AIR 1989 SUPREME COURT 879 ::(1989) 1 HinduLR 345 ::1989 SCC (Supp) 2 162 ::(1989) 1 JT 375 (SC) ::1989 (1) JT 375

Supreme Court Of India

(From : Bombay)

Hon'ble Judge(s): K. N. Singh, Lalit Mohan Sharma , JJ

(A) Civil P.C. (5 of 1908) , S.11— Res judicata - Earlier suit between parties claiming title to certain lands and not involving other properties - Claim in alternative in earlier suit for share of properties not made on basis of right of coparcener or co-sharer - No finding by High Court on question of earlier partition between parties - Subsequent suit for partition between parties - Not barred by res judicata. Res judicata - Applicability. Where the earlier suit had been filed claiming title to certain items of property @page-SC880 which were the subject-matter of a deed executed in favor of defendant (plaintiff in the subsequent suit) and the suit was not concerned with other properties and the claim of 2/3 share in the alternative was made in that suit not on the basis of plaintiff defendant in that suit being a coparcener or co-sharer but on the assumption that he had acquired title under the impugned deed and there was no finding on the question of earlier partition effected between the parties, the subsequent suit for partition between the parties would not be barred by res judicata.(Para 6) (B) Hindu Law - Joint family property - Partition - Presumption as to jointness - Rebuttal of - Held on consideration of evidence the presump....