HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: W HON’BLE MR. T.P. SHARMA & HON’BLE MR. R. L. JHANWAR, JJ. First Aggeal [Ml No. 21 (2007 Neel Kanth Jaiswal S/o Shri Ramayan Prasad Jaiswal Aged 29 Years, Resident of ‘3/11, North Vasundhara Nagar, Bhjlai-3 Tehsil 8r, District Durg (CG). APPELLANT 1Non-A9Qlieantj VERSUS RESPONDENT £A221icant) Smt. Manju lata Jaiswal W/o Neel Kanth Jaiswal Aged about 25 years, Resident of: Shubh kamna ~Chauk, Padimar Bhadara para Balco Nagar Korba, District :Korba(CG). FIRST APPEAL UNDER SECTION 19 [1) OF THE FAMILY COURT’S ACT. I Present:— Shn‘ Uttam Pandey, Advocate for the appellant. Shn‘ Pallav Mishra, Advocate for the respondent. ORAL-JUDGEMENT (Passed on 12/07/2010) The following judggent of the Court was gassed by T.P. Shanna, J:- 1. Challenge in this appeal 1's to the judgment 86 decree dated 22/2/2007 passed by Judge, Family Court, Korba in Misc; I x Civil Suit No. 12/2006 med fofr mum of sm'dhan on behalf of the mspondent. Judgment and decree has been impugned on the ground that present suit was hit by the Principle of res judicata but Court below has not considered and thereby committed an illegality. Brief case necessaxy for disposal of this appeal is as per pleadings of the parties specially as per pleading of the appellant present respondent had filed one suit for restitution of conjugal rights ‘in 'altErnate for dissolution of‘marriage by a decree of divorce before the Principal Judge, Family Court Durg in Civil Suit No. 431-A/ 2005 where respondent has also claimed return of Stridhan in terms of Section 27 of the Hindu Marriage Act, 1955 (in short ‘the Act’), While dismissing the application hled on behalf of the respondent, Principal Judge, Family Court Durg has directed to return one Bed and Almirah to the respondent. Therefore, in the light of previous suit for return of Stridhan the present application for return of Stridhan is not maintainable in accordance with Section 1 l of the Civil Procedure Code, 1908. Respondent has denied the aforesaid allegations and While claimingistridhan she has specifically pleaded that ‘Stn'dhan are in possession of appellant which she is enn'tled to receive back. After affording an opportunity of hearing to the parties learned Judge, Family Court Durg has allowed the claim in part and decreed the suit to the tune of Rs. 43,890] — out of the claim of Rs. 2,43,178/-, Shri Ut’tam Pandey, Advocate for the appellant and Shn' Pallav Mishra, Advocate for the respondent are heard. Lamned counsel for the apyellant vehementiy argued that in the light of decision in fust suit relating to claim of Stridhan along with other claims present suit is not maintainable in accordance with Section ll of the Civil Procedure Code, 1908. Learned counsel for the appellant further argued. that Court below has wrongly arrived at a finding that no opportunity has been provided to the parties by the Court situated at Durg While deciding the Civil Suit No. 431-A/ 2GO5. On the other hand, learned counsel for the respondent opposed the appeal and submits that claim for return of ‘Stridhan is not maintainable in terms of Section 27 of the Hindu Marriage Act, I955, a separate suit is required in terms of explanation ( C) of Section 7 (1) of the Family Courts Act, 1984. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. In the present case present respondent has claimed the return of Stridhan to the tune of Rs. 2,48,178l- but respondent has adduced the evidence relating to the property to the tune of Rs. 43,890] — for which decree has been granted by the Court below, we do not fmd any iilegality in such finding. As regard the question of Principle of res judicata is concerned present appellant has alleged aforesaid pleadings in his 12. written statementlburdsn was on him to prove such issues in the light of pleadings of‘the appellant/ defendant. L€amcd Judge, Family Court, Korba has framed the issue No. 2A and B relating to the maintainability of the petition in the light of alleged previous decision. In order to prove the aforesaid issues appellant was required to file a copy of plaint, Written statement, issues and evidence if necessa1y of the previous suit but reasons best known to the appellant, the appellant has not filed any such document for proving, aforesaid issues, even otherwise in order to attract the provisions of Section 11 of the Civil Procedure Code, 1908 i.e. principle of res judicata the Court is xequired to examine that whether the issue of previous suit is directly and substantially issue in the present ease. Section 11 of the Civil Procedure Code, 1908 reads as follows:- “11. Resjudicata- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in aformer suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finatly decided by such Court. Explanation I. ———————— Explanation H. -------- Explanation 111. --------- Explanation IV. ------_. Eygalanation V. -------- Ewfauation VI. ------- Explanmion VII. -------- Explanation VIII. ---------" 14. The previous suit No. 431—A/ 2005 decided between the parties by the Pn'ncipal Judga, Family Court, Dung was for disSolun'on of marriage by a decree of divorce in which the parties were entitled for return of some property in terms of Section 27 of the Hindu Marriage Act, 1955. The provisions of Section 27 of the Hindu Marriage Act, 1955 reads as fonowsz— “27. Disposal of property; In any prooeedz'ng under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, a1 or about the time of marriage, which may belong jointly 10 both the husband and the wife. ‘9 15. The scope of Section 27 of the Hindu Marriage Act,1955 is limited and only order relating to property presented at or about the time of marriage may be made by the Court dealing with the issue tribal under the Hindu Marriage Act, 1955 belonging jointly to both the husband and the wife. The claim of the respondent in the present suit shows that she has med the suit for recovery of Stridhan belonging to her and owned by her‘ Provisions of Section 27 of the Hindu Marriage Act, 1955 does not provide the remedy for recovery of property other than the property presented at or about time of marriage belonging to husband and wife therefore, even otherwise independent suit or claim for recovery of Siridhan was not competent in the divorce proceedings. By ming present suit respondent has claimed the return of Stridhan which is maintainable in accordance with Clause (c ) of sxplanation 2 of Clause 1 of Section 7 of the Family Court’s Act, 1984 which is reads as follows:— “Section 7m (a) (b) u Explanaaon- The suits and proceedings referred to in this sub-section are suits and proceedings of thefollowing nature, namely:- ‘ (a) (b) ---------- (c) a suit or proceeding beiween the parties to a mm'age with respect to the property of the parties or of either of them; (a) ------- ['T (g) --------" In the light of aforesaid provisions the Court dealing case under Hindu Marxiage Act, 1955 was not competent to decide the issue relating to return of Stridhan in terms of Section 27 of the Hindu Marriage Act, 1955. For the foregoing reason, we are of the View that issue relating to return of Stridhan has not been decided by a competent Court prior to filing of the present suit. Issue in the matter before both the Courts were directly and substantially not one and same between the parties. Appellant has not discharged his burden to proof the aforesaid facts by adducing the with the 16. 17. L4 i 19, evidence therefore, Court below has rightly decided the issues No. 2A and B against the appellant and had decreed the suit. Consequently, we do not find any merits in the appeal. Appeal is liable to be dismissed and is hereby dismissed. 18. Parties shall bear their own costs. No order as to costs. Sd/- R.L. Jhanwar > i” Judge Sd/ V T.P.Sharma ‘ \ JUDGE Judge