Point of Law: A bar under Order-XXIII, Rule 1 (4) of C.PC. would operate only against the individual plaintiff and not against his successor in title.

JUDGMENT :

This is a Second Appeal by original defendants no.1 to 4 aggrieved by the judgment and decree passed by the lower appellate court reversing the judgment and order passed by the trial court which dismissed the suit filed by respondents no.1 to 8 who are the original plaintiffs, thereby decreeing the suit for partition and separate possession. The respondent nos.9 and 10 are the defendant nos.5 and 6.

2. At the stage of admission, the following substantial questions of law were formulated while directing a notice to be issued to the respondents, by the order dated 01-03-2018:

I. Whether the bar of Order II Rule 2 (3) of Civil Procedure Code attracts when the earlier suit filed for the same relief bearing R.C.S. No.261 of 1985 was withdrawn without seeking leave to file separate suit for the same cause ?

II. Whether the suit filed by the plaintiff was tenable on account of the non-inclusion of all joint family properties?

3. With the consent of both the sides, I have heard the Second Appeal finally on the aforementioned substantial questions and following additional substantial question:

III. Whether the suit was not maintainable in view of unconditional withdrawal of earlier suit bearing Regular Civil Suit No.261 of 1985 in view of the provisions of the Order-XXIII, Rule 1 (4) of the Code of Civil Procedure ?

4. For the sake of convenience, the parties are hereinafter referred to by their status in the suit. The plaintiffs averred that the suit properties Survey No.5/1+2A admeasuring 1 Hec. 24 Are and Survey No.5/1+2B admeasuring 40 Are were the ancestral and joint family properties. They came with following genealogy.

5. The plaintiffs claim through Ganesh, whereas the defendants claim through Mahadev, who were the real brothers inter se. They averred that Ganesh and Mahadev had jointly purchased land Survey No.5 admeasuring 4 acres from one Ramvilas Balaram Lohati on 26-06-1936. Since then they were jointly cultivating that land. Without there being any partition, Mahadev executed a conditional sale-deed dated 08-05-1978 in favour of defendant no.6, as a result the land Survey No.5 was divided into two pieces, which are nothing but the suit properties. Subsequently, Mahadev got the land reconveyed from defendant no.6 on 19-03-1982 and a Mutation Entry No.1844 was effected to that effect. However, Mahadev illegally got entered only his name to the suit properties and that entry was challenged in an appeal before the revenue authorities.

5. The plaintiffs further averred that they had filed Regular Civil Suit No.261 of 1985 for partition against Mahadev, however, due to oversight one of the suit properties had remained to be included and therefore, that suit was withdrawn with the permission of the court and the present suit was filed. Thus, they claimed that they have ½ share in the suit properties and prayed for separate possession.

6. Defendant no.1 contested the suit by written statement (Exh.21), which was adopted by defendant nos.2 to 5. Defendant no.6 did not file written statement. They disputed the genealogy and inter alia contended that one Ramchandra was the common ancestor. He was survived by two sons Shankar and Balwant. The plaintiffs have shown genealogy of the branch of Shankar only and the branch of Balwant has not been demonstrated with a view to grab his share. They further contended that apart from the suit properties there were several other joint family properties, some of which were ancestral properties i.e. an open space bearing Grampanchayat Property No.186 and land Survey Nos.15 and 20. Since the partition is being claimed only partially, the suit was not maintain