IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2255 of 2005 SHRI RAMANAND SHARMA @ RAMANAND SINGH SON OF LATE MUNSHI SHARMA, RESIDENT OF VILLAGE- SIKANDARPUR, P.S. AND P.O. BIHTA, DISTRICT-PATNA ---- PLAINTIFF- PETITIONER. Versus 1. SHRI SURENDRA SINGH (EXPUNGED) 1.(A) DINESH SHARMA 1. (B) AKHILESH SHARMA BOTH SONS OF LATE SURENDRA SINGH. 1(C) SRIMATI RENU DEVI, DAUGHTER OF LATE SURENDRA SINGH. 2. SHRI RAMAYAN SINGH. 3. HALDHAR SINGH. 4. JITENDRA SINGH. 5. ASHOK KUMAR. 6. SANJAY KUMAR SINGH, ALL SONS OF LATE MUNDRIKA SINGH. 7. SUSHILA DEVI WIFE OF SLATE JOGENDRA SINGH. 8. SANJIV KUMAR SON OF LATE JOGENDRA SINGH, ALL RESIDENTS OF VILLAGE SIKANDARPUR, P.S. BIHTA, P.O. BIHTA, DISTRICT PATNA --- DEFENDANTS—OPPOSITE PARTIES. ----------- 9/ 05-05-2011 Heard. 2. The petitioner, being aggrieved by an order dated 29.08.2005 passed in Title Suit No. 37 of 1999 by learned Munsif, Danapur, dismissing the aforesaid suit of the plaintiff- petitioner as barred by the principles of res judicata, has filed the present civil revision application before this Court. 3. The facts are not in much controversy. The petitioner as also the opposite parties herein are descendants of their common ancestor namely late Doma Singh. Title Suit no. 174 of 1970 was brought by the defendants 1st set of the present suit, respondents herein, 2 for partition of the suit property. In the aforesaid Title (partition) suit, the present plaintiff was defendant 2nd set. The suit lands, which are subject matter of controversy in the present title suit, were the subject matter of controversy in the previous Title Suit No.174 of 1970 also . The aforesaid title suit ended in a compromise, on the basis of a compromise petition filed by the parties. As per terms of compromise, the present plaintiff was allotted the lands mentioned in schedule 1 of the compromise decree, whereas the present defendants, who were plaintiffs in the previous suit, were allotted lands covered by schedule-4 of the compromise decree. 4. Learned trial court, on being satisfied about bone fide of the compromise, having been arrived at amongst the parties, disposed of the aforesaid Title Suit No. 174 of 1970 by a judgment dated 08.12.1973 and, accordingly, a decree was prepared on 07.02.1974. Parties are said to have come in possession over their allotted takhta as per the decree prepared in the previous title suit. Neither the plaintiff nor the defendants of the previous suit questioned the validity or otherwise of aforesaid judgment dated 08.12.1973 and decree dated 07.02.1974 passed in aforesaid Title Suit No. 174 of 1970. However, it appears that almost after 25 years, the present plaintiff, who was admittedly defendant 2nd party in the previous suit, has brought the present Title Suit No. 37 of 1999 seeking a 3 decree of partition for the suit properties. On summons, the defendants of the present suit, appeared and filed a petition on 05.01.2000 with a prayer that the present suit is not maintainable and is barred by the principles of res judicata. The plaintiff filed his rejoinder on 15.02.2000. After hearing the parties, the learned trial court by the impugned order dated 29.08.2005 has dismissed the suit, being barred by the principles of res judicata. 5. Learned counsel for the petitioner has assailed the impugned order primarily on the ground that in the previous suit, the petitioner was minor and was under the guardianship of his natural grand father Kapildeo Singh, as Munshi Sharma, father of the petitioner was murdered prior to the filing of the suit. It is contended that Kapildeo Singh, grand father of the petitioner, had grown old and was under depression due to murder of his son. Therefore, according to him, the compromise decree was not a valid one. He further submits that despite aforesaid judgment and decree passed in Title Suit No. 174 of 1970 and allotment of lands to the respective parties by allotting separate Takhta, the parties have not come in possession over the allotted portion of lands. Therefore, as per his submission, that judgment and decree having not been implemented, the petitioner was fully justified in filing the present suit seeking a decree of partition. He has placed reliance upon certain judgments primarily on issues 4 regarding Order 7 Rule 11 (d) or Order 23 Rule 3-A of the Code of Civil Procedure. 6. Learned counsel appearing on behalf of the opposite parties, has supported the impugned order, and submits that in the previous suit as also in the present suit, the properties for partition are/were common and same. The parties in the present suit were the parties in the previous suit also and, therefore, according to him, learned Munsif has rightly dismissed the suit, as barred by the principles of res judicata. 7. After having heard the parties, this Court finds that issues regarding application of Order 7 Rule 11(d) or Order 23 Rule 3-A of the Code of Civil Procedure (In short C. P. C. ) were not the issues raised before the learned trial court. The plaint of the plaintiff- petitioner has not been rejected in terms of Order 7 Rule 11(d) C.P. C. The suit of the plaintiff-petitioner has also not held to be not maintainable in terms of Order 23 Rule 3-A of the C.P.C. Learned trial court has dismissed the suit of the plaintiff- petitioner, as barred by the principles of res judicata. The parties as also the suit properties, in Title Suit No. 174 of 1970 as also in present Title Suit No. 37 of 1999, being the same and common, the learned trial court has rightly held that the present suit is barred by the principles of res judicata. This Court does not find any legal infirmity or material irregularity in the order 5 impugned. Consequently, the present civil revision application has to fail. It is, accordingly, dismissed with costs, assessed to be Rs. 5,000/- (Rs. Five thousand). BTiwary/ ( Birendra Prasad Verma, J.)