RANCHI, India, May 19 -- Jharkhand High Court issued the following order on April 21:

1. Learned counsel for the petitioners submits that Partition Suit No. 10 of 2000 has been filed praying therein for their right, title and possession over the suit land i.e. 21 decimals of land of plot no.25 of Village Nimiyadih on the basis of sale deed no.3719 dated 15.07.1999.

2. The defendants who are respondent herein has appeared in the partition suit no.10 of 2000 and filed written statement and contested the suit which was decreed in favour of the plaintiff by judgment dated 02.12.2005 and decree dated 17.01.2006. He submits that thereafter the defendant/respondent herein has preferred the partition appeal being Partition Appeal No.1 of 2006 which was dismissed by the judgment dated 24.7.2007 and decree dated 28.7.2007 and the order passed by the learned trial court has been affirmed.

3. The Second Appeal was preferred being S.A. No.1 of 2006 which has been dismissed. He submits that for the same cause of action another suit being Original Suit No.312 of 2020 was instituted in which the petitioner herein filed the written statement taking the ground that barred by law of limitation and adverse possession as well as the res-judicata also. He submits that petition dated 8.6.2021 has been filed under section 11 of the CPC which was rejected by the learned court. According to him, the learned court has erred in passing the said order holding that resjudicata will not apply. On this ground he submits that the impugned order may kindly be set aside.

4. The Court on perusal of the impugned order dated 07.02.2023 and that the learned court has considered the argument of both the sides and came to the conclusion that if the decree in the earlier suit was obtained by way of playing fraud upon the court, then, resjudicata will not apply and on the issue in question, the learned court has relied on the judgment of Hon'ble Supreme Court in the case of S.P. Changalvarya Naidu (Dead) by Lrs. V. Jagannath by Lrs and others 1994 1 SCC 1 and in the case of T. Vijendradas and Another v. M. Subramanian and Others, 2007 (12) SCALE 1.

5. It has been further considered that the plaintiff evidence has already been started and the learned court has decided the same after providing opportunity to both the sides.

4. Considering that earlier the suit has been travelled upto the High Court and the Second Appeal has also been dismissed and the order of the learned first court has been upheld and in that view of the matter, issue notice upon the Opposite Party Nos.1 to 7 by registered post with A/d as well as under ordinary process for which requisites etc must be filed within two weeks.

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