The suit of the petitioners for partition of their property was dismissed for being barred by Rule 11 of Order VII as res-judicata and thereby their plaint was rejected. The earlier suit for which the............

 The suit of the petitioners for partition of their property was dismissed for being barred by Rule 11 of Order VII as res-judicata and thereby their plaint was rejected. The earlier suit for which the present suit for partition has been dismissed/rejected was for a declaration under section 42 of the Specific Relief Act, 1877 and that admittedly was not decided on merits but that would not bar the subsequent suit for partition. The right of partition of one’s property is an independent right and cannot be considered as a subsequent suit being barred by the principal of res-judicata. The learned counsel for the respondents tried to make out a case by arguing that the suit of the petitioners is also barred by Order II Rule 2 of CPC and they were required to ask for partition of their share in the suit property in the earlier round of litigation. We are afraid, the argument of learned counsel for the respondents appears to be based on some misconception of law. The right of partition is an independent right and cannot be connected with any previous suit even with regard to the same property and cannot be declared as barred by Rule 11 of Order VII CPC.

Suit for Possession/Through Partition
C.P.L.A.159-P/2014
Zakirullah (decd.) thr. LRs & others v. Muhammad Rehman & others
Mr. Justice Mazhar Alam Khan Miankhel
21-11-2024
18-12-2024
2024 SCP 407