Hi every body,
My uncle got his share property 35 year back then he got Gram Panchayat (Municipal) permission and constructed shops in the premises and he left remaining as open land. He has been regularly paying municipal tax since last 20 years.
Suit Schedule property is 3 acres. This property is self acquired by my uncle’s father.
Parties & Family members: 3 sons and 2 daughters. My uncle’s father expired in 1998. in this suit father is called as Z
My uncle’s father has three sons (A Elder Son, B Second Son, C Younger Son) and two (X Elder Daughter and Y Younger Daughter) daughters. They got married long back and share properties as per his father distribution on the basis of land worth. This total schedule property is 3 acres out of this my uncle got 1.5 open land for his share. The property was partitioned in 1975 on a ordinary partition document and it was kept with my uncle’s father. This property was partitioned between three sons (A,B and C), C is my uncle who constructed shops in 1/5th of his share property with municipal permission in 1980. and second one B also constructed shops in his share property with municipal permission in 1992. A kept his share as open without constructing anything in his share. And my uncle’s father gifted 400 yards open land to his younger daughter (Y) for house construction. This was also got registered with gift deed and in this property my uncle's father showed my uncle name as boundry (west and Sout side), then she constructed house with municipal permission in 1982. Until 1992 everything went fine all brothers and sisters are fine, but suddenly there was a dispute between C and (A and B) on share partition, A and B brothers alleged that they got less share then C, so they pressured his father (Z) for re partition of schedule property, but my uncle refused for this proposal and approached junior civil court in 1993 for permanent injunction. Based on the argument the court had granted permanent injunction decree in 1998. Parties in this case are: Plaintiff (C) and Dependents (Z, A, B, X and Y). Since court granted permanent injunction decree, my uncle has been enjoying the his property without disturbance and getting monthly rent on his shops. My uncle did not have his copy of partition document that prepared by his father in 1975 and this was kept with my uncle's father.
In 2004 second brother (B) of my uncle went to Junior civil court for Partition of this schedule property among brothers & sisters equally as there is no document proof that this property was already partitioned. In this suit case parties: Plaintiff (B) and Dependents (Z expired, A, C, X and Y) are same as above in the permanent injunction and schedule suit property is same. In this Partition case my uncle argued that this property was already shared among three brothers (A, B and C) and 400 yards open land was gifted to younger sister and submitted all relevant documents. A Dependent of this suit case argued that he got this entire suit property (3 acres) from his father with a will prepared by his father in favour of him in 1998. Even till today A has not approached any court or register office for probate or registration of the will. The partition case judgment has come in 2011. This partition Case was dismissed commenting that C has not showed enough documents to prove that he got his share in partition. Even though many documents like municipal permission and tax receipts, Y registration document submitted along with permanent injunction order copy, judge expressed view that "it is believed that there was not partition among brothers and C got his share and it is believed that there was a will done infavour of A ' . The Hon’ble Judge even did not comment on Res Judicata.
Could you please let me know, why Res Judicata would not be applicable in this case?
Is Res Judicata applicable to will deed prepared by my uncle’s father on suit property?
Thanks & Regards,