Defendants in a partition suit are not bound to ask for a decree for possession by dividing their share of properties by metes and bounds, and their failure to do so does not bar them from filing a subsequent suit for partition and possession of their share.

( 1 ) THE only question in the second appeal is whether O. S. No. 17 of 1947 filed by the appellants in the Court of the District Musif of Bellary is maintainable in view of a prior decision in O. S. No. 108 of 1935, a suit between the same parties.

( 2 ) THE facts relevant to the question raised may be briefly narrated. The plaintiffs and defendants 1 to 8 were the joint owners of the plaint schedule property. Two of the co-owners Lingappa and Mangamma, filed O. S. No. 108 of 1935 on the file of the District Munsifs Court of Bellary, for recovery of possession of their one-sixth share in the plaint schedule property. To that suit, Mandavaliah, the predecessor-in-interest of the second plaintiff in this suit, was added as the second defendant and Mallayya, the first plaintiff herein, was added as the fifth defendant in the other suit. The other sharers were also added as defendants. 9th defendant in this suit is the son the 11th defendant in O. S. No. 108 of 1935. 10th defendant in this suit is the brother of the 12th defendant in that suit, and the 11th defendant in this suit figured as the 13th defendant in the earlier suit. They were added as parties claiming title to a share in the joint property. On 15. 6. 1937 the learned District Munsif held that the plaintiff (in O. S. No. 108 of 1935 was entitled to a decree for recovery of possession of one-sixth share in the suit land with mesne profits. Pursuant to that judgment, preliminary decree was made ; in due course, a final decree was passed. The final decree reads : "this court doth order and decree that the plaintiffs be and (are hereby) entitled to recover possession of share "a" marked in the plan hereto attached, i. e. , in Survey No. 116 mentioned in the schedule hereunder ; that as regards mesne profits, past and future, and suit costs up-to-date of the preliminary decree passed in this suit on 15. 6. 1937 shall stand and that the defendants do pay plaintiffs the sum of Rs. 12-9-0 for their costs of this final decree. " It is apparent from the decree that no relief was given in favour of any of the other defendants. To enable the Court to pass the decree, the Commissioner divided the properties in the manner shown in the plan attached to the decree. The present suit is filed by the successor-in-interest of the second defendant in the other suit (2nd plaintiff) and by the fifth defendant in that suit (1st plaintiff) for partition and possession of their share in the plaint schedule property. The learned District Judge dismissed the suit on the ground that the present relief should have been asked by the plaintiffs in the other suit, and that the cause of action was one and the same in both the suits. Hence the above second appeal. The question is whether the present plaintiffs who are defendants in the earlier suit. ought to have asked for a decree for possession by dividing their share of properties by metes and bounds. In a partition suit, though the defendant have got the option to ask for such a relief and obtain the same, they are not bound to do so. When they did not exercise their option to ask for partition of their share, I do not see how the decree in the earlier suit would be a bar to the maintainabillity of the present action. Mr. Bhujanga Ral, the learned counsel for defendants, strongly relied on the decision in -- Sethurama Saheb v. Chotta Raja Sahib, AIR 1918 Mad 751 (A ). There the plaintiff filed an earlier suit for partition of the family properties and obtained a decree therein. Subsequently, he filed another suit for partition of properties omitted in the earlier suit. The learned Judges held that the second suit was not maintainable. In so holding, they observed that the cause of action for partition was one and the same and once it had merged into a preliminary decree and final decree, a second suit for partition would not lie. I do not see how that case has any bearing on the question to be decided in the present case. There a p