Shivdatta Patel vs Shivnath Patel
2023 Latest Caselaw 2755 MP

1                                                   M.A. No. 5072 of 2009

        IN THE HIGH COURT OF MADHYA PRADESH
                     AT JABALPUR
                           BEFORE
         HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                 ON THE 15th OF FEBRUARY, 2023

          MISCELLANEOUS APPEAL No.5072 of 2009

     Between:-
1.   SHIVDATTA PATEL S/O LATE RAM KHILAWAN,
     AGED ABOUT 57 YEARS, R/O VILL.TITALI,
     P.S.AMILIYA,TAH. SIHAWAL

2.   RAMDATTA PATEL S/O KHILAWAN PATEL,
     AGED ABOUT 53 YEARS, TITALI, PS. AMILIYA,
     SIHAWAL, DISTT. SIDHI

3.   RAM NIWAS S/O LATE RAM KHILAWAN
     PATEL, AGED ABOUT 47 YEARS, TITALI, PS.
     AMILIYA, SIHAWAL, DISTT. SIDHI

4.   INDAL PATEL S/O LATE RAMKHILAWAN
     PATEL, AGED ABOUT 44 YEARS, TITALI, PS.
     AMILIYA, SIHAWAL, DISTT. SIDHI

5.   MST. RAJMANTI W/O RAMKHILAWAN PATEL,
     AGED ABOUT 77 YEARS, TITALI, PS. AMILIYA,
     SIHAWAL, DISTT. SIDHI

6.   SMT. NANKI PATEL W/O RAMAWATAR PATEL,
     AGED ABOUT 75 YEARS, TITALI, PS. AMILIYA,
     SIHAWAL, DISTT. SIDHI

7.   SMT. BUTI D/O LATE RAMAWATAR PATEL,
     AGED ABOUT 52 YEARS, TITALI, PS. AMILIYA,
     SIHAWAL, DISTT. SIDHI

8.   RAMBHUWAN PATEL S/O LATE UDYABHAN
     PATEL, AGED ABOUT 37 YEARS, CHITBARIA
     NO.2 TEH. SHIHAWAL, DISTT. SIDHI

9.   CHANDRA   BAHOR    PATEL  S/O  LATE
     UDAYBHAN PATEL, AGED ABOUT 35 YEARS,
     CHITBARIA NO.2 TEH. SHIHAWAL, DISTT.
     SIDHI
 2                                                             M.A. No. 5072 of 2009


10.   SMT. SATI KUMARI PATEL D/O UDAYBHAN
      PATEL, AGED ABOUT 42 YEARS, CHITBARIA
      NO.2 TEH. SHIHAWAL, DISTT. SIDHI

11.   MST. SHATIYA PATEL D/O UDAYBHAN PATEL,
      AGED ABOUT 58 YEARS, CHITBARIA NO.2
      TEH. SHIHAWAL, DISTT. SIDHI

      ALL   R./O  VILLAGE-CHARHET,     TAH.-
      JAYSINGH NAGAR, DISTRICT-SHAHDOL (M.P.)
                                                    .....APPELLANTS
      (SHRI AWADHESH GUPTA, ADVOCATE)


      AND
1.    SHIVNATH PATEL S/O SHRI BALDEO PATEL,
      AGED ABOUT 62 YEARS, OCCUPATION:
      AGRICULTURIST         R/O  VILL.TITALI,
      P.S.AMILIYA, TAH. SHIHAWAL

2.    MST. ITWARIYA PATEL W/O HAR PRASAD
      PATEL, AGED ABOUT 73 YEARS, TITALI, PS.
      AMILIYA, SIHAWAL, DISTT. SIDHI

3.    DISTRICT COLLECTOR THE            STATE    OF
      MADHYA PRADESH SIDHI

                                                  .....RESPONDENTS

      (BY SHRI K.L. PANDEY, ADVOCATE WITH SHRI
      PRAKASH SINGH CHOUHAN, ADVOCATE FOR
      RESPONDENT 1)


...................................................................................................................................................................

      This appeal coming on for orders/admission this day, Court passed
the following:


                               ORDER

This miscellaneous appeal has been preferred by the defendants challenging the judgment and decree dtd. 20.11.2009 passed by 1st

Additional District Judge, Sidhi in Regular Civil appeal No. 17-A/2009 whereby reversing the judgment & decree dtd. 28.08.2008 passed by 3 rd Civil Judge Class II, Sidhi in Civil Suit No. 76-A/2008, matter has been remanded back to learned trial Court for decision of the civil suit afresh.

2. Learned counsel appearing for the appellants/defendants submits that the plaintiff/respondent 1 had previously instituted a civil suit no. 1- A/1978 for declaration of title, which was decreed on 23.10.1978 and upon filing of civil appeal No. 53-A/1978, the matter was remanded for fresh adjudication but upon remand, the civil suit (new no. 54-A/1984) was dismissed as abated on 12.04.1984, which attained finality.

3. Learned counsel further submits that thereafter the plaintiff instituted fresh/instant suit in the year 1990 for declaration of title and partition in which the defendants took plea of res-judicata, thereupon issue No. 6 and 8 were framed and decided vide judgment & decree dtd. 28.08.2008, whereby second/later civil suit was dismissed as barred by res-judicata but the judgment and decree dtd. 28.08.2008 passed by learned trial Court has been reversed illegally by first appellate Court vide impugned final order dtd. 20.11.2009, whereby the matter has been remanded back to learned trial Court for decision afresh.

4. Learned counsel submits that because the previous suit was dismissed as abated, therefore, learned trial Court had rightly dismissed the suit as barred by res-judicata and learned first appellate Court has erred in remanding the matter back and he prays for allowing the misc. appeal.

5. Learned counsel appearing for the respondent 1 submits that because previous suit was not decided on merits, therefore, learned trial Court had erred in dismissing the suit as barred by res-judicata. He

submits that only a decision on an issue operates res-judicata and in the previous suit there being no decision on any of the issues, therefore, previous order dtd. 12.04.1984 dismissing the suit as abated, does not operate as res-judicata to the present/later suit and the learned first appellate Court has rightly remanded the matter with the direction to learned trial Court to decide the civil suit afresh on merits and submits that there is no illegality in the impugned final order of remand.

6. Heard learned counsel for the parties and perused the record.

7. From bare perusal of the final order dtd 12.04.1984 (Ex.D/2), it is clear that the previous suit was dismissed as having abated and there was no decision on merits in the previous civil suit.

8. In the second/later civil suit filed by the respondent, the defendants took plea of res-judicata, thereupon the issue No. 6 and 8 were framed, which were decided by learned trial Court against the plaintiff and without deciding other issues, the suit was dismissed only on the ground of res-judicata. In fact there was no decision in the previous suit on merits, therefore, learned trial Court had erred in deciding the issue No. 6 and 8 against the plaintiff and in favour of the defendants.

9. After taking into consideration the entire material available on record and in the light of legal position, learned first appellate Court has remanded the matter back holding that the order passed on 12.04.1984 in previous suit no. 54-A/1984 does not operate res-judicata to the second/later/instant suit.

10. In my considered opinion, the abatement of a suit cannot operate as res-judicata, although a subsequent suit on the same cause of action may be barred. However, the present suit, prima facie does not appear to be on same cause of auction, as has also been held by first appellate Court.

11. However, in the case of Asha Sharma and others Vs. Amar Nath and others AIR 2003 HP 32 coordinate bench of Himachal Pradesh High Court has held as under :

"26. I have already observed that cause of action is continuous in partition cases which subsists so long the property is held jointly. In other words, the joint owner can file a suit for partition until partition is actually effected irrespective of the fact whether earlier suits for such partition were dismissed in default or an earlier decree for partition was not acted upon."

12. In view of the aforesaid discussion, in my considered opinion, there is no illegality in the impugned final order of remand. Resultantly, this miscellaneous appeal fails and is hereby dismissed. Learned trial Court is directed to proceed with the case in accordance with the law.

13. Interim application(s), if any, shall stand dismissed.

14. Registry is directed to send back the record of the Courts below immediately.

(DWARKA DHISH BANSAL) JUDGE

Pallavi Digitally signed by KUMARI PALLAVI SINHA Date: 2023.02.20 12:40:26 +05'30'