1. In this second appeal filed by the original plaintiffs, the following substantial question of law arises for consideration:

Whether dismissal of suit for partition in default under Order 9 Rule 9 of the Code of Civil Procedure would bar the subsequent suit for partition?

2. For answering the aforesaid substantial question of law, it would be necessary to refer to certain relevant facts. The suit property is half portion of House No.509 situated at the main road, Sitabuldi Nagpur. The predecessor of the plaintiffs Rambhau entered in to an agreement to purchase the suit property with one Tarachand on 27-1-1968. Tarachand was the joint owner of the suit house along with his brother Rajaram. As Tarachand did not execute the sale deed, Rambhau had filed R.C.S. No.132 of 1970 and this suit for specific performance was decreed on 28-6-1971. This decree was executed and on 6-9-1975, a sale deed for the aforesaid property was executed in favour of Rambhau. As the suit premises was in possession of a tenant Premnath, Rambhau filed R.C.S. No.132/1976 for his ejectment. This suit was decreed on 27-2-1981. The tenant Premnath challenged this decree and his appeal came to be allowed. The second appeal preferred by Rambhau was dismissed on the ground that Rambhau had purchased a half undivided share and in absence of any partition he could not have become owner of any defined portion of the house. Thereafter Rambhau filed the present suit on 29-4-1988 praying for partition and separate possession of the suit property.

3. The defendant filed his written statement and denied the case of the plaintiff. It was pleaded that the defendant’s brother who was the plaintiffs vendor Tarachand had filed suit for partition of the suit property being Special Civil Suit No.136 of 1968. This suit came to be dismissed in default on 24-11-1970. The application for restoration was also dismissed on 8-3-1972 and, therefore, the suit was barred under provisions of Order IX Rule 9 of the Code of Civil Procedure, 1908 (for short the Code). Rajaram claimed exclusive ownership of the suit property.

4. The trial Court after considering the evidence on record held that the plaintiff had failed to prove that Tarachand and the defendant – Rajaram were joint owners of the suit property. It further held that Rajaram had perfected his title by way of adverse possession and, therefore, the plaintiff was not entitled for any relief. The suit accordingly was dismissed on 1-8-1998. The plaintiffs challenged the aforesaid judgment and the appellate Court recorded a finding that it was proved that the suit property was jointly owned by Tarachand and his brother Rajaram. It, however, held that in view of the dismissal of the suit for partition between two brothers, the present suit was barred under provisions of Order IX Rule 9 of the Code. Being aggrieved this second appeal has been filed.

5. Shri H. Chitale, learned Counsel for the appellants submitted that the suit for partition and separate possession filed by the legal heirs of Rambhau was not barred under provisions of Order IX Rule 9 of the Code. He submitted that the cause of action for filing the present proceedings was distinct from the cause of action for filing the earlier suit for partition by Tarachand. There were various properties that were the subject matter of suit for partition filed by Tarachand. In such circumstances, when the cause of action for the subsequent suit was distinct and the relief sought was only with regard to one of the properties belonging to the joint family, the bar under provisions of Order IX Rule 9 of the Code was not attracted. According to him, as per the provisions of Rule 9 of Order IX of the Code, only the plaintiff who had filed the earlier suit that was dismissed was precluded from filing the subsequent suit and a third party was not so barred. In any event, it was submitted that the right to seek partition gave a continuing cause of action and therefore, the present procee