Court No. - 36
Case :- WRIT - B No. - 3187 of 2018 Petitioner :- Shyam Singh And Another Respondent :- Board Of Revenue And 13 Others Counsel for Petitioner :- Dinesh Rai,Mahesh Sharma Counsel for Respondent :- C.S.C.,Mahesh Narain Singh,Sunil Kumar Singh
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioner and Shri Diwakar Rai Sharma on behalf of the respondent Nos.7 and 8.
The present petition is directed against the judgment and order dated 25.8.2017 passed by the Second Appellate Court in Second Appeal No.27 of 2007-08 (Raham Singh & Ors. v. Shyam Singh & Ors.) which arises out of the Suit No.26 of 2003 (filed by the petitioners). The said suit was filed under Section 176 of the U.P.
Z.A. & L.R. Act for partition of certain lands stating therein that the shares of the plaintiffs/petitioners herein were to be determined.
The Sub Divisional Officer vide judgment and order dated 18.9.2006 had dismissed the suit being not maintainable recording therein that a partition suit under Section 176 of the U.P. Z.A. & L.R. Act namely Suit No.291/135 of 1970 (Randhir Singh v. Lal Singh) was decided between the co-sharers and their shares had already been determined therein.
The said order was modified by the first Appellate Court by passing a cryptic order dated 6.2.2008. There has been no consideration with regard to the determination of shares of the co-shares in the previous suit. The second Appellate Court has set aside the judgment and order dated 6.2.2008 passed by the first Appellate Court and affirmed the order dated 18.9.2006 for dismissal of the suit.
Learned counsel for the petitioners disputes the decree passed in the previous Suit No.291/135 of 1970 on the ground that the said decree was ex-parte against their father. However, the fact that the father of the petitioners was party to the said suit is not disputed. Only this much is stated that the summons were not served upon the father of the petitioners. It is also not disputed in the instant suit namely Suit No.26 of 2003 that the petitioners were claiming determination of their share inherited from their father.
Once the share of the petitioners' father had been determined in the suit for partition filed in the year 1970, it was not open for the petitioners to file another suit. The second suit filed by the petitioners for determination of their share vis-a-vis that of the co- sharers was simply barred by res-judicata. It was rightly dismissed by the Court below. The first Appellate Court had erred in upturning the order passed by the Trial Court for dismissal of the second suit. The illegality committed by the first Appellate Court has been rectified by the second Appellate Court.
For all the above noted reasons, this court does not find any justification to interfere.
Dismissed as such.
Order Date :- 28.3.2018 Jyotsana