Shamsul Huda, J.:— I am of opinion that there is no merit in this appeal. The facts appear to be shortly these: In the year 1894 the defendant-appellant as plaintiff brought a suit for partition of two plots of land. The suit was wholly dismissed by the first Court, but, on appeal to this Court, there was a decree for partition of plot 1 only and the suit for partition in respect of plot 2 was dismissed on the ground that a third person had an interest in that plot and the suit could not go on in his absence. It may be mentioned here that plot 1 of this suit has nothing to do with the land in respect of which partition is claimed in the present suit. The defendant-appellant again as plaintiff brought a suit in the year 1903 for partition of a plot of land which covered an area of about 16 cottas. In this suit the Court of first instance passed a decree in favour of the plaintiff, but on appeal the suit was dismissed on the finding that only 8 cottas out of 16 cottas were purchased by the plaintiff and that she had no title to the western portion of the 16 cottas plot. Although the plaintiff's title to the eastern portion of the plot in suit was established, the entire suit was dismissed on the ground that so far as this eastern portion was concerned, there had been a previous partition. There was an appeal to the High Court, but that appeal referral to the western portion only with which we are not concerned. The present suit is confined to this eastern plot of 8 cottas. The plaintiff in the present suit was defendant in the two previous suits. The finding of the Court below is that this eastern plot of 8 cottas has been held jointly by the present plaintiff and the defendant, the plaintiff's share being 12 annas odd gundas and rhat of the defendant being 3 annas odd gundas. This finding, in my opinion, is lot open to any attack and I agree with the learned Judge of the trial Court that this property is joint. The only argument that has been advanced before us against the decree passed in this suit for partition of the eastern plot is that it being held in the previous suit of 1903 that there could be no partition of this dot as it had already been partitioned before, the matter is res judicata.
2. The judgment in that suit has been ??? before us, and it is clear that the learned Judge dismissed the whole suit for partition under a misconception.
3. As a matter of fact, the plot with reference to which there was a partition in the first suit was plot 1 in that suit, which has nothing to do with the land—the subject-matter of the present suit. Even if we were precluded from going behind the findings in the previous suit, I do not think that the contention of the appellant can be given effect to. Whatever may have been the state of facts at the time the second suit was tried, there can be no doubt upon the facts of the present case that as a matter of fact on the date this suit for partition was instituted, the parties were holding the plot of land jointly between them. That being so, I think it must be held that the plaintiff had a fresh cause of action to bring a suit for partition. In the case of Madon Mohon Mondul v. Baikanta Nath Mondul (1) it was observed by a Division Bench of this Court that the right to sue for partition, unlike other suits, is a continuing right incidental to the ownership of joint property. So long therefore that the property remains joint, it seems to me that notwithstanding the dismissal of the previous suit, the plaintiff had a good cause of action for bringing a fresh suit for partition. This view of the case is also supported by several other decisions cited by Sir Rash Behari Ghose for the respondent. He referred to three cases of the Allahabad High Court reported as Nasrat Ullah v. Majib Ullah (2), Bisheshar Das v. Ram Prasad (3) and T.G Mukerji v. Afzal Beg (4). In some respects there may be a distinction between these cases and the present cases but that distinction, in my opinion makes no difference regarding the maintainability of the present suit. The appeal is therefore dismissed with costs. We assess the hearing fee at five gold mohurs. The respondent is not entitled to any costs incurred by him in the preparation of the paper book.
4. Let the record be sent down without delay.
Richardson, J.:— I agree. As I understand the matter, the suit is based not on rights which existed antecedent to the previous suit, but on rights which are still subsisting. It is not the case that the result of the previous suit altered the mode in which the property was enjoyed so that the parties came to hold in severalty what they had previously held in common. On the contrary the possession continued to be a joint possession. Perhaps the cases nearest to the present are those of Thahore Becharji Ranaji v. Thahore Pujaji Vaktaji (5) and Bisheshar Das v. Ram Prasad .
5. I concur in dismissing the appeal.
V.B/R.K
6. Appeal dismissed.