Order 2 rule 2 cpc

Mohamed Ali (Querist) 09 October 2014 This query is : Resolved
Sir.
We are sunnihanafi family..in our family our grandmother was survived by only 2 daughters and her only son had predeceased her leaving behind a son and a daughter.
There was a suit for partition between heirs of grand mothers which was decreed in 1952, there were 2 types of properties town and revenue for part of decree regarding town properties final decree concluded in 1993, and execution of town properties is also completed and the properties are in joint possesion but for revenue part of the decree final decree is completed in 2011 and is pending Regular appeal no 48/2011 only for other part of decree concerned with revenue properties only..

our grandmother along with her sister is in joint possesion of town properties.
First we filed an interlocutory application in FDP court to delete these grandchildren from record but the FDP court dismissed our IA stating whether the LRs of decree holders will get share or not will not be determined by FDP court then we approached high court it is also upheld the view expressed by FDP court then only we filed declaratory suit.

Then 2 daughters filed a declaratory suit against predeceased sons children seeking declaration that only 2 daughters are entitled to inherit the left over property of their mother,but court dismissed suit saying 2 daughters are entitled for 2/3rd share only rest 1/3rd will go to residuaries in this case predeceased son and daughter... hence we filed a new partition suit for seperate possesion of our 2/3 share in town properties of our mother which are in joint possession with predeceased sons children from past 20 years.

Question: Now the court has dismissed our suit under order 2 rule 2 of cpc citing Regualr appeal is still pending u seek ur remedy there not in seperate suit. Judege has confused with the appeal pending for revenue properties but the FDP court has already rejected our claim to determine our shares in case if town properties then where we have to go to divide our joint town properties. It is not like we directly filed partition suit.

Can we file a review petition to clear the misunderstanding of the judghe insteading of directly going to appeal..

thanks
Ali

Follow Query

Report Abuse

ROHIT SHARMA (Expert) 09 October 2014
1. As per Order 2 Rule 2 the suit should include the whole claim.

2. Your original suit was for the whole claim and part of the town property was first decreed and then the revenue part was also decreed and against this second part of the whole claim is under appeal proceedings then a new suit cannot be filed as on the principle of res-judicata.

3. The court has not erred in dismissing your second suit.