2010 (9) TMI 180

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....04.2009. It is alleged that Clerk of the counsel put the paper book in some other brief which was fixed for hearing in the month of May, 2009. It is also alleged that the paper book was traced on 22.12.2009 and thereupon the appeal was re-filed. Learned counsel for the applicant-appellants contended that there is sufficient ground for condonation of delay in re-filing the appeal. The contention cannot be accepted. When the other case, in which paper book of this case had allegedly been placed, was fixed in May, 2009, it cannot be said that this paper book could not be traced in May, 2009, when the said other case was fixed for hearing. On the other hand, it appears that the appellants chose to re-file the appeal on 23.12.2009 and, theref....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e said Will. The said suit was decreed partly vide judgment and decree dated 30.04.1970 holding the plaintiffs to be entitled 2/7th share of the suit land, the remaining 5/7th share being of the four daughters and widow of Bishan Singh. However, the Custom Act was repealed and accordingly appeal against judgment and decree dated 30.04.1970 of the trial Court was allowed by District Judge, Ropar vide judgment and decree dated 24.08.1973 and the aforesaid earlier suit filed by the plaintiffs was dismissed. The plaintiffs now alleged that even if Will in favour of Nand Kaur is held to be valid qua 1/3rd share of Bishan Singh, even then plaintiffs have 2/3rd share in the suit land.  Accordingly, the plaintiffs sought possession of 2/3rd sh....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ically barred by res judicata. Learned counsel for the appellant contended that in the earlier suit, challenge to the Will was under the Custom Act and not on the basis of Joint Hindu Family Property. However, the plaintiffs could have raised all the pleas in the earlier suit including the plea of the suit land being Joint Hindu Family Property. If the plaintiffs did not take this plea in the earlier suit, nevertheless, the instant suit would stand barred by principle of constructive res judicata. The plaintiffs' claim in the earlier suit was negatived in the year 1973. The instant suit was filed on 19.08.1997 i.e after 24 years. The defendants are in possession of the suit land since the year 1965. Consequently, the suit is also hopeles....