1. This is a suit for partition. Plaintiff claims 11 annas 5 dams share in a tenure consisting of 12.94 acres of Lakhraj Abadi lands in village Yarpur, which he claims to have purchased from aglal Sah. According to the plaintiff's case, Jaglal Sah held a mortgage over this property from defendants 3rd party, who were defendants 14 to 19 in the action, under a mortgage deed dated 12-1-1926. Jaglal Sah brought a suit to enforce his ??? dues, obtained a decree and in ??? purchased that property on ??? The cause of action alleged by the plaintiff ??? that no demanded partition of his share on toot his title, set out in the plaint, on 14-7-1947, ??? the defendants refused to comply with.
2. Accordingly, the plaintiff prayed for ??? a partition of the said tenure by ??? and for the carving out of a specific ‘takhta’ ??? respect of his share of 11 annas 5 dams “knam” ??? equivalent to 8 annas 8 dams and 15 ??? ‘pokhta’ in the said tenure.
3. It may be stated that the plaintiff ??? averred in the plaint in para 3 that after ??? purchase of the property by the sale deed ??? Jaglal Sah on 12-7-1942, the plaintiff has been in possession and finding the management of property with his co-sharers difficult he had to ??? upon the defendants to partition, which they ???.
4. It may be stated that the defendants 1st party, admittedly, had six annas interest in the ‘touzi’; defendants 2nd party had four annas interest and the defendants 3rd party held the remaining six annas interest. Defendants 8 to 1 of the first party had 2 annas 8 dams 15 ??? equivalent to 3 annas 5 dams ‘kham’ share in the six annas interest belonging to the defendants 1st party.
5. It was alleged that defendants 8 to 10 enjoyed their share of the six annas interest belonging to the defendants 1st party as a result of a amicable partition between them and other members of the first party (defendants 1 to 7). On 3-6-1924, defendants 8 to 10 of the first party conveyed their interest under a deed of sale to defendants 3rd party who came to own and possess annas 8 dams 15 kowries ‘pokhta’ share.
6. This interest corresponds to 11 annas 5 dams of ‘kham’ share as alleged and claimed by the plaintiff which was purchased at an auction sale by Jaglal Sah and was subsequently conveyed to him.
7. It may further be noted here that on 10-11-1944, plaintiff's application for mutation of his name before the Land Registration Officer, was dismissed for default. The plaintiff accordingly instituted Title Suit No. 85 of 1945 for a declaration that a cloud was cast upon his title as a result of the rejection of his prayer for mutation by the Land Registration Deputy Collector and as such he had to institute a suit for declaration of his title and possession.
8. On 3-6-1946, this suit was dismissed for nonappearance of the plaintiff, under O. 9, R. 8 of the CPC. The plaintiff thereafter filed an application for restoration of the suit which was dismissed. An appeal preferred against it was also dismissed. The plaintiff then filed an application in revision against the order of the trial Court in the High Court which, however, was also dismissed.
9. The present suit was accordingly filed on 18-11-1947, by the plaintiff for partition of his share in Khewat No. 1 of this ‘touzi’ bearing No. 2323.
10. The defendants' plea was that the suit was not maintainable under the provisions of O. 9, R. 9 of the CPC. It was further fit to be dismissed as the plaintiff had no unity of title and possession over the suit land without which his claim for partition could not be decreed. The learned Sub-ordinate Judge of Patna, who tried the case, held that the provisions of O. 9, R. 9 of the CPC, operated as a bar to a decree being granted to the plaintiff and, in view of the matter, dismissed the suit.
11. An appeal was taken against the decision of ??? learned Subordinate Judge which was disposed ??? by the learned Additional District Judge of ??? who reversed the judgment of the learned ??? Judge. He held that O. 9, R. 9, ??? P.C, does not operate as a bar in the ??? case and the suit of the plaintiff for partition was maintainable.
12. He held that the plaintiff had title and possession and was thus entitled to have a share ??? out according to the extent of his share in ??? said property. This second appeal has been preferred against this decision of the learned Additional District Judge.
13. Two points have been strenuously raised before me. It was urged, in the first place, that the present suit for partition is in substance a title suit in the garb of a partition suit. The plaintiff's claim for declaration of title & for confirmation possession and, in the alternative, for recovery of possession having not been allowed (as the suit was dismissed for default), it must be held that the plaintiff had no unity of title and possession and the present suit, accordingly, is in substance a suit for declaration of title and possession which was the subject-matter of Title Suit No. 85 of 1945.
14. The court-fee paid by the plaintiff is the amount ??? for a partition suit and in that view of the matter the claim for partition could not have been decreed. In my opinion, there is no force in this argument. The learned Additional District Judge held that the plaintiff had title and possession and that the suit, in fact, was a suit for partition simpliciter, and as such there is no reason to hold that the plaintiff had not been able to prove title and possession.
15. The learned Additional District Judge recorded a finding on title and possession on a consideration of the evidence on record. The basis of this argument, however, seems to be the disposal of Tide Suit No. 85 of 1945 in the absence of the plaintiff. It is, however, clear even with reference to the plaint of that suit (Ex. A) that the plaintiff did not allege that he was out of possession, nor was there any decision on the point that the plaintiff had no title or possession.
16. The effect of the disposal of Title Suit No. 85 of 1945, if anything, is not one of a decision on merits which might operate as ‘res judicata’, but much turns upon the technicality pleaded regarding the plaintiff's right to bring a fresh suit on the same cause of action in terms of O. 9, R. 9 of the CPC.
17. It is, therefore, not correct to say that in substance this suit is not a simple suit for partition. If the allegations of the plaintiff are such as would be necessary in a suit for partition, there is no reason to hold that the mere fact that there was dismissal for default of the previous action would be a bar and a suit for partition could not be instituted again, provided of course that the suit is not within the apparent bar under O. 9, R. 9 of the CPC.
18. The contention, therefore, that the present suit is one fir declaration of title in the garb of a partition suit cannot be accepted.
19. A more substantial point, however, stressed by learned counsel for the appellants is with regard to the disability under O. 9, R. 9 of the CPC. It has been urged that the suit for partition is an obvious attempt to get rid of the effect of the order of dismissal for default. I have said above that the order of dismissal was passed on 3-6-1946, and the present suit was instituted on 18-11-1947.
20. The proximity of time between the two dates is such as can reasonably give rise to the contention of learned counsel for the appellants that the plaintiff having failed in Title Suit No. 85 of 1945 had brought this action. That, however, does not mean that O. 9, R. 9, would necessarily be a bar. To find out, therefore, whether the provisions of O. 9, R. 9, can act as a bar or not, the allegations in the two suits set out in the plaints will have to be examined to see whether the cause of action in the two suits is the same.
21. If it can be established that the allegations in both the plaints are same, and cause of action also is based on those allegations, then obviously the suit is barred, as O. 9, R. 9, lays down that where a suit is wholly or partly dismissed under R. 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.
22. The crucial point, however, to determine in each case is, as I have said, whether, the cause of action is identical in both the suits. Learned counsel for the appellants contended that although the expression “cause of action” is not defined in the Code of Civil Procedure, it has been judicially interpreted to mean the entire bundle of facts which the plaintiff has to prove in order to establish his right and the relief he claims; in other, words, the media upon which he asks the Court to proceed in order to grant the relief prayed for in the plaint.
23. If that is the meaning of cause of action as laid down in the various decisions, the present suit must be held to be barred; because the essential facts which the plaintiff had to prove in Title Suit No. 85 of 1945 were that he purchased the interest of Jaglal Sah who held a valid mortgage in respect of 11 annas 5 dams share of the defendants 3rd party.
24. The defence case was that as a result of the previous partition between defendants 1 to 7 of the first party and defendants 3rd party (the mortgagors of Jaglal Sah), the suit land had fallen to the exclusive possession of defendants 1 to 7 of the first party, and, therefore, Jaglal Sah, the mortgagee, did not acquire any interest in this property, and the decree obtained by him and the auction purchase on foot thereof against the defendants 3rd party could not have the effect of adversely affecting the right of the defendants 1st party Nos. 1 to 7.
25. It was on that ground that the defendants 1st party resisted the suit of the plaintiff. The mere fact, therefore, that the immediate ground of complaint by the plaintiff of that suit was the rejection of his prayer by the Land Registration Deputy Collector would not constitute the cause of action in the suit, because that was only incidental to the high relief claimed by the plaintiff of being put in possession of the property.
26. He has relied in support of his contention upon a decision of this Court in the case of ‘Gopi Ram Bhotica v. Thakur Jagarnath Singh*’, AIR 1929 Pat 685 (A). That was a case in which the plaintiff instituted a suit for a declaration of his title to the minerals in certain mahal of Khaira Raj. The defendants who resisted the suit were alleged to be Mustajirs in respect of the property.
27. Since, however, they laid claim to the compensation for the mica, cut and removed by the Government alleging that they were the owners of the mica mine and were entitled to the compensation, there was a suit instituted by the proprietor of Khaira Raj, Guru Pd. Singh, against the defendants for an adjudication that the plaintiff was the sole and exclusive owner and proprietor of the mica mines and other minerals and other underground or subsoil rights of the mahal, and the defendants had no right whatsoever to them, and that the claim put forward by the defendants for compensation was altogether groundless.
28. The suit was, however, dismissed for nonappearance of the plaintiff under O. 9, R. 8 of the CPC. Thereafter the suit giving rise to the appeal considered by this Court in the above decision was instituted. It was filed by one Gopi Ram Bhotica who claimed to have derived his interest from one Mr. A.C Bose, who in his turn derived interest in the property from Guru Pd. Singh, the proprietor of the Khaira Raj.
29. It was held by their Lordships of this Court that the second suit was barred in terms of O. 9, R. 9 of the CPC, because the plaintiff of that suit was merely an assignee from Guru Prasad Singh and was actually substituted in the O. 9, R. 9 of the CPC case, and the cause of, action laid in the suit of Guru Pd. Singh was the same as was the cause of action in the suit of Gopi Ram Bhotica.
30. Apart from other considerations, it was held that the cause of action which means the bundle of facts to be proved by the plaintiff was the same, because the same set of facts which the plaintiff Guru Pd. Singh would have to prove in order to succeed also would have to be proved by Gopi Ram Bhotica in that action. The observation particularly stressed on this point by learned counsel runs thus:
“The whole of the cause of action in the previous suit is included in the cause of action in respect of which the present suit has been instituted. The material facts, which gave occasion for and formed the foundation of the previous suit, have given occasion for and have formed the foundation of the present suit.
It must follow, in my judgment, that the present suit has been brought in respect of the same cause of action in respect of which the previous suit was instituted.”
31. In my opinion, however, the case referred to, above is distinguishable. The suit of Guru Pd. Singh was one for declaration of title with a prayer for injunction against the defendants, and the subsequent suit was in substance a repetition of the same cause of action with the only addition that there was an assignment by Guru Pd. Singh first in favour of Mr. A.C Bose and by the latter in favour of the plaintiff-appellant.
32. Their Lordships in the above decision came to the conclusion that the question of assignment was not material in determining the consideration of the bar under O. 9, R. 9 of the CPC, in the circumstances of that case. For the rest, it was held with reference to the allegations in the two plaints that the plaint in the subsequent suit was an exact copy of the plaint in the previous suit with two additional paragraphs, one, setting out the two assignments and the other reciting the dismissal of the previous suit.
33. It is clear, therefore, that the decision in the above case that the cause of action in both the suits was the same turned upon its own peculiar fact? If, therefore, the present suit by the plaintiff had been instituted on identical grounds With regard to the rejection of the Prayer for mutation of the plaintiff's name in the Collector's register or, for the matter of that, even if the subsequent suit were instituted for declaration of title and possession, it might well be ??? that the view propounded in the case referred to above would be an obstacle ??? the way of the plaintiff.
34. Since, however, the present suit is one for partition, whereas the previous suit was for a declaration of title based on the fact of the rejection of the prayer of the plaintiff for mutation of his name in the Land Registration Department, it cannot be said that the ??? case is hit by the principle of law laid down in the above case.
35. Learned counsel for the appellants also placed reliance upon the case of — ‘Gour Hari Adak v. Sharat Chandra Lahiri’, ILR (1937) 2 Cal 651 (B), where a Division Bench of the Calcutta High Court had the occasion to consider the meaning of cause of action. In my opinion, the decision referred to above, if anything, goes against the contention of the learned counsel for the appellants.
36. It was held in that case that when a suit for setting aside a revenue sale on the ground of breaches of the provisions of the Bengal Land Revenue Sales Act (11 of 1859) with the allegation that the sale was brought about by the fraud of the defendants, was dismissed for default, and the plaintiff brought another suit for a declaration that the sale was brought about by the fraud of the defendants and for a decree for re conveyance of the property in favour of the plaintiff, the subsequent suit was not barred. S.K Ghose, J. observed as follows:
“As I have already said under Section 33 of the Revenue Sales Act he is entitled to claim to have the sale set aside on the ground of breaches of the Act. But his prayer in the present plaint is not on the footing that the sale is set aside, but on the other hand that the sale stands, and the foundation of the cause of action in the present suit is not a breach of the revenue sales, but fraud which has not yet been tried.”
37. Learned counsel contended that the above decision supports his argument because in that case the subsequent suit was on the ground of fraud, whereas the first suit was only on the ground of the breaches of the provisions of the Revenue Sales Act. In my opinion, that is not correct. The first suit, as I have already stated, was also on the allegation that the sale was brought about by the fraud of the defendants although a prayer was also combined that it was in violation of the Bengal Land Revenue Sales Act.
38. The essence of the view of their Lordships of the Calcutta High Court seems to be that unless the cause of action alleged in the two suits is identically the same the second suit cannot be held to be barred under the provisions of O. 9, R. 9 of the CPC. It may be pertinent to refer in this connection to an observation of their Lordships with regard to the meaning of ??? of action. S.K Ghose, J. in the above case also stated thus:
“The expression ‘cause of action’ has been variously defined. It is relevant for our purpose to point to one of these definitions, namely that cause of action means every fact which is necessary to be proved to entitle the plaintiff to have a decree but does not mean every piece of evidence which is necessary to prove such facts:— ‘Murti v. Bhola Ram’, 16 All 165 (FB) (C)”
39. Learned counsel for the appellants next relied Upon the case of — ‘Mohammad Khalil Khan v. Mahbub Ali Ram’, AIR 1949 PC 78 to 86(D). That was a case where the effect of O. 2, R. 2 of the CPC, was being considered and Sir Madhavan Nair, who pronounced the opinion of the Board, no doubt, stated that cause of ??? means every fact which will be necessary for ??? plaintiff to prove if traversed in order to support his right to the judgment, and one of the ??? tests laid down for determining whether, the ??? of action is different is that if the same evidence supports the two claims, then the causes of action are not different; and, further, that the causes of action in the two suits may be considered be the same if in substance they are identical.
40. The propositions referred to above, however, ??? more or less the same which have been laid down in the various decisions of the Indian Courts. The Judicial Committee, however, considered the matter in relation to O. 2, R. 2 of the CPC as I have said, which provides a bar that where the plaintiff omits to sue in respect of, or intentionally, relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
41. The expression “cause of action” has been considered in connection with this matter. The decision referred to above, therefore, has no material earing upon the point before me. These are the ??? which were relied upon by the learned counsel for the appellants which, in my opinion, do not support the contention urged by him.
42. Learned counsel for the respondents, however, drew my attention to certain decisions with ??? to the meaning of cause of action. It is unnecessary to refer to those decisions because, in substance, there are no two opinions with regard to the meaning of the phrase “cause of action” in general.
43. It is, however, relevant to refer in this connection to a passage from Halsbury's Laws of England where that learned author after stating that cause of action means every fact which is material to be proved to entitle the plaintiff to succeed, and that every fact which the defendant would have right to traverse forms an essential part of the cause of action, which accrues upon the happening of the latest of such facts, proceeded further to expound the point as follows:
“It may, however, be that, upon the true construction, of a given statute the expression ‘a cause of action’ ought to bear a narrower interpretation and be restricted to the popular meaning indicated above.
Thus after several conflicting decisions upon Section 18 of the Common Law Procedure Act, 1852, the Courts of Queen's Bench and Common Pleas differing upon the point, it was finally held by a majority of all the Judges that the expression in that section must be treated as bearing such narrower interpretation.”
44. I have thought it necessary to refer to the opinion of Lord Halsbury upon this point for the obvious purpose that the expression ‘cause of action’ may have to be construed slightly differently in regard to O. 9, R. 9. It is no doubt true that this has not been the subject-matter of any decision but even Sir Fazl Ali C.J, in the case of — ‘A.B & Co. Ltd. v. District Board, Gaya*’, AIR 1947 Pat 134 (E), stated that cause of action means ordinarily the entire bundle of facts and it is not that in every context necessarily it means, the same thing.
45. While O. 9, R. 9, lays down the disability in respect of dismissal for default, S. 2, Cl. (2) of the Code defining a decree states that the word ‘decree’ shall not include any order of dismissal for default. It is clear, therefore, that dismissal for default cannot have the effect of res judicata, and yet O. 9. R. 9 of the CPC, lays down the disability that a suit shall not be brought upon the same cause of action, Learned counsel for the appellants contended that the distinction is there because O. 9, R. 9, tends to provide a species of estoppel although such an order would not be res judicata.
46. In my opinion, however, the meaning of cause of action as understood in the context of O. 9, R. 9, may be the narrower meaning as referred to by Lord Halsbury, because it is obvious that when the Legislature provides in S. 2, Cl. (2) that a dismissal for default shall not operate as a decree and yet provides a disability by way of prohibiting a fresh suit for the same cause of action, the intention is to leave an intermediate stage between the two conditions.
47. That is only intelligible in the light of giving a narrower interpretation to the expression “cause of action” in this connection. The point, however, is not of much importance (although I am personally inclined to hold that the expression ‘cause of action’ as used in O. 9, R. 9, should be given the narrower meaning) because the point is covered by the decision of the Judicial Committee in the case of — ‘Mt. Chand Koer v. Partab Singh’, 15 Ind App 156 (PC) (F).
48. That was a case under Ss. 102 and 103 of Act 10 of 1877 which correspond to O. 9 Rr. 8 and 9 of the Code of 1908. Their Lordships of the Judicial Committee in that connection held that the second suit was not barred. The facts briefly stated were that the plaintiffs brought a suit for a declaration that certain mortgages and sales intended to be executed by a widow Mt. Chand Kour were not binding upon them as reversioner of the estate of Kalian Singh, the late husband of Mt. Chand Kour. That suit was, however, dismissed.
49. There was another suit instituted by the plaintiffs after the execution of a deed of gift by the widow in favour of certain persons. Their Lordships of the Judicial Committee upheld the decision of the Punjab Chief Court to the effect that the second suit was not barred because the of action was not the same. Then Lordships observed on this point as follows:
“The provisions of Ss. 102 and 103 of Act 10 of 1877 require therefore to be considered. The dismissal of a suit in terms of S. 102 was plainly not intended to operate in favour of the defendant as rs judicata. It imposes, however, when read along with S. 103, a certain disability upon the plaintiff whose suit has been dismissed.
He is thereby precluded from bringing a fresh suit in respect of the same cause of action. Now the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff.
It refers entirely to the grounds set forth in the plaint as the cause of action, or in other words to ??? media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.”
50. The second suit was held to be maintainable on the ground that the first suit was instituted for a declaration when the widow intended to execute certain documents to alienate the estate of her husband Kalian Singh, and the second suit was instituted when she actually made the alienation.
51. If the contention of learned counsel for the appellants wore to prevail, it is obvious that the facts to be established in the subsequent suit would be the same as the facts to be established in the first suit, because the main question in either suit would be whether the widow Chand Kour had the light to make the alienation which she was out to do.
52. In the subsequent suit, when she did alienate, the same facts would have to be proved, the only additional factor being the factum of the execution of the documents themselves. Their Lordships, however, held that the plaintiff had a different cause of action in the subsequent suit based on the execution of the documents, although the essential facts in both the suits would cover the same ground to a considerable extent.
53. It was laid down further that the cause of action in the subsequent suit as set forth in the plaint did not refer at all to either sale or mortgage which was alleged in the plaint of the previous suit as the subsequent suit was based on the footing that the widow had made a de praesenti gift to the third party.
54. Learned counsel for the respondents in this connection drew my attention to the cases of the various High Courts in India dealing with the dismissal of a suit for partition for default under O. 9, R. 8, and the institution of a fresh suit for partition in respect of the self-same property. The contention raised on the point was that it has been consistently laid down that the bar of O. 9, R. 9 of the CPC, does not arise in a suit for partition, because the cause of action to claim a partition is a recurring right available to the plaintiff who is a co-owner of the property sought to be partitioned.
55. If that is so, the present case also has the characteristics of the same analogy although the previous was a suit for declaration of title and joint possession after, an adjudication that the rejection of the plaintiffs prayer for mutation of his name in the Collector's register was illegal, or, at any rate, could not be binding upon him. The plaintiff, therefore, holding the interest of a co-sharer to the extent of -/11/5 dams would as well have instituted a suit for partition when he instituted a suit for declaration of title and joint possession after an adjudication of the effect of the rejection of the prayer for mutation of his name.
56. It is correct, no doubt, to say that, so far as partition suits are concerned, the principle is well-settled that the cause of action in fact is a recurring one as held in the cases of — ‘Bisheshardas v. Ram Pershad’, 28 All 627 (G); — ‘Madhura Gramani v. Sesha Reddy’, AIR 1926 Mad 1018 (H), and — “Thayyan v. Kannikandath Kizhe’, AIR 1935 Mad 458 (I).
57. Learned counsel for the appellants, however, urged in reply that a suit for declaration of title, which in substance was the plaintiff's previous suit should not be treated as a suit for partition. The principle of the above cases of partition suit could only be available to the plaintiff if in fact he had chosen to Institute a suit for partition. Instead, he brought a regular suit for declaration of title which was dismissed for default, and as such the analogy of a partition suit cannot be raised in the present context.
58. In my opinion, the answer to this contention on behalf of the appellants is found in the fact that whenever a co-sharer brings a suit for being confirmed in joint possession it is a suit which could as well have been instituted by him for partition, ??? is merely an accident that the plaintiff on a particular occasion thinks it proper to bring a suit for confirmation of joint possession and subsequently finding the suit dismissed for ??? under O. 9, R. 8 of the CPC, or finding it difficult to continue in joint possession with his co-sharer, thinks it proper to institute a suit for partition. The Principle, therefore, in either case, in my opinion ought to be the same.
59. The view was expressed in a decision of the Lahore High Court in the case of — ‘Mt. Khairan v. Ata Mohammad’, AIR 1939 Lah 148 (J). That was a case, no doubt, under O. 23, R. 1 of the CPC, but the principle involved in either case in the same as cl. (3) of O. 23, R. 1, lays down that where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-r. (2), he shall be liable for such costs as the Court may award and sh be precluded from instituting any fresh suit in respect of such ‘subject matter’ or such part of the claim.
60. The expression ‘subject-matter’ if anything, is even wider than the expression ‘cause of action’; because whereas O. 23, R. 1, Cl. (3), prohibits the institution of a fresh suit in respect of the same subject-matter, O. 9, R. 9, refers to a cause of action and yet, it must be noted that, a fresh cause of action may arise in respect of the same subject-matter.
61. Apart from that, however, even in respect of O. 23, R. 1, cl. (3) the suit which was withdrawn without the permission of the Court was one for a declaration that certain share in the property sold by the decree-holder was the plaintiff's property and hence not liable to be seized in execution.
62. Subsequently, however, a fresh suit for partition of that property was brought and O. 23, R. 1, was pleaded as a bar. It was held, however, that it could not operate as a bar. The observation made in the decision was:
“The first suit was brought for a declaration at the time that the property was in the hands of a third party. The property has since returned to the possession of the family and that seems to me a sufficient ground for the plaintiff now to wish to have it partitioned.
The only real objection that counsel for the respondents was able to raise was that this was a new case set up for the appellant in second appeal, but on referring to the judgments of the Courts below and also to the grounds of appeal in the lower Appellate Court, I cannot find that this is a new case.”
63. Reference was made in that connection to the case of — ‘Ali Muhammad v. Karim Baksh’. AIR 1933 Lah 943 (K), where also a suit for declaration was brought and withdrawn without permission and a second suit for possession was held maintainable on the ground that the cause of action was different and, therefore, the subject-matter was also different.
64. It is true that the facts, of the two Lahore cases referred to above can be distinguished, but there is no doubt that the two decisions proceed upon the principle that when a suit for declaration of title is brought and withdrawn without permission no bar will arise when subsequently a suit for partition or possession is brought, because the cause of action in the subsequent suit is not the same as the cause of action in the previous suit.
65. In my opinion, the principle laid down in the above case applies to the facts of the present litigation as well. Here also the first suit was for an adjudication with regard to the order of the Land Registration Department and the subsequent suit is for partition.
66. On general principles as well, it is obvious that the suit for declaration of tide and the consequential relief proceeds on the ground that the plaintiff prays to the Court to adjudicate upon his title and then to give the consequential relief, which may be in the nature of confirmation of possession, recovery of possession or injunction or whatever other relief may be relevant.
67. In the subsequent suit for partition in respect of the same property, the plaintiff tells the Court “I have title, I have possession: only carve out a share for me”. Therefore, the scope of a title suit is patently different from the scope of a suit for partition. As a matter of fact, a suit for partition may fail where the plaintiff does not succeed in proving unity of title and possession.
68. Unlike that, in a title suit, the Court has to consider the evidence to find the plaintiff's title: and when there is a prayer for confirmation of possession or recovery of possession, for injunction or any allied relief, the Court will have to enter into the question of plaintiffs' subsisting title within the period of limitation as well.
69. Learned counsel for the appellants has brought to my notice a decision of the Calcutta High Court in the case of — ‘Loke Nath Singh v. Dhakeshwar Prosad Narayan Singh’, AIR 1915 Cal 357 (L), which not only lends no support to his contention but actually is consonant with the view I have expressed; because it was held in that case that where the plaintiff fails to prove that he has possession actual or constructive of any share of the property, he is not entitled to maintain a suit for partition.
70. Where, however, the plaintiff is able to prove his actual or constructive possession, it cannot be urged that he cannot maintain a suit for partition. Learned counsel for the respondents also relied upon the case of — ‘Asia Bivi v. Sehu Mohamed Rowther’, AIR 1920 Mad 710 (M), which was the case of the daughters in a Mohammedan family instituting a suit for a declaration that their mother purporting to be their guardian had no right to alienate their share in the plaint properties, which was dismissed for default; but a subsequent suit filed by them for partition of their share in the family properties was yet held to be maintainable.
71. In my opinion, the principle of that decision also as being on all fours with the Lahore decisions must be accepted as applicable to the present case, and it must be held that the contention on behalf of the appellants with regard to O. 9, R. 9 of the CPC, operating as a bar is without substance. For the reasons set out above, it must be held that the appeal has no merit and is dismissed with costs.
K.S.B
72. Appeal dismissed.