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Can son file a fresh case

(Querist) 03 May 2020 This query is : Resolved 
Hello resp' Lawyers

Raj Kumar Makkad (Expert) 03 May 2020
Unfortunately whatever stated you in the last of your post is true vide Order 2 Rule 2 comes in the way to initiate the suit afresh. Res-judicata is a term which is a major hurdle to initiate whatever you desire.

However, if the nature of the suit is changed then definitely you may try for that. You have not mentioned about the status of your father.
Ranvijay Chaudhary (Querist) 03 May 2020
@Raj sir, father is living and can you please elaborate this " if the nature of suit is changed then definately you may try for that"... any other way sir. I am a different party , I think the previous case should not crate hurdle. please tell me some way sir..
Raj Kumar Makkad (Expert) 03 May 2020
As according to you, the property is ancestral though your father could not prove it before the court, so you being coparcener have automatic a right in the said property. You can demand for partition and possession despite of failure of your father to get the desired relief. The date of knowledge of said settlment of the ancestral property among his two sons shall have to be shown in the recent past by you and accordingly the challenge may be brought within limitation. A wise drafting of the plaint is required. Engage a senior lawyer dealing in civil side of your area.
Ranvijay Chaudhary (Querist) 03 May 2020
Thank you @RK Makkad sir.... I will follow your advice..
Dr J C Vashista (Expert) 04 May 2020
Besides the advise of expert sh. Raj Kumar Makkad, which I fully agree and appreciate, other coparcerners (your brothers & sisters) should also join you as "plaintiff" in the suit for partition.
Raj Kumar Makkad (Expert) 04 May 2020
You are most welcome Mr. author.
KISHAN DUTT KALASKAR (Expert) 04 May 2020
Dear Sir,
I appreciate sincerely the opinions expressed by the above Experts and agree with them
Rajendra K Goyal (Expert) 04 May 2020
Agree with the advice from expert Raj Kumar Makkad, you may proceed accordingly.

You should engage some expert lawyer having good experience in dealing such cases.

P. Venu (Expert) 05 May 2020
Yes, you can file a suit for partition. But what is the basis for your assertion that the land is ancestral? The crucial question how your father had acquired title to the property and how he had conveyed the same to the other sons excluding your father?
Deekshitulu.V.S.R (Expert) 05 May 2020
You siad that excluding your father his other brothers were given the property. Now my questions are Is there any document to that effect, where is some recitals regarding the property will be there?. Obviously your father might have joined his other brothers and his father in the suit and what is their stand?. Of all said and done, if the father fails in his duty, it will not preclude you from filing the fresh suit, joining all the legal heirs to the property. Another thing is if you have any sister then the things will be much easier. Sec.11 in these fades into insignificance. Go ahead
Rajendra K Goyal (Expert) 05 May 2020
At this state you have nothing to lose except the litigation expenses if you file the case, If you do not file, your share as nil has already been decided.
P. Venu (Expert) 05 May 2020
Litigation expense is bound to be substantial; it would be unwise to jump into litigation without ascertaining the basic aspects.
Rajendra K Goyal (Expert) 06 May 2020
The value of property must be substantial as compared to litigation expenses. For claiming right, pains have to be taken sometimes expenses has to be incurred..
Deekshitulu.V.S.R (Expert) 07 May 2020
As per Court fees law in A.P, in a suit for partition and if you plead joint or constructive possession there is a fixed court fees of Rs. 200/- only even if the property is worth crores. That to in beetween co-heris, or co-owner there is no adverse possession. try another suit, come what may,if possible with a woman heir if any in your family, say your sister. The inaction of a karth can never stand in the way of claiming a share in the joint family assts.
Ranvijay Chaudhary (Querist) 07 May 2020
Yes sir, I do have a sister, She will also join me in the court case.
Thank you Deekshitulu vsr sir.
Thank you everyone for such a valuable opinion.
Raj Kumar Makkad (Expert) 07 May 2020
The court fee for the partition of joint co-parceners property is nominal alover in India.
Rajendra K Goyal (Expert) 08 May 2020
You are welcome, may revert in case of further development in case of need.
Raj Kumar Makkad (Expert) 08 May 2020
I also welcome the author with addition to come here and post in case of any legal advice in future.

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