Case Note & Summary
The case involves a Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 against the judgment and decree dated 17.04.2007 passed in O.S.No.257/2004 by the Principal Civil Judge (Senior Division), Gulbarga, which decreed the suit for partition, separate possession and injunction. The appellants are defendants in the suit. The appeal was heard along with Regular Second Appeal No.7126/2008, which was decided in favour of the appellant therein by a judgment delivered on the same day. The present appeal arises from a suit for partition filed by the plaintiff (respondent No.1 herein) claiming a share in the suit property. The appellants' claim in the appeal was based on a judgment and decree that was the subject matter of RSA No.7126/2008. Since that decree has been set aside in the second appeal, the foundation of the appellants' claim is destroyed. The court noted that the decision in RSA No.7126/2008 has a direct bearing on the present appeal. Consequently, the court held that the appeal is liable to be dismissed. The judgment includes a genealogy of the plaintiffs to depict the background. The court dismissed the appeal with no order as to costs.
Headnote
A) Civil Procedure - Res Judicata - Effect of Reversal of Decree - Where the appellants' claim for partition was founded on a judgment and decree that was the subject matter of a related second appeal, and that decree has been set aside, the foundation of the appellants' claim is destroyed and the appeal must be dismissed. (Paras 1-4) B) Partition - Suit for Partition - Dismissal - When the basis of a claim for partition is a decree that has been reversed in appeal, the claim cannot survive and the suit is liable to be dismissed. (Paras 1-4)
Issue of Consideration
Whether the appellants are entitled to partition of the suit property based on a prior judgment and decree that has been set aside in a related second appeal.
Final Decision
The appeal is dismissed. No order as to costs.
Law Points
- Partition
- Res Judicata
- Civil Procedure
- Land Reforms
- Adoption
- Hindu Succession
