This is an appeal against an order of remand by the Subordinate Judge of Nellore. The District Munsif had held that the suit was barred under the provisions of Order IX, rule 9, and had dismissed it. The suit was one for the partition of certain property in which the plaintiff claimed a three-fourths share. In the year 1911 the plaintiff's assignor had brought a suit for obtaining joint possession of this three-fourths share and it had been decreed. In 1917 she filed a suit for partition of her share and separate enjoyment and that suit was dismissed under Order IX, rule 8. It is now contended for the appellant that the present suit, which is also one for partition, is barred under Order IX, rule 9. The Subordinate Judge has relied on several cases of the Allahabad High Court and on Madon Mohan Mondul v. Baikanta Nath Mondul(1), cases which dealt with suits for partition in families which were originally joint Hindu families, and the contention now raised is that these decisions must be deemed to be solely applicable to the case of joint Hindu families and cannot be applied in the case of joint owners or tenants-in-common.
In the first place, it must be observed that in most of these cases, although the family was a joint Hindu family, yet it had become divided in status prior to the suit. On principle it is difficult to see how any distinction can be drawn between joint tenants and tenants-in-common, for the right to partition belongs equally to each of them. In the present case, when the suit of the plaintiff's assignor was dismissed in 1917 she was relegated to her right of possession as joint owner and consequently 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 judicata and consequently, the present suit, which is based on the plaintiff's assignor's right of partition, is not barred by Order IX, rule 9.
The appeal is dismissed with costs.
K.R