Devi Sahai and others vs Nanar and others

Chopra, J.—The only point involved in this appeal is whether the abatement and consequent dismissal under O. 22 R. 9, Civil P.C. of a suit for partition of joint property bars a fresh suit for the same or similar relief by the same plaintiff.

The facts so far as they are relevant for the purposes of this appeal are these: Lalia and his uncle Daulu were joint owners of the suit land measuring 311 bighas 18 biswas situate in village Gahara (erstwhile Nabha State). Somewhere in the year 1934 Bk. Lalia migrated to and got settled in village Dhohar (erstwhile Patiala State) and left his share in the land with Daulu on the condition that he would be entitled to get it back on his return. An entry to that effect was made in the pedigree table prepared at the settlement of the year 1947 Bk.

Sita, Makha, Nanar and Amrao sons of Lalia on their return to the village brought a suit for possession by partition of their share of the land alleging that they were its co-owners along with the defendants in equal shares and that the Defendant''s possession over their share of the land was only permissive. This suit was brought on-3-9-2000 Bk.

Devi Sahai and Channa sons of Ganga Sahai and Mst. Darkan widow of Puran were impleaded as the principal defendants. Ganga Sahai and Puran are the sons of Daulu Sita, one of the plaintiffs, died during the pendency of this suit on 3-9-2003 Bk. An application to impleaded his sons as his legal representatives was made on 27-1-2007, As the time for bringing on record the legal representatives of the deceased had by then expired, the suit was held to have abated in to to, and it was consequently dismissed on 29-12-2007 Bk. (24-3-1950 A. D.)

Sometime thereafter the plaintiffs approached the revenue authorities for partition of the joint land. They were, however, directed to get their rights decided by a civil court, vide the Revenue Assistant''s order dated 10-7-1951. Makha, Nanar and Amrao and the four sons of Sita deceased then brought the present suit for a declaration that they were entitled to one-half share in the land and to get it partitioned and also prayed for a decree for its joint possession. The defendants, who are the same as in the prior suit, raised various objections on merits of the case and also took exception to its maintainability as provided by O. 22, R. 9, Civil P. C.

The trial Court found in favour of the plaintiffs on all these points and decreed the suit. The defendants in their appeal to the Additional District Judge disputed the findings of the trial Sub Judge only on two of the issues that related to abandonment and limitation. The first appellate court dismissed the appeal but expressed no opinion on the objection regarding non-maintainability of the suit, as me same was not pressed before it.

The second appeal by the defendants has been referred to a larger bench by my learned brother because of the importance of the question involved.

The only point that has been urged before us on behalf of the appellants is that the present suit is barred under O. 22, R. 9, Civil P.C. because of the abatement of the previous suit instituted by the same set of plaintiffs and on the same cause of action. The fact that the objection was not pressed by the appellants'' counsel in their first appeal is of no consequence, the question being purely one of law the appellants are not bound by any admission of their counsel. But on merits the objection is without any force.

As is clear from the judgment itself no decision on merits was arrived at in the earlier suit; plaintiffs right of joint ownership and joint position was not decided against them in that litigation. Dismissal of that suit under O. 22, R. 9, Civil P.C. cannot, there-fore, operate as res judicata in favour of the opposite party. The question, however, is whether the respondents are, under the specific provisions of O. 22 R. 9, Civil P.C, barred from bringing the present suit.

The relevant part of the rule is its cl. (1) and that reads:

9(1) where a suit abates or is dismissed under this order no fresh suit shall be brought on the same cause of action.

It bars a fresh suit on the same cause of action. Cause of action has no relation whatever to the defence which may be set up by the defendants, nor does it depend upon the character of relief prayed for by the plaintiff. It relates entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour.

The right to bring a suit for partition, unlike other suits, is a continuing right incidental to the ownership of joint property. The right subsists as long as the property is not partitioned and continues to be joint. So long as there is no adverse decision to the plaintiff''s claim of joint ownership of the property in dispute or of the right to get it partitioned the claim and the right subsist, and every demand for exercising that, right met with a refusal by the other co-owners gives him a fresh cause of action for the exercise of that right.

May be that at one moment one of the co owners likes to get his joint possession changed into separate possession, but the desire may cease during pendency of the action that he starts for that purpose and he gets the proceedings dropped expressly or by not prosecuting them. Circumstances may again arise which make it desirable or necessary that a partition should take place. He may then again make a demand for it and its refusal would give him a fresh cause of action. Looked upon from, another angle the argument leads to the same conclusion. If the parties to a suit for partition which is dismissed for default of appearance or proper prosecution, continue to remain joint owners and in joint possession of the property, continuance of that position after the first decree gives rise to a fresh cause of action. The right to claim partition subsists so long as the property remains joint; is a principle that is so well recognized and has been uniformly followed.

In - ''Nasrat-Ullah v. Mujibullah'', 13 All 309 (A), a suit for partition was decreed in favour of the plaintiff but execution of the decree was not taken out and the property was allowed to remain joint, in the second suit by the same plaintiff for the same relief, it was held:

Where a decree declaring a right to partition has not been given effect to by the parties proceeding to partition in accordance with it, and the decree has become, by lapse of time or otherwise, unenforceable, it is competent to the parties, or any of them, if they still continue to be interested in the joint property, to bring a fresh suit for a declaration of their right to partition, though that decree may operate as res judicata in respect of any claim or defence which was, or might have been, raised in the suit in which it was passed.

This decision was followed, and the principle laid down therein was applied to a case where the prior suit was dismissed for default, in - ''Bisheshardas v. Ram Prasad'', 28 All 627 (B). The plaintiffs in this later case were members of a joint Hindu family and in each of their suits they prayed for partition of the joint assets. The second suit was dismissed as barred under the provisions of S. 103. Civil P.C. (O. 9, R. 9, Civil P.C. 1908) by the District Judge.

The High Court accepted the appeal and held that ''the right to enforce partition is a legal incident of a joint tenancy, and as long as such tenancy subsists so long may any of the joint tenants apply to the Court for a prayer for partition of the joint property.''

These and some other decisions of the Allahabad High Court holding the same view dealt with suits for partition of estates of joint families and they are tried to be distinguished on that ground. But on principle I do not see any point for distinction in the right for partition of a joint-tenancy and tenancy-in-common, as the right of partition belongs equally to each of them. Madhura Gramani Vs. Thummala Sesha Reddi and Others, was a case of joint owners and there the plaintiff''s prior suit had been dismissed under O. 22 R. 8, Civil P.C. She brought another suit for partition and was met with, the objection that the second suit was barred under O. 9 R. 9. The objection was over-ruled with the following observations:

In the present case, when the suit of the plaintiff''s assignor was dismissed in 1917 she was relegated to her right to partition, a right which accrues from time to time, for this right had not been taken away by the prior litigation. It is not contended for the appellant that the question is res judicial and consequently the present suit which is based on the plaintiff''s assignor''s right of partition, is not barred by O. 9 R. 9.

This view was approved and followed by a Division Bench of the same High Court in - Kannikandath Kizhe Purakkal Vella''s Son Vs. Kannikandath Kezhe Purakkal, . In the latter case the second suit for partition, after file first one was dismissed in default, was not held to be barred on the ground that after the dismissal of the former suit the jointness continued and there was a continuing cause of action.

Dilo Rana and Another Vs. Munshi Kunj Behari Prasad and Others, is another authority to the same effect and directly to the point. Here the plaintiffs had instituted a previous suit for partition, but as heirs of one of the several defendants had not been substituted in place of the deceased defendant the suit had abated. The second suit for partition by the same plaintiff was contested on the ground of its non-maintainability under O. 22, R. 9. Civil P.C. The court of first instance gave way to this contention and dismissed the suit, but the first appellate court reversed the decision and decreed the suit.

The point having again been urged in the High Court, Sinha J. after referring to certain Allahabad and Calcutta decisions observed as follows:

Those Allahabad and Calcutta decisions are authority for the proposition that partition is a recurring cause of action so long as the property remains joint. In this case it has never been determined by any competent court that the property was either partitioned previously, or that the plaintiff had by any process known to law lost their right of partition. That being so, it must be held that the plaintiff''s right of partition subsisted even after the abatement of the previous suit for partition instituted by them.

In the earlier suit after its abatement the plaintiff had obtained leave from the Court to institute a fresh suit. This is, however, not the ground on which the judgment is based and cannot be regarded as a point for distinction.

Some assistance may also be derived by analogy from cases which pertain to mortgagor''s right of redemption and in which it is held that the right subsists so Ions as the mortgage is not extinguished and as long as the relationship of mortgagor and mortgagee continues.

In Rajaram Vithal Sutar Vs. Ramchandra Pandu, , the Full Bench considered the effect of dismissal, under O. 22, R, 9, Civil P. C, of an earlier suit for redemption on a second suit for the same relief Chagla J. repelled the objection with the following observations:

So long as the relationship of mortgagor and mortgagee continues and so long as the right to redeem has not been extinguished by a decree of the Court or by the act of the parties, the mortgagor is entitled to go to a Court of law to enforce his right........Hence where a suit for redemption brought by a mortgagor abates by reason of his death during the pendency of the suit, a second suit brought by his heirs for redemption is not barred, as the-abatement of suit is not a decree of the Court extinguishing the right of redemption.

In ''Mattapalli Raju v. C. Venkata Raghavayya'', AIR 1315 Mad 225 (G), the Madras High Court took a different view on the question of extinction of a mortgagor''s right of redemption and held that it could also be extinguished by provisions of law other than S. 60, T.P. Act, such as those contained in O. 9, R. 9 and O. 22, R. 9, Civil P.C.

This decision of the Madras High Court was, however, set aside on appeal by the Federal Court in - ''T.C. Subba Rao v. Mattapalli Raju'', AIR 1950 FC 1 (H). Their Lordships approved the Bombay view and held that the right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage exists. It was further observed that unless the equity of redemption is extinguished as provided by S. 60, T.P. Act, a second suit for redemption by mortgagor, if filed within the period of limitation, is not barred. On behalf of the mortgagees it was argued that although the right to redeem may not be extinguished, the remedy is barred.

Dealing with this argument, Kania C.J., after giving a finding that the previous suit for redemption was dismissed under O. 9, R. 9, Civil P.C. and that S. 11, Civil P.C. had no application, observed as follows:

It follows therefore that if the right of redemption is not extinguished, provisions like O. 9, R. 9, or O. 22, R. 1, will not debar the mortgagor from filing a second suit because, as in a partition suit the cause of action in a redemption suit is a recurring one. The cause of action in each successive action, until the right of redemption is extinguished or a suit for redemption is time barred, is a different one.

Against all this, S. Tirath Singh, Learned Counsel for the appellants, relies upon certain obiter remarks in the judgment of Chari J. in - ''Maung Ba Tu v. Ma Thet Su'' AIR 1928 Rang 73 (I). The suit in this case, as pointed out by the learned Judge, was not one for partition but it related to the question of rights of the heirs of a deceased Burmese Buddhist. His Lordship pointed out the distinction between the legal position arising in the case before him and the position arising out of a suit for partition relating to joint property as discussed in several Allahabad and Calcutta cases referred to in his decision.

As regards the principle laid down in those cases the learned Judge observed:

It is, however, unnecessary to consider this point any further because in the view I take of the right of Burman Buddhist heirs they are not entitled to maintain a suit for partition strictly so called, and it is only in such cases that the right could, if at all, be continuing or recurring right.

and finally concluded as follows:

The right of a Burman Buddhist heir is not a continuing or recurring right but one which vests in him on the death of the ancestor. The reasoning adopted in the case in 28 All 627 (B) is, therefore, inapplicable and when a suit for the division of inheritance is dismissed for default he is debarred by the provisions of O. 9, R. 9 from instituting a second suit on the same cause of action.

This authority is in �o way helpful to the appellant.

In the case before us, as already observed, Lalia and his uncle; Daulu were joint owners of the land in dispute holding equal shares. As indicated by a note in the pedigree-table of their family prepared in the settlement of 1947 Bk. Lalia migrated to his uncle Daulu on the understanding that he would got his share back on his return. The whole Khata continued to be entered in the joint ownership of Lalia and Daulu, or their sons after their death, in the revenue records. No change therein was effected even after the dismissal of the prior suit, and the position continues to be the same uptil now.

In their earlier suit, Sita, Makha, Nanar and Amrao, sons of Lalia, claimed separate possession of one-half of this joint Khata by partition. On Sita''s death during pendency of the suit his legal representatives having not been impleaded within time, the suit abated and was dismissed in toto on that ground. The plaintiffs thereafter applied to the revenue authorities for partition, but on 10-7-1951 they were directed to get their rights declared by a civil court. The present suit was then brought by Sita''s sons and his three brothers.

In this suit they pray for a declaration that as owners of one-half of the land they are entitled to get it partitioned, and in addition they pray for a decree for joint possession. The cause of action is stated to have accrued to them on refusal of the defendants to deliver joint possession of the land and refusal of the revenue authorities to effect partition thereof.

Whatever may be the form of relief sought in the two suits, strictly speaking, each of them is a suit for partition of the joint land. The object of a suit for partition is to alter the form of employment of joint property by co-owners, and in partition the property is transformed into estates in severalty and one of such estates is assigned to each of the former occupants for his sole use and as his sole property.

The essential features of a partition suit are; (1) unity of interest or title in the property sought to be partitioned, and (2) unity of possession. The plaintiff must be in joint possession or entitled to joint possession with the defendants, but the possession alleged by the plaintiff may be actual or constructive. If the plaintiff is not in joint possession, either actual or constructive, but is entitled to joint possession then he may frame the suit as one for joint possession and partition.

In the present case, the courts below have-found -and those findings are not challenged before us - that the plaintiffs are co-owners of the suit land and that the defendants'' possession of their (plaintiffs'') share was and is on their behalf and as their trustees. The plaintiffs must, therefore, be regarded as in constructive possession of the land; in any case, they are entitled to its joint possession as co-owners. Each of the-suits brought by them was one for partition even in its strictest sense. In my judgment, therefore,, the dismissal of their prior suit under O. 22,. R. 9, Civil P. C. is no bar to the present suit.

In the result the appeal fails and is dismissed with costs.

Gurnam Singh J.

I agree.