SHREE CHANDRASHEKAR,J. - (1.) Aggrieved of order dated 17.02.2016 by which the application seeking dismissal of Partition Suit No. 188 of 2008 on a plea of resjudicata has been dismissed, the petitioners have approached this Court.
(2.) Title Partition Suit No. 1 of 1955 was instituted by Khubi Choudhary, Kailu Choudhary and others. In the suit, Lachho Choudhary and others were defendants. The suit was instituted for preliminary decree for partition of the suit properties claiming ? ..?th share for the plaintiffs. In the suit the plaintiffs have claimed that both plaintiffs and defendant No. 1 are brothers, defendant No. 1 being the eldest one. They claimed that alongwith the plaintiffs, defendant No. 1 constituted a joint family of which defendant No. 1 was Karta and though the parties had separated still the properties remained joint. The defendants contested the suit disputing the claim of joint-ness of the suit properties. The suit was partly decreed vide judgment and order dated 23.04.1959. Claim in respect of item No. 1 in the suit schedule properties was decreed, however, insofar as, item nos. 2 and 3 in schedule 'B' properties are concerned, it was dismissed. Against the order passed in Partition Suit No. 1 of 1955. Khubi Choudhary and others preferred Title Appeal No. 49/4 of 1959/1963 which stood dismissed on 02.03.1964. It appears that Title Partition Suit No. 188 of 2008 has been instituted by Narayan Choudhary for his share in schedule 'D' property. In Partition Suit No. 188 of 2008, Baijnath Choudhary is defendant No. 1. In the pending suit an application dated 04.11.2010 was filed by the defendant nos.1 and 2 pleading that Partition Suit No. 188 of 2008 is liable to be dismissed on the ground of res-judicata.
(3.) The learned counsel for the petitioners submits that finality of Partition Suit No. 1 of 1955 would constitute a bar to institution of Partition Suit No. 188 of 2008, for the issue involved in Partition Suit No. 188 of 2008 has been conclusively adjudicated in Partition Suit No. 1 of 1955.;