Dilo Rana and Another vs Munshi Kunj Behari Prasad and Others

Sinha, J.—This is a defendants'' second appeal against a decision of the learned Subordinate Judge of Hazaribagh reversing that of the Munsif of Giridih in a suit foe partition.

In so far it is necessary to determine this appeal the facts may shortly be stated as follows. There were two brothers, Sibban and Horil. who owned and possessed a moiety share in a certain holding bearing Khata No. 13 The plaintiffs respondents purchased the interest of Horil''s branch in that Khata, from his son named Tojo, The plaintiffs had instituted a previous suit for partition, but as the heirs of one of the several defendants named Daso Rana had not been substituted in place of the deceased defendant the suit had naturally abated, but the plaintiffs took the precaution of obtaining leave from the court to institute a fresh suit after withdrawing that suit on the ground that it had become defective on account of defect of parties. That leave was granted, and the suit out of which this appear arises was instituted for the same relief, namely partition. The defendants-appellants contested the suit on several grounds which, it is no more necessary to recount except the ground of maintainability. Their contention on the question of law was that the second suit was not maintainable in view of the fact that the previous suit really had abated and that the plaintiffs obtaining permission from the Court to withdraw from the suit with liberty to bring a freak one did not make any change in the legal position.

The court of first instance gave way to this contention and dismissed the suit, but the lower appellate court reversed the decision on the ground substantially that a suit for partition instituted subsequently to the withdrawal of the former suit was based on a different cause of action from that alleged in the previous suit for partition, and that, therefore, the present suit was not, as alleged by the defendants, had on the ground that the previous suit had abated for non-substitution. Hence this second appeal.

Mr. Sarju Prasad appearing on behalf of the appellants has contended on the authority of the decisions of the Madras High Court in Sheshamma v. Venkata Surya Narayana AIR 1914 Mad. 170 and of a single Judge of the Rangoon High Court, in Maung Ba Tu v. Ma Thet Su AIR 1928 Rang. 73 that the abatement of the previous suit had the effect of making the second suit not maintainable because it was again a suit for partition, that it to say, exactly the same suit which had proved infructuous in the, previous litigation between the parties. It is enough to point out that the decision of the Madras High Court did not relate to a suit for partition. Hence the question of recurring cause of action had not to be considered in that case.

In the Rangoon High Court case also, as pointed out by the learned Judge of that Court it related to the question of rights of the heirs of a deceased Burmese Buddhist, and his Lordship appears to have made distinction between the legal position arising in that case and the position arising out of a suit for partition relating to joint family property of a Hindu, or the joint property of a Muslim as discussed in the several cases referred to in that very decision, namely, Nasrat-ul-lah v. Mujib-ul-lah (91) 13 All. 309 Bisheshar Das v. Ram Prassd (06) 28 All. 627, Mukhaerji v. Afzal Beg AIR 1915 All. 1 Madon Mohan v. Baikantanath 10 C.W.N. 839 and Durga Charan v. Khundkar AIR 1918 Cal. 393. Those Allahabad and Calcutta decision 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 plaintiffs had by any process known to law lost their right of partition, That being so, it must be held that the plaintiffs'' right of partition subsisted even after the abatement of the previous suit for partition instituted by them. It must, therefore, be held that the decisions relied upon on behalf of the appellants are of no assistance to them for the purposes of the present case.

In my opinion, the lower appellate Court rightly held that the suit was maintainable in spite of the abatement of the previous suit for partition. The appeal is accordingly dismissed with costs.

Meredith, J.

I agree.