the review application did not bar the plaintiff from pursuing the current suit.

In conclusion, the court found in favor of the plaintiff, allowing the appeal and setting aside the trial court's decree. The court held that the plaintiff was entitled to pursue the suit for partition and recovery of his 2/3rd share, as the previous proceedings did not preclude such action due to the mistake in the preliminary decree. The appeal was allowed, with each party bearing their own costs.