Reesjudicata
G.L.N. Prasad
(Querist) 15 December 2017
This query is : Resolved
The following is HC judgment in a partition case seeking her share of property by plaintiff with pleading that fraudulent and collusive alienation by her undivided son in earlier specific performance suit expartee decree is not binding on her share of property. The appeal was against dismissal by trial court that she has lost possession long back and she has to file declaration suit and must pay Adv.Court fee. The contention at the trial court is that alienation by her son can not bind her share of property and hence a general partition suit was filed.
Therefore we hold that the suit for partition is not maintainable without seeking a declaration that the decree and judgment in the suit for specific performance in OS No.54/68 are not valid and not binding on the plaintiff
Please guide as to whether
a)a finality was reached on partition suit.
b)Whether resjudicata applies now for filing of declaration suit praying for setting aside expartee decree as directed by HC.
c)The commencement date of limitation when a document concealed by the parties was discovered in the record of Public authority on 23-3-13 was filed before HC,. This document was admitted as concealed, contents were discussed in main judgment, but contents were not admitted stating that officials of public authority were not examined during trial.
d)Whether court fee has to be paid on all reliefs separately on prayers for 1)setting aside expartee decree,2) cancellation of sale deed, and on other 3)individual partitions in purchaser family members when the pleading is fraud on court by their father plaintiff in specific performance suit and misrepresentation and when such partition was done by plaintiff's members to defeat the rights of plaintiff during litigation and during status quo order by Court.
Dr J C Vashista
(Expert) 17 December 2017
Initially suit for specific performance was instituted, isn't it? What specific relief was sought? How was the provision of Specific Relief Act invoked?
You have stated to have asked for partition, which is beyond the scope of Specific Relief Act.
Neither the statement nor the query is followed being vague.
Show the judgment to a local prudent lawyer for proper appreciation of facts, guidance and proceeding.
