Skip to content


Manorath Choube and ors. Vs. Musammat Sumera and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1915All170; 28Ind.Cas.454
AppellantManorath Choube and ors.
RespondentMusammat Sumera and ors.
Cases ReferredLachman Das v. Hanuman Prasad
Excerpt:
u.p. land revenue act (iii of 1901), section 233k - partition--subsequent suit claming a share, allotted at partition, by inheritance--res judicata. - - on appeal the lower appellate court, following oat a train of reasoning which we do not think it necessary to describe in detail, came to the conclusion that the suit was barred by the aforesaid section in so far as it related to the share which had been ram harak's, but not barred in respect of the share which bad been bhola's......which we do not think it necessary to describe in detail, came to the conclusion that the suit was barred by the aforesaid section in so far as it related to the share which had been ram harak's, but not barred in respect of the share which bad been bhola's. the learned additional subordinate judge accordingly passed an order remanding a portion of the suit, as originally brought, for trial on the merits under the provisions of order xli, rule 23, of the code of civil procedure. the plaintiffs appeal against this order in so far as it confirms the dismissal of a portion of their claim, namely the claim relating to the share which had been ram harak's. it is obvious that no part of the suit as originally brought is barred by section 233k of the land revenue act. the case of.....
Judgment:

1. This was a suit for possession of a certain zemindari share, with regard to which it is sufficient to say that it was made up of shares which had at one times belonged to two brothers named Bhola and Ram Harak. The suit was contested on somewhat different grounds by two sots of defendants and the pleadings raised a number of issues of fads and law. At a late stage of Hits trial in the Court of first instance, a special plea was put in to the effect that the suit as brought was barred by Section 233 of the Land Revenue Act (Local Act III of 1901). An issue haying been framed on this point, the learned Munsiff came to the conclusion that the suit was so barred, and he dismissed it accordingly. On appeal the lower Appellate Court, following oat a train of reasoning which we do not think it necessary to describe in detail, came to the conclusion that the suit was barred by the aforesaid section in so far as it related to the share which had been Ram Harak's, but not barred in respect of the share which bad been Bhola's. The learned Additional Subordinate Judge accordingly passed an order remanding a portion of the suit, as originally brought, for trial on the merits under the provisions of Order XLI, Rule 23, of the Code of Civil Procedure. The plaintiffs appeal against this order in so far as it confirms the dismissal of a portion of their claim, namely the claim relating to the share which had been Ram Harak's. It is obvious that no part of the suit as originally brought is barred by Section 233K of the Land Revenue Act. The case of Lachman Das v. Hanuman Prasad 8 Ind. Cas. 807 : 7 A.L.J. 1156 : 33 A. 169 has been misapprehended by the Courts below. The plaintiff in that suit was seeking to disturb the allocation of certain lands which had been made at a partition before a competent Revenue Court, in the present case the plaintiffs are not seeking to interfere in any way with the proceedings of the partition Court. They claim to have become entitled, by inheritance as reversionary heirs, to a share which had been dealt with in a particular way at a certain partition. What the learned Subordinate Judge probably had in his mind was the question whether a certain order passed by the Court effecting the partition might not have the effect of res judicata between the present parties in respect of a portion of thy plaintiffs' claim or in respect of one or more of the questions put in issue between the parties. This may or may not be so, but the issues of titles raised by the pleadings require to be tried on the merits, taking into consideration also what was decided by the Revenue Court during the partition when certain questions of title were raised as between the present plaintiffs on the one baud and Musammat Gajraji, widow of Bhola, on the other. With these remarks we accept this appeal, set aside so much of the order of the lower Appellate Court as refers to the share of Bhola, and remand the entire suit to the Court of first instance for decision on the merits. Costs of this appeal will be costs in the suit.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //