Dismissed

Smt. Pushpa Rani v. Shiv Kumar Tyagi and 5 Others

Allahabad HC28 Jan 2020SAPL/1108/2018

Case brief

AI extract

What is this about?

This Second Appeal challenges the dismissal of a civil suit for partition of ancestral properties. The appellant argued the suit was not barred by res judicata. The High Court held that abandoning a Will-based claim for a partition claim without court leave rendered the suit barred, dismissing the second appeal.

What did the court decide?

The second appeal is dismissed; no lower court order is quashed or set aside.

Smt. Pushpa Rani Vs Shiv Kumar Tyagi and 5 Others — Partition | Allahabad HC (2020)

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Court No. - 53

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Case :- SECOND APPEAL No. - 1108 of 2018

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Appellant :- Smt. Pushpa Rani Respondent :- Shiv Kumar Tyagi And 5 Others Counsel for Appellant :- Ratnesh Kumar Pandey Counsel for Respondent :- Santosh Singh

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Hon'ble Vivek Agarwal,J.

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Heard Sri Ratnesh Kumar Pandey, learned counsel for the appellant and Sri Santosh Singh, learned counsel for the respondents.

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This Second Appeal has been filed under Section 100 of Code of Civil Procedure by the appellant being aggrieved by judgment and decree passed by learned District Judge, Hapur dismissing the Civil Appeal No.92 of 2016 preferred by the plaintiff being aggrieved by judgment and order dated 06.08.2016 and its decree passed by the learned Civil Judge (Junior Division), 1st, Hapur dismissing the Original Suit No.28 of 2012 invoking the provisions contained in Order 7, Rule 11(d) C.P.C.

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Learned counsel for the appellant submits that plaintiff and the defendants are real brothers and sisters. They are claiming their share in the estate of Late Sri Mahavir Prasad Tyagi who was father of the plaintiff and the defendants. Sri Mahavir Prasad Tyagi left three properties namely one residential and two agricultural properties. It is submitted that a preliminary issue was raised by the defendants that the suit is hit by provisions contained in Section 11 C.P.C. and is being barred by the principles of res judicata inasmuch as earlier plaintiff had filed two suits namely Original Suit No.98 of 2008 and Original Suit No.163 of 2010 but both were abandoned in between and, therefore, for the same cause of action, third suit was not

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maintainable.

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It is submitted that learned Trial Court vide its order dated 13.11.2014 decided this issued in favour of the plaintiff and against the defendants holding that provisions of Section 11 C.P.C. will not be attracted in the matter inasmuch as in earlier suit, the lis between the parties was not conclusively decided. Besides this, learned Trial Court also recorded a finding that in the earlier suit, plaintiff had claimed 1/8 share in the suit property whereas now, she is claiming 1/7 share in the suit property and in the earlier property, plaintiff had not sought any relief of permanent injunction whereas in the present suit since relief of permanent injunction has been sought, provisions contained in Section 11 C.P.C. will not be attracted.

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Learned counsel for the appellant submits that once this issue was decided in favour of the plaintiff that the present suit is not barred by the provisions contained in Section 11 C.P.C., then there was no reason for rejecting the plaint on the grounds available under Order 7 Rule 11(d) C.P.C.

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Learned counsel for the respondent, Sri Tiwari, in his turn submits that though the suit was held to be maintainable and not hit by provisions contained in Section 11 C.P.C. but admittedly both the suits as were filed by the plaintiff earlier were abandoned without taking leave of the Court to institute a fresh suit, as such leave is mandated under the provisions contained in Order 23(1)(3) C.P.C.

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It is submitted that therefore the suit is not maintainable in terms of the provisions contained in Order 23(1)(4) of C.P.C. Learned Trial Court as well as the first Appellate Court have pondered over the matter from this aspect and has in addition also taken into consideration provisions contained in Section

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171 and Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950 and have held that the suit is not maintainable and has dismissed it to be barred in terms of the provisions contained in Order 7 Rule 11(d) C.P.C.

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Learned counsel for the appellant in rebuttal submits that the subject matter of the earlier suit was limited to the residential property whereas the present suit also includes the agricultural property and, therefore, even if the analogy advanced by learned Trial and accepted by learned first Appellate Court is accepted to be true and correct, then also the fact of the matter is that this suit could have been dismissed only in regard to the relief claimed in regard to the residential property and not the agricultural properties. Attention of this Court is drawn to the earlier plaint, filed a suit No.23 of 2010 which is on record as was filed by the defendants along with their written statements in which the prayer clause is only in regard to the partition of the house and the adjoining campus and claiming 1/8 share in such property besides claiming relief of possession over such residential property.

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However, a perusal of the plaint reveals that plaintiff herself has admitted that her father Late Sri Mahavir Prasad Tyagi had executed a Will on 09.12.2006 and as per the Will of her father, she has 1/7 share along with the defendant nos.1 to 7 in that suit in the house and the 'Gher Krishi Bhoomi' . In the present suit, there is no mention of the Will. Such fluctuating and contrary pleas are also not permissible though that has not been considered by the learned Trial Court and the first Appellate Court. Once, the plaintiff institutes a suit claiming her rights on the basis of a Will, then abandoning such Will as per her convenience and instituting another suit seeking partition of the property as if no Will existed is also neither permissible nor

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appreciable.

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In view of this additional fact also, there is no perversity in the impugned judgments passed by the learned Trial Court and first Appellate Court giving rise to any substantial question of law and, therefore, appeal fails and is dismissed.

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Order Date :- 28.1.2020 Ashutosh

Smt. Pushpa Rani v. Shiv Kumar Tyagi and 5 Others

Case brief

What is this about?

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Smt. Pushpa Rani v. Shiv Kumar Tyagi and 5 Others

Case brief

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