Bombay High Court Nagpur Bench heard a second appeal challenging first appellate reversal of trial court decree granting counter claim in a partition suit. The court framed substantial questions on res judicata under Section 11 CPC, court fee for counter claim, and perversity of findings on prior partition and evidence.

Civil suit for partition of ancestral joint Hindu family property and house; counter claim for partition of further agricultural properties.

Original plaintiff sought partition of the suit house and claimed one-third share; original defendants sought partition of agricultural ancestral properties and inclusion of all joint family properties in hotch-pot through counter claim.

Dispute over whether agricultural properties at Mouza Shivangaon were earlier partitioned and whether suit property remained joint family property; defendants alleged earlier suit had held no partition and claimed res judicata.

Trial Court in Regular Civil Suit No.859/1977 held that the suit house and field Survey Nos.99 and 100 at Village Isasani were ancestral joint Hindu family property, that the plaintiff failed to prove earlier partition, that the suit was barred by res judicata, and granted the counter claim of the defendants. The First Appellate Court in Regular Civil Appeal No.4/1997 reversed the trial court and dismissed the counter claim on grounds of non-payment of court fee and on merits. Earlier Regular Civil Suit No.858/1977 and Regular Civil Appeal No.419/1984 held that the judgment in Civil Suit No.24/1969 was binding and operated as res judicata, holding no earlier partition and all properties jointly held.

Whether the first appellate court could dismiss the counter claim on the ground of non-payment of court fee when the appellants had deposited the requisite court fees along with the application at Exh.63? Whether the first appellate court could dismiss the counter claim only by recording that the counter claim was not sustainable on merits? Whether the finding by the First Appellate Court on res judicata was perverse, particularly because the same judge in Regular Civil Suit No.858/1977 and Regular Civil Appeal No.419/1984 held earlier judgment in Civil Suit No.24/1969 binding and operating as res judicata? Whether the evaluation of evidence by the First Appellate Court was perverse in only considering some answers to suggestions instead of overall conspectus of entire evidence? Whether the finding of the First Appellate Court that there was partition by metes and bounds between family members in 1935 and 1970 was based on no evidence and hence perverse? Whether reliance placed by the First Appellate Court on Exhibits 112, 113, 123, 124, 125 and 126 to arrive at conclusion of prior partition amounted to grave perversity?

The appellants submitted that the plaint itself mentioned partition between Raghunath and Zamya after death of common ancestor Kashinath, without specifying year of partition or death, and that the property falling to Raghunath's share was the subject matter; there was no dispute about Raghunath's two wives and legal heirs. The plaintiffs contended that partition of some properties took place between Kashinath, Manikrao and Dajiba thirty years before 1977. The defendants argued that the suit was hit by Section 11 of the Code of Civil Procedure, that the property in the name of Raghunath was never partitioned, that all properties in the names of Kashinath, Manikrao and Dajiba and their sons remained joint family property, and that the suit house be put in hotch-pot for complete partition.

The present Second Appeal is filed by the appellants being aggrieved by the judgment and decree passed in Regular Civil Appeal No.4/1997 on 23/03/2007 by the Court of 1st Ad-hoc Additional District Judge, Nagpur reversing the judgment in Regular Civil Suit No.859/1977 of the Court of the VIIth Joint Civil Judge, Junior Division, Nagpur dated 01/10/1996, granting the counter claim of the appellants/defendants in respect of partition of the agricultural ancestral properties. The learned Trial Court held that the Plaintiff has proved that the house at Shivangaon and Field Survey Nos. 99 and 100, Village Isasani is the ancestral joint Hindu Family property. It is also held by the learned Trial Court that the Defendant proved that along with the Suit Property, the property mentioned in Paragraph No. 6 of the written statement, should also necessary to be put in hotch-pot for partition. It is held that the Plaintiff failed to prove that there was any earlier partition. It is also held that the Suit is barred by res-judicata. This Court vide order dated 23/09/2008 framed following substantial question of law :- (i) Whether the first appellate Court could have dismissed the counter claim on the ground that the requisite court fee was not paid, though the appellants had deposited the requisite court fees along with the application at exh. 63?

The original plaintiff filed Regular Civil Suit No.859/1977 in the Court of VIIth Joint Civil Judge, Junior Division, Nagpur seeking partition. The Trial Court by judgment dated 01/10/1996 held the suit property to be ancestral joint Hindu family property, dismissed the claim of prior partition, held the suit barred by res judicata, and granted the counter claim of the defendants. The First Appellate Court in Regular Civil Appeal No.4/1997 by judgment dated 23/03/2007 reversed the trial court and dismissed the counter claim. The present Second Appeal No.373/2008 was filed challenging the first appellate judgment. The High Court framed substantial questions of law on 23/09/2008 and additional substantial questions on 03/07/2023. Earlier related proceedings included Civil Suit No.24/1969, Regular Civil Suit No.858/1977 (judgment dated 13.08.1983) and Regular Civil Appeal No.419/1984 (judgment dated 03.12.1988), which held the earlier judgment binding and operating as res judicata.

• Code of Civil Procedure, 1908: Section 11