Resjudicata
Mohamed Ali
(Querist) 17 June 2014
This query is : Resolved
Sir. We are sunnihanafi family..in our family our grandmother was survived by only 2 daughters and her only son had predeceased her leaving behind a son and a daughter. The 2 daughters filed a declaratory suit against predeceased sons children seeking declaration that only 2 daughters are entitled to inherit the left over property of their mother,but court dismissed suit saying 2 daughters are entitled for 2/3rd share only rest 1/3rd will go to residuaries in this case predeceased son and daughter... hence we filed a new partition suit for seperate possesion of our 2/3 share in left over properties of our mother which are in joint possession with predeceased sons children.. Question: Whether filing a partition suit after the dismissal of declaratory suit seeking seperate possession of 2/3rd share of 2 daughters amounts to Resjudicata ?
Raj Kumar Makkad
(Expert) 17 June 2014
No. The cause of action is entirely separate than the previous one. In the earlier suit, the issue was to determine the share of the disputing parties whereas in the latest suit, the issue is partition of the already declared share.
Rajendra K Goyal
(Expert) 17 June 2014
No it does not amounts to Resjudicata. agree with the expert.
R.K Nanda
(Expert) 17 June 2014
no is the answer.
T. Kalaiselvan, Advocate
(Expert) 21 June 2014
The doctrine of Res-judicata will not apply to this issue. The present partition suit is filed for a different relief with different cause of action whereas the previous declaratory suit is totally different to the present one.
Mohamed Ali
(Querist) 11 July 2014
Dear All,
My case NEXT DATE is for ISSUES, First and foremost issue Judge has made is Resjudicata, Do i have to file objection to ISSUE NO.1 OR i have to file application for recasting of issues and deletion of issue no.1, by giving the reason that it is not a resjudicata. In what way i have to object to the Issue no.1..
Thanks and Rgds
Ali
Raj Kumar Makkad
(Expert) 12 July 2014
You shall not face any harm in case the issue of res-judicata is framed and its onus to prove is fixed for your opposite party.
prabhakar singh
(Expert) 12 July 2014
NOT RESJUDICATA BUT GUARD AGAINST ORDER 2 RULE 2 OF CPC,MAY PERHAPS IS REQUIRED,IF PRESENT PLAINTIFFS WERE ALSO PLAINTIFFS IN PREVIOUS SUIT .HOWEVER PARTITION IS A RECURRING CAUSE OF ACTION.
