Case Note & Summary
The case involves a partition suit filed by Dr. Bhalchandra Govind Kshirsagar (plaintiff) against his family members (defendants) seeking a 2/3rd share in the suit property, claiming that he contributed to the construction of the building on the property. The trial court decreed the suit only to the extent of 1/3rd share and granted partition and separate possession. The defendants appealed against the preliminary decree (First Appeal No.900/1992) and the final decree (First Appeal No.758/1999), while the plaintiff filed a cross-objection (Cross Objection No.6691/1999) claiming a larger share. The key factual background is that the plaintiff had earlier filed Suit No.73 of 1975 before the Civil Judge, Senior Division, Pune, for recovery of the amount he allegedly contributed to the construction. That suit was dismissed by the appellate court in Appeal No.987 of 1983, and the plaintiff's Second Appeal No.92 of 1988 was also dismissed on 21.3.1988. The defendants argued that the plaintiff's claim for a 2/3rd share based on the same contribution was barred by res judicata. The court analyzed the issue and held that the earlier decision on the contribution issue operates as res judicata, and therefore the plaintiff cannot claim more than 1/3rd share. The appeals and cross-objection were disposed of accordingly.
Headnote
A) Civil Procedure - Res Judicata - Section 11 CPC - Earlier suit for recovery of contribution amount dismissed - Subsequent suit for partition claiming larger share based on same contribution - Held that the issue of contribution is directly and substantially in issue in both suits and the earlier decision operates as res judicata, barring the plaintiff from claiming more than 1/3rd share (Paras 2-3).
Issue of Consideration
Whether the plaintiff's claim for 2/3rd share in the suit property based on his contribution is barred by res judicata in view of the dismissal of the earlier suit for recovery of the same contribution amount.
Final Decision
The court allowed the appeals in part, upholding the trial court's decree granting 1/3rd share to the plaintiff, and dismissed the cross-objection. The court held that the issue of contribution is barred by res judicata.
Law Points
- Res judicata
- Partition
- Contribution
- Final decree
- Preliminary decree
Case Details
2005 LawText (BOM) (04) 140
First Appeal No.900 of 1992, First Appeal No.758 of 1999, Cross Objection No.6691 of 1999
Mr. P.B. Shah for the appellants; Mr. Sanjay Kshirsagar for the respondents
Smt. Radhabai Govind Kshirsagar and another (in FA 900/1992); Sharad Govind Kshirsagar and another (in FA 758/1999)
Dr. Bhalchandra Govind Kshirsagar and others
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Nature of Litigation
Civil appeal against preliminary and final decrees in a partition suit, with cross-objection by plaintiff.
Remedy Sought
Appellants (original defendants) sought to set aside the decrees granting 1/3rd share to plaintiff; plaintiff sought larger share via cross-objection.
Filing Reason
Dispute over share in property based on alleged contribution to construction.
Previous Decisions
Earlier Suit No.73 of 1975 for recovery of contribution amount was dismissed in Appeal No.987 of 1983 and Second Appeal No.92 of 1988 was dismissed on 21.3.1988.
Issues
Whether the plaintiff's claim for 2/3rd share is barred by res judicata due to dismissal of earlier suit for recovery of contribution.
Submissions/Arguments
Appellants argued that the plaintiff's claim for 2/3rd share based on contribution is barred by res judicata as the earlier suit for recovery of the same contribution was dismissed.
Plaintiff argued that the earlier suit was for recovery of money, not for partition, and thus res judicata does not apply.
Ratio Decidendi
The principle of res judicata under Section 11 CPC applies when an issue of fact or law is directly and substantially in issue in a former suit between the same parties and has been heard and finally decided. Here, the plaintiff's claim for contribution was decided in the earlier suit, and the same issue arises in the partition suit, thus barring the claim for a larger share.
Judgment Excerpts
The claim of the plaintiff in the trial court about his 2/3rd right in the property was opposed by the present appellants/the original defendants on two counts.
Since the plaintiff was claiming the major share in the property on the basis of his contribution in the construction and since the plaintiff had filed an earlier suit No.73 of 1975 ... for recovery of the said amount and since ultimately claim of the plaintiff made in the suit came to be dismissed by the Appellate Court in Appeal No.987 of 1983 and the plaintiff's Second Appeal was also came to be dismissed vide Second Appeal No.92 of 1988 by judgment and decree dated 21.3.1988.
Procedural History
The plaintiff filed a partition suit in the trial court. The trial court passed a preliminary decree granting 1/3rd share to the plaintiff. The defendants appealed against the preliminary decree (FA 900/1992). Subsequently, a final decree was passed, and the defendants appealed against it (FA 758/1999). The plaintiff filed a cross-objection (CO 6691/1999) seeking a larger share. All were heard together.
Acts & Sections
- Code of Civil Procedure, 1908: Section 11
