1. This is an appeal by the original defendant no. 4 challenging the judgment and decree passed by the Additional District Judge, Amalner on 15-4-2006 thereby partly allowing the appeal preferred by the appellants/original plaintiffs.

2. Appellant/original defendant no. 4 is purchaser of the suit property from defendant no. 1 deceased Harkchand Sancheti. Regular Civil Suit no. 80/1980 came to be instituted by the plaintiffs seeking partition and possession of the agricultural land gat no. 93 admeasuring 4 H 10 R situated at village Dapore, Tq. Amalner, Dist. Jalgaon contending that the said suit property is joint family property of the plantiff, defendant no. 1 and Defendant no. 2 Uttamchand, and they were jointly cultivating the said land. It is contended that said suit claiming partition and separate possession came to be dismissed in default. Miscellaneous Application no. 5/86 for restoration of said suit came to be rejected by trial court on 27-1-1988. Miscellaneous civil application challenging order in Miscellaneous Civil Application no. 5/86 also came to be dismissed on 8-9-1997. After first round oflitigation was over plaintiff again demanded partition by serving notice on 23-2-1988. However, the same request was not considered. Thereore he had to file instant suit being Regular Civil Suit no. 39/86. Defendant no. 4 who has purchased the suit property under sale-deed dt. 6-6-1980 from Harakchand has been added as party vide application at exh. 13. The plaintiff claims 1/3rd share in the suit property.

3. The legal representatives of deceased Harakchand resisted the suit by filing written statement. It is their contention that deceased Harakchand was exclusive owner of the suit land and as such the plaintiff had no right, title or interest in the suit land. It is further contended that the suit bearing Special Civil Suit no. 5/62 was filed in the court of Civil Judge, S.D., Dhule and in pursuance to the agreement arrived at between the parties in the said suit, the property was delivered in possession of deceased Harakchand. It is contended that deceased Harakchand had faught litigation and obtained possession of the suit property in execution of the darkhast. It is denied that the property belongs to joint family. However, it is contended that deceased Harakchand was the exclusive owner and possessor of the suit property.

4. The trial court framed several issues. So far as the issue in respect of ancestral nature of the property is concerned, the trial court as well as the appellate court were concurrent on the point that the property is joint family property. So also there is finding recorded by the courts below that the defendant Harakchand had not acquired ownership of the suit property by virtue of the decision in previous litigation. However, the trial court dismissed the suit holding that the defendant no. 4 is a bonafide purchaser for value without notice. The said judgment and decree in respect of dismissal of suit was subject matter of challenge before the lower appellate court. The lower appellate court has reversed the decree holding that defendant no. 4 cannot be treated to be bonafide purchaser of the property. By maintaining all other findings recorded by the trial court, the lower appellate court decreed the suit to the extent of 1/3rd share allottable to the plaintiffs.

5. Shri Warma, learned counsel for the appellants has vehemently contended that in view of dismissal of previous suit which was filed by plaintiff in default, and also, dismissal of restoration application by the Additional District Judge, Amalner, the instant suit filed by the plaintiff is barred by virtue of provisions of Order 9 Rule 9 of the Code of Civil Procedure. The lower appellate court has held that the cause of action in respect of partition suit is continuous. The appellant has placed reliance on the judgment betwee