Appeal against dismissal of a partition suit where plaintiffs claimed 1/5th shares after two co-owners died following a prior decree declaring 1/7th shares. Held that purchasers from a party to the earlier decree are bound by res judicata; the suit was remanded for fresh adjudication on merits.
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Form No. J(2)
In the High Court at Calcutta Civil Appellate Jurisdiction Appellate Side
Present: The Hon’be Justice Sabyasachi Bhattacharyya
And
The Hon’ble Justice Supratim Bhattacharya
F.A. 331 of 2025 IA No: CAN 1 of 2025
Dilip Tewari and others Vs.
Lab Ghosh and others
| For the appellants | : | Mr. Sagnik Chatterjee Mr. Sayan Mukherjee |
|---|---|---|
| For the respondent nos. 1 to 13 | : | Mr. Prasanta Bishal Mr. Md. Jannat Ul Firdous |
| For the respondent nos. 14 to 19 | : | Mr. Dyutiman Banerjee |
| Heard on | : | 20.01.2026 & 16.02.2026 |
| Judgment on | : | 16.02.2026 |
Sabyasachi Bhattacharyya, J.:-
1. Affidavit-of-service filed in court today be kept on record.
2. Substantial service has been effected on all the respondents.
3. In fact, respondent nos.1 to 13 and respondent nos.14 to 19 are represented by their respective counsel.
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4. Since respondent no. 20, the State of West Bengal, was merely a proper (as opposed to necessary) party to the suit, we dispense with service of the appeal on the said respondent.
5. In view of the short conspectus of the appeal, we take up the same for hearing along with the injunction application.
6. As the court has not directed affidavits to be filed, it is deemed that none of the allegations made in the injunction application are admitted by the respondents.
7. The present appeal arises out of the dismissal of a partition suit filed by the plaintiffs/appellants.
8. The plaintiffs’ case was based on their title.
9. A previous suit for declaration of title and consequential reliefs, filed between the original co-owners of the subject property, culminated in a decree whereby the shares of the respective coowners were declared.
10. As per the said decree, the shares of each of the seven cosharers were declared to be 1/7th of the suit property.
11. As per the plaintiffs/appellants, which stand is agreed upon by respondent nos. 14 to 19, subsequent to the passing of the decree in the previous suit, two of the co-owners died.
12. Therefore, the shares of the co-owners were automatically converted to 1/5th each.
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13. The respondent nos. 1 to 13, on the other hand, claim to have purchased a share in the property from one of the original cosharers.
14. Learned counsel for the respondent nos. 1 to 13 contends that no notice/summons of the earlier suit was served on their predecessor-in-interest.
15. However, we are unable to accept such contention at the behest of the respondent nos. 1 to 13, who, being subsequent purchasers from one of the parties to the earlier partition suit, cannot claim a right greater than their vendor.
16. Since the vendor of the respondent nos. 1 to 13, who was one of the co-sharers and a party to the earlier partition suit, did not raise the issue either by way of a challenge in appeal or an application under Order IX Rule 13 of the Code of Civil Procedure to the effect that no summons of the earlier suit was served on him, the present respondent nos. 1 to 13, claiming through such co-owner, cannot reopen the said issue.
17. By operation of the principle of res judicata , the vendor of the respondent nos. 1 to 13 as well as the respondent nos. 1 to 13 are bound by the earlier decree and the declaration of shares of parties therein.
18. The learned Trial Judge, by the impugned judgment and decree, dismissed the suit merely on the finding that the claim of the
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plaintiffs was apparently contradictory, inasmuch as they had obtained a previous decree regarding 1/7th share each but now claim 1/5th share each in the subject property which, in the opinion of the learned Trial Judge, was “confusing” and “not clear”.
19. However, we do not find any confusion in that regard, since the specific plaint case in the present suit is that due to the subsequent demise of two of the original co-owners, whose 1/7th shares were declared in the partition suit, the calculation of shares for each of the co-owners was converted to 1/5th each.
20. Since the evidence-on-record before the learned Trial Judge was otherwise sufficient, we do not find any reason for the learned Trial Judge not to have adjudicated the suit on merits.
21. Accordingly, FA 331 of 2025 is allowed on contest, thereby setting aside the impugned judgment and decree dated January 7, 2025 passed by the learned Civil Judge, Senior Division at Kandi, District- Murshidabad in Partition Suit No. 97 of 2009 and remanding the matter to the said court for a fresh adjudication of the suit on merits on the basis of the materials already on record, in the light of the above observations.
22. In view of the long pendency of the suit, we request the learned Trial Judge to dispose of the same as expeditiously as possible,
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positively within eight months from the date of communication of this order to the said court.
23. CAN 1 of 2025 is accordingly disposed of as well.
24. At this juncture, learned counsel for the appellants seeks an injunction in terms of the order of injunction which had been passed by the learned Trial Judge prior to the impugned decree being passed.
25. Since, after disposal of the appeal, this court has been rendered functus officio , we choose not to grant such relief at this stage.
26. However, liberty is given to the parties to make prayers for appropriate interim orders before the learned Trial Judge upon remand.
27. There will be no order as to costs.
28. Urgent photostat copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Supratim Bhattacharya, J.)
AD-33 AK
2 issues framed by the court
Whether subsequent purchasers from a co-sharer bound by an earlier decree declaring shares can challenge non-service of summons in that suit.
Whether the trial court erred in dismissing the partition suit as confusing without adjudicating on merits.
1 provisions across 1 enactments
Dilip Tewari and others
Lab Ghosh and others
Sabyasachi Bhattacharyya
Supratim Bhattacharya
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
