Ramprasad And Ors vs Rajnath Yadav And Ors

Goutam Bhaduri, J

Heard.

The present appeal is against the order dated 23.10.2015, whereby learned appellate Court in an appeal remanded the case for fresh adjudication to

the trial Court. Initially before the trial Court an application under Order 7 Rule 11 CPC was allowed, which was moved by the defendants. The same

having been challenged in the appellate Court, the appellate Court found that the property in question in an earlier suit as also in the subsequent suit,

the cause of action is different and claim of the property is confined to certain part of the land, which was not subject part of the earlier suit, therefore,

the remand was made.

Learned counsel for the appellants would submit that the plaintiffs themselves have admitted the fact that earlier in respect of the same suit

property a civil suit was filed, which was adjudicated and the rights of the parties were decided, as such in respect of the same property, subsequent

suit was hit by Section 11 of the CPC, therefore, the order impugned is completely illegal.

Perused the order of the Court below. The learned appellate Court while evaluating the facts has held that the earlier civil suit was filed by

Shivratan and Shambhu, wherein the claim was made that the property was a joint undivided property and it was stated that Jageshwar and his

brothers have the same and equal right, therefore, it can be partitioned and half share of the land shall be given. The Court below held that the

subsequent suit which is filed by the legal heirs of one of the holders namely Shivratan and only claim is confined to 2 acres of land, the cause of

action was arose in the subsequent suit claimed to be on the basis of a panchnama dated 22.06.2000 which was executed on that date, therefore, the

cause of action and the claim was held to be different. Perusal of the order, therefore, shows that prima facie the appellate Court found it that the

claim and the cause of action in respect of the suit property by the plaintiff in the subsequent suit was different. Considering the nature of pleading,

whether the suit cannot be adjudicated only on the mere say of the appellants herein that the rights in respect of the property have already been

adjudicated. Since in the subsequent suit only a part of land of 2 acres have been claimed. It is a mixed question of law and fact. Unless the facts are

corroborated and placed before the Court no finding can be given and it can only be adjudicated during the time of evidence. No presumption can be

prima facie be drawn in respect of the suit property that in the earlier suit the rights have been adjudicated. Therefore, I do not find any merit in the

appeal.

Accordingly, the appeal is dismissed.