Case Note & Summary
The present second appeal arises from a judgment and decree dated 31.12.1990 passed by the Additional District Judge, Bhandara, in Regular Civil Appeal No. 34 of 1989. The appellate court allowed the appeal of the original plaintiff (respondent no.1) and reversed the trial court's decree in Regular Civil Suit No. 178 of 1982, which had dismissed the suit. The appellants, original defendants 1 and 2, are aggrieved by this reversal. The dispute pertains to a claim for partition of agricultural lands. The core issue is whether an oral partition allegedly effected on 7.4.1970, which was the subject of an earlier Civil Suit No. 234 of 1975, operates as res judicata in the present suit. The appellants argued that the appellate court erred in holding that the finding regarding oral partition in the earlier suit amounted to res judicata, as the issue was never tried on merits but was merely held to be 'does not survive'. The respondents contended that the earlier suit's finding should bind the parties. The court analyzed the principle of res judicata under Section 11 of the Code of Civil Procedure, 1908, and held that for res judicata to apply, the issue must have been actually tried and adjudicated upon. In the earlier suit, the trial court did not decide the issue on merits; it only recorded that the issue did not survive because the plaintiff himself claimed oral partition. Therefore, such a finding cannot operate as res judicata. Additionally, the appellants were not parties to the earlier suit, further weakening the claim of res judicata. The court also noted that no document of oral partition was produced in the present suit, and the map (Ex.87) relied upon by the appellate court merely recorded that partition was effected, which is insufficient proof. Consequently, the court allowed the appeal, set aside the appellate court's judgment, and restored the trial court's decree dismissing the suit.
Headnote
A) Civil Procedure - Res Judicata - Issue Not Tried on Merits - Section 11, Code of Civil Procedure, 1908 - The principle of res judicata applies only when an issue has been actually tried and adjudicated upon by a competent court. In the earlier suit, the issue regarding oral partition was held to be 'does not survive' and was not decided on merits. Therefore, such a finding does not operate as res judicata in subsequent proceedings. (Paras 2-3) B) Property Law - Oral Partition - Proof - No specific section - Oral partition must be proved by cogent evidence. The appellate court's finding that there was an oral partition on 7.4.1970 was based on a map (Ex.87) which itself recorded that partition was effected, but the appellants were not parties to the earlier suit and no document of partition was produced. The appellate court erred in relying on the earlier suit's finding without proper adjudication. (Paras 2-3)
Issue of Consideration
Whether the finding regarding oral partition dated 7.4.1970 in earlier Civil Suit No. 234 of 1975 operates as res judicata in the present suit, and whether the appellate court erred in reversing the trial court's decree.
Final Decision
The appeal is allowed. The judgment and decree dated 31.12.1990 passed by the Additional District Judge, Bhandara, in Regular Civil Appeal No. 34 of 1989 is set aside. The judgment and decree of the trial Court in Regular Civil Suit No. 178 of 1982 is restored. No order as to costs.
Law Points
- Res judicata requires issue to be tried and adjudicated on merits
- issue held as 'does not survive' does not constitute res judicata
- oral partition must be proved by evidence
