Second Appeal No.412 of 2003

16th June, 2017.

Petitioner Counsel: Shri H. CHITALE

Cases Cited:
Kannikandath Kizhe Purakkal Vella’s Son, Thayyan Vs. Kannikandah Kizhe Purakkal, AIR 1935 Madras 458 [Para 5]
Suraj Rattan Thirani and others Vs. Aamabad Tea Co. Ltd. and others, AIR 1965 SC 295 [Para 7,9]

JUDGMENT

JUDGMENT :- In this second appeal filed by the original plaintiffs, the following substantial question of law arises for consideration:-

Whether dismissal of suit for partition in default under Order 9 Rule 9 of the Code of Civil Procedure would bar the subsequent suit for partition?

2. For answering the aforesaid substantial question of law, it would be necessary to refer to certain relevant facts. The suit property is half portion of House No.509 situated at the main road, Sitabuldi Nagpur. The predecessor of the plaintiffs Rambhau entered in to an agreement to purchase the suit property with one Tarachand on 27-1-1968. Tarachand was the joint owner of the suit house along with his brother Rajaram. As Tarachand did not execute the sale deed, Rambhau had filed R.C.S. No.132 of 1970 and this suit for specific performance was decreed on 28-6-1971. This decree was executed and on 6-9-1975, a sale deed for the aforesaid property was executed in favour of Rambhau. As the suit premises was in possession of a tenant Premnath, Rambhau filed R.C.S. No.132/1976 for his ejectment. This suit was decreed on 27-2-1981. The tenant Premnath challenged this decree and his appeal came to be allowed. The second appeal preferred by Rambhau was dismissed on the ground that Rambhau had purchased a half undivided share and in absence of any partition he could not have become owner of any defined portion of the house. Thereafter Rambhau filed the present suit on 29-4-1988 praying for partition and separate possession of the suit property.

3. The defendant filed his written statement and denied the case of the plaintiff. It was pleaded that the defendant's brother who was the plaintiffs vendor Tarachand had filed suit for partition of the suit property being Special Civil Suit No.136 of 1968. This suit came to be dismissed in default on 24-11-1970. The application for restoration was also dismissed on 8-3-1972 and, therefore, the suit was barred under provisions of Order IX Rule 9 of the Code of Civil Procedure, 1908 (for short the Code). Rajaram claimed exclusive ownership of the suit property.

4. The trial Court after considering the evidence on record held that the plaintiff had failed to prove that Tarachand and the defendant - Rajaram were joint owners of the suit property. It further held that Rajaram had perfected his title by way of adverse possession and, therefore, the plaintiff was not entitled for any relief. The suit accordingly was dismissed on 1-8-1998.

The plaintiffs challenged the aforesaid judgment and the appellate Court recorded a finding that it was proved that the suit property was jointly owned by Tarachand and his brother Rajaram. It, however, held that in view of the dismissal of the suit for partition between two brothers, the present suit was barred under provisions of Order IX Rule 9 of the Code. Being aggrieved this second appeal has been filed.

5. Shri H. Chitale, learned Counsel for the appellants submitted that the suit for partition and separate possession filed by the legal heirs of Rambhau was not barred under provisions of Order IX Rule 9 of the Code. He submitted that the cause of action for filing the present proceedings was distinct from the cause of action for filing the earlier suit for partition by Tarachand. There were various properties that were the subject matter of suit for partition filed by Tarachand. In such circumstances, when the cause of action for the subsequent suit was distinct and the relief sought was only with regard to one of the properties belonging to the joint family, the bar under provisions of Order IX Rule 9 of the Code was not attracted. According to him, as per the provisions of Rule 9 of Order IX of the Code, only the plaintiff who had filed the earlier suit that was dismissed was precluded from filing the subsequent suit and a third party was not so barred. In any event, it was submitted that the right to seek partition gave a continuing cause of action and therefore, the present proceedings could not be said to be barred under provisions of Order IX Rule 9 of the Code. In that regard, he placed reliance upon the judgment of the Madras High Court in Kannikandath Kizhe Purakkal Vella's Son, Thayyan V. Kannikandah Kizhe Purakkal AIR 1935 Madras 458. He further submitted that the appellate Court having held that suit property was jointly owned by Rajaram and Tarachand, the plaintiffs were entitled for the relief of partition. He, therefore, submitted that the suit was liable to be decreed.

6. The appeal was heard on 14-6-2017 and 15-6-2017. There was no appearance on behalf of the respondent on said dates. Today also there is no appearance on behalf of the respondents. With the assistance of the learned counsel for the appellants, I have perused the records and I have given due consideration to the submissions urged on behalf of the appellants.

7. Taking up the first submission made on behalf of the appellants that on account of the dismissal of the suit filed by Tarachand for partition under provisions of Order IX Rule 8 of the Code, the subsequent suit filed by Rambhau was not barred as the provisions of Order IX Rule 9 of the Code only preclude such plaintiff whose earlier suit has been dismissed, said contention cannot be accepted. Though it is true that the provisions of Order IX Rule 9 of the Code refer to a "plaintiff" being precluded from filing a fresh suit on the same cause of action, these provisions fell for consideration in Suraj Rattan Thirani and others Vs. Aamabad Tea Co. Ltd. and others, AIR 1965 SC 295 wherein it has been held in clear terms that the word "plaintiff" in Rule 9 of Order IX would also include his assigns and legal representatives. In view of this legal position, mere fact that Rambhau was not the plaintiff in the earlier suit cannot be a valid ground for not considering the application of the bar under provisions of Rule 9 of the Order IX of the Code. Rambhau claims to have purchased the suit property from Tarachand who was the plaintiff in the earlier suit and, therefore, he would have to get over the legal bar as imposed in Order IX Rule 9 of the Code.

8. It is to be noted that in Special Civil Suit No.136 of 1968 that was filed by Tarachand against his brother for partition, relief was sought in respect of the properties mentioned in Schedule A of the plaintiff. These properties included a house at Telipura which is not the present suit property. It also included the present suit property as one of the properties of which partition was sought. In other words, the present suit house was not the only suit property that was the subject matter of partition in Special Civil Suit No.136 of 1968.

The bar under Order IX Rule 9 of the Code is to bring a fresh suit is with regard to the same cause of action. The cause of action in the earlier suit for partition arose on 4-12-1967 and on 23-12-1967 after exchange of notices between the two brothers. The cause of action for the present suit arose on 15-2-1988 when the plaintiffs learnt on the dismissal of their second appeal that they were owners of half undivided share of the house jointly owned by the two brothers. The cause of action in the present suit is, therefore, distinct from the cause of action in the earlier suit.

9. In any event, it is well settled that the cause of action for a suit for partition is a continuing cause of action. In Suraj Rattan (supra) it has been held that where a partition suit is dismissed for default it does not bar a subsequent suit as even after dismissal of the former suit, the jointness continues and there is a continuing cause of action. The entire house property having continued to remain joint after dismissal of the earlier suit for partition on 24-11-1970 and the cause of action for the present suit having arisen subsequently which was also distinct from the earlier cause of action, there is no manner of doubt that the bar as prescribed by provisions of Order IX Rule 9 of the Code for filing the subsequent suit is not at all attracted.

The appellate Court fell into error when it is held that the present suit was barred under provisions of Order IX Rule 9 of the Code. As noted above, the cause of action for filing the present suit was distinct from the cause of action for filing the earlier suit and the subsequent suit was only with regard to one of the joint family properties that came to be purchased by the predecessor of the appellants. In that backdrop, suit for partition was maintainable. On that count said finding recorded by the appellate Court cannot be sustained. The substantial question of law is answered by holding that the dismissal of the earlier suit for partition would not bar the subsequent suit for partition under provisions of Order IX Rule 9 of the Code.

10. The appellate Court in paras 9 and 10 of its judgment has held that the plaintiffs Vendor - Tarachand was never ousted and that both the brothers were joint owners of the suit property. The said finding is not under challenge in this appeal. Consequent thereto after setting aside the judgment of the appellate Court, the plaintiffs would be entitled for the relief of partition and separate possession.

11. In view of aforesaid discussion, the following order is passed:

ORDER

The appeal is allowed.

The judgment of the trial Court in Regular Civil Suit No.1000/1988 dated 1-9-1988 and that of the appellate Court in Regular Civil Appeal No.650 of 1988 dated 16-4-2003 is set aside.

The proceedings in Regular Civil Suit No.1000/1988 are decreed. It is held that the appellants are entitled to possession of half share in House No.623/ 509(old) on Main Road Sitabuldi, Nagpur as described in the schedule to the plaint. There shall be no order as to costs.

Appeal allowed.