Withdrawn partition suits do not preclude subsequent partition actions; res-judicata is not applicable where the first suit was not decided on merits.

JUDGMENT :

ROHIT W. JOSHI, J.

1. The present second appeal arises out of judgment and decree dated 29.02.1992 passed by the learned Joint Civil Judge, Senior Division, Nanded dismissing suit for partition and separate possession filed by the present appellants, being Regular Civil Suit No.454/1990 as also against judgment and decree dated 12.07.1995 passed by the learned 3rd Additional District Judge, Nanded dismissing Regular Civil Appeal No.132/1992 preferred by the appellants/original plaintiffs against the judgment and decree passed by the learned Trial Court. Parties will be referred as "plaintiffs" and "defendants" in the judgment hereinafter.

2. Plaintiff Nos.1 to 3 are brothers and plaintiff no.4 is their mother. The defendant is paternal uncle of plaintiff nos.1 to 3. The father of the plaintiffs expired in the year 1976. The dispute between the parties pertains to half portion of agricultural land admeasuring 7 acres 4 gunthas out of land bearing Gut No.39 old survey no.23/A total admeasuring 15 acres 35 gunthas situated at Gangabet, Tq. & Dist. Nanded.

3. It is the case of the plaintiffs that in the year 1968, there was partition between their grand father (Datta), father (Shankar) and uncle (Manik), who is defendant herein. The plaintiffs contended that the suit property i.e. half portion of land bearing Gut No.39 admeasuring 15 acres 35 guntha was retained by grandfather Datta for his maintenance during his life time. The grandfather Datta expired in the year 1979. The plaintiffs have therefore filed suit for partition and separate possession, being Regular Civil Suit No.454/1990.

4. The defendants appeared in the matter and opposed the suit contending that land bearing Gut No.39 was partitioned between himself and his brother Shankar, who is predecessor of plaintiffs. He contended that although, the property was so partitioned, it continued to be in the name of their father Datta. The defendants thereafter contended that Shankar, brother of plaintiffs was suffering from T.B. and for the purpose of his treatment his half share in Gut No.39 was sold during his life time to one Babu Nagorao Thakur, vide sale deed dated 09.05.1973. The defendants then clarified that since the property was standing in the name of father Datta, the sale deed was executed by him, although the sale consideration was made over to Shankar, predecessor of plaintiffs. The defendants raised another contention that earlier the plaintiffs had filed suit for partition and separate possession with respect to the same property, being Regular Civil Suit No.666/1984, which was withdrawn unconditionally, and therefore, subsequent suit filed for the same relief was not maintainable.

5. The learned Trial Court framed issues on which the parties led their respective evidence. After hearing arguments of respective sides, the learned Trial Court has dismissed the suit, vide judgment and decree dated 29.02.1992. The learned Trial Court has held that the suit filed by the plaintiffs was barred by res-judicata in view of dismissal of earlier suit filed by them for the very same relief. As regards merits of the matter, the learned Trial Court has referred to the sale deed of the year 1973, in which while mentioning boundaries of the demised property, it was stated that on the northern side of the said property land owned by the defendant was situated. The learned Trial Court has held that the contents of the sale deed were sufficient to prove the defence of defendants that northern half portion of Gut No.39 was allotted to his share in the partition of the year 1968. In view of the said findings, the suit came to be dismissed.

6. As stated above, the pl