Dear Experts,
Facts:
A, B & C are real brothers. Their father died intestate in 1954 leaving behind them as the only heirs and LRs. Their father owned the following properties at the time of his death (all situate in Maharashtra) :
1. Property – X
(an agricultural land which is acquired by State Govt under Land Acquisition Act in 1986)
2. Property – Y
(an agricultural land which is acquired by State Govt under Land Acquisition Act 1986)
3. Property – Z
(a house property within Gram panchayat jurisdiction & was vacant since 1990 as the three brothers were staying separately & away from this panchayat village due to their respective jobs, but within the same district as property Z)
1954:
After the death of the father, all the above properties came to be mutated in the name of ‘C’, he being the eldest of the three brothers & head of the joint family. Consequently the awards under LA Act in respect of properties X & Y were declared in the name of C alone and he alone received the amount of compensation.
1994:
In 1994, A & B filed regular civil suit no.FF/1994 against C for Declaration, Partition and Injunction in respect of above properties.
1996:
The said suit was decreed on 29 January, 1996 in view of consent/compromise terms filed by the parties.
As per the said compromise decree,
1. It was declared that A, B & C have 1/3rd rights in the entire suit property and that the name of ‘C’ in the records of rights was entered merely because he is the head of the joint family.
2. The share of each party i.e. 1/3rd in the amount of compensation received and receivable in respect of properties X & Y was to be separated and handed over to each party accordingly.
3. Within 30 day of the decree, the property – Z (house) was also to be partitioned and 1/3rd share of each party was to be separated and handed over to each party and was to be mutated in their individual names as per their respective independent share.
1996 & 2015 :
Accordingly, C distributed the amount of compensation between A, B & C equally which he had received in respect of properties X & Y. They further received enhanced compensation in 2015 which was again distributed accordingly.
1996 :
A & B made an application in February 1996 to the concerned Grampanchayat for entering their names along with ‘C’ to property –Z giving reference to above compromise decree. They also annexed the copy of the said compromise decree to their application. However, they failed to mention the house number in the said application to which they wanted their names to be entered. The plaint and decree also did not mention the house number of property - Z, nor its geographical boundaries.
The Grampanchayat received the application, but did nothing further with that.
A & B also kept quiet and did not follow up with the concerned Grampanchayat. The property Z continued to be in the name of C.
2000:
As ‘C’ had retired from services and was staying on rent, ‘A’ released his rights in property-Z in favour of C, by entering into an unregistered release deed. Later ‘B’ too had relinquished his rights in favour of ‘C’, but orally in presence of two other witnesses. A & B have their owned separate residences and they are staying there with their respective families.
2001:
‘C’ demolished the old structure of property Z as it was in dilapidated condition and built a house thereon and started staying there with his 4 sons.
2010:
‘C’ again demolished the 9 yr old house and constructed Ground + 1 on property Z and thereafter transferred the property in the name of his 4 sons in Grampanchayat records.
2016:
C wants to further raise the construction to Ground + 3 on property Z. Construction work is being carried out accordingly.
2016:
A & B filed a regular civil suit no. PP/2016 against C, his 4 sons and Grampanchayat for declaration and injunction in respect of property Z, praying therein:
1. THE DECLARATION that “ as per decree passed in RCS no.FF/1994, the plaintiffs (i.e. A & B) have 2/3rd rights in property Z; and
2. that Grampanchayat be directed to enter the names of A & B as having 1/3rd share each to property Z.
In the circumstances,
Whether RCS.PP/2016 is barred by section principle of Respondent-judicata as envisaged in S.11 of CPC?
Please advise.
Thanking you in anticipation
