IMPORTANT POINT
The right to file a separate suit for partition in respect of a property not included in the original suit is not barred, and the principle embedded in Order II Rule 2 of CPC cannot be stretched to compel a defendant in a partition suit to make a counter claim.

JUDGMENT :

1. This is an appeal which arises out of a suit which had been instituted by one Revanamma seeking for partition in respect of certain properties, which were left out in the suit which had been filed by her sister Shantabai for partition in O.S.No.71/2011.

2. The Trial Court took the view that the suit being one for partition, the defendants stood in the same position as plaintiffs and therefore, the bar under Order II Rule 2 of CPC stood attracted as they had not chosen to include the suit property and the earlier suit had already been decided and the appeal was also dismissed. It accordingly proceeded to reject the plaint filed by Revanamma.

3. Being aggrieved, Revanamma preferred an appeal.

4. The Appellate Court, on consideration of the matter also came to the conclusion that though Order II Rule 2 of CPC did not bar the filing of a fresh suit for partition on afresh demand for partition being turned down after the previous suit filed for partition had been dismissed for non inclusion of all the properties, the plaintiff had agitated her right in the previous suit and had not whispered a single word about the left out properties and the suit of the plaintiff was hit by Order II Rule 2 of CPC and the rejection of the plaint was right. It accordingly dismissed the appeal.

5. As against this, the present second appeal has been preferred and the same has been admitted for considering the following substantial question of law:

“Whether the rejection of the plaint by the Trial Court as confirmed by the Appellate Court is justified on the proposition that the plaintiff could not have instituted a suit in respect of a property which had not included in the earlier suit for partition filed by her sister the defendant in O.S.No.71/2011, by reason of Order II Rule 2 of CPC?”

6. In a suit for partition, it is no doubt true that all the parties are considered as plaintiffs. However, this is because, in most cases, all the parties to the suit have an undisputed preexisting right in the suit properties and there is no dispute regarding title over the said properties and the suit would have been filed only to divide their preexisting rights in joint family properties by metes and bounds. However, that cannot lead to an inference that all the parties to a suit will have to be considered as plaintiffs for the purposes of Order II Rule 2 of CPC.

7. Order II Rule 2 of CPC[Suit to include the whole claim -1) every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action: but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

2) Relinquishment of part of claim-where a 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.

3) Omission to sue for one of several reliefs-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.] has been enacted basically to ensure that that a plaintiff files a comprehensive suit and includes all the claims that he is entitled to make against the defendant at the time of filing of the suit. This also ensures that a plaintiff does not file repeated suits against the same defendant on the ground that he had omitted to make a claim when filing the first suit. In essence, the underlying objective under Rule 2 is to prevent multiplicity of proceedings between the same parties.

8. As to whether this analogy can be applied to a defendant in the suit for partition would have to be examined. It is to be stated here that a defendant in a suit for partition is entitled to take up a plea in his defence that all the properties were not included and the suit would have to be dismissed. Nor