Ukha Vs. Daga and anr.

civil procedure code act viii of 1859, section 7 - act x of 1877, section 43--relinquishment of claim. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court under article 141 of the constitution of india. said observations/directions are issued in exercise of powers under article 142 of the constitution and also have no application to the cases relating to appointments and are restricted to the cases relating to admissions. the protection, if any, to be granted in the fact and circumstances of case would depend upon exercise of discretion by supreme court under article 142 of the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - if this allegation be true, the plaintiffs were bound in their former suit to demand a partition of the whole property which remained undivided,-that is, of the lands as well as the debts;melvill, j.1. we are of opinion that the present suit is barred by section. 43 of act x of 1877. in 1861 the present plaintiffs sued the present defendants for a partition of certain debts due to the family. in their plaint they alleged that all the family property, with the exception of the debts, had already been divided. the suit was compromise and withdrawn, but without the permission of the court. the present suit is brought for a partition of certain lands which are alleged to have been left for subsequent division at the time of the former partition. if this allegation be true, the plaintiffs were bound in their former suit to demand a partition of the whole property which remained undivided,--that is, of the lands as well as the debts; and having intentionally omitted to do this, they are barred from bringing the present suit by the provisions of section 7 of act viii of 1859 equally with those of section 43 of act x of 1877.2. for these reasons we reverse the decrees of the courts below and reject the claim with costs on the plaintiffs throughout.