The cause of action in a suit for partition is different from the cause of action in a suit for declaration of title and possession.

Misra, J.

1. This is a suit for partition. Plaintiff claims 11 annas 5 dams share in a tenure consisting of 12.94 acres of Lakhraj Abadi lands in village Yarpur, which he claims to have purchased from Jaglal Sah. According to the plaintiffs case, Jaglal Sah held a mortgage over this property from defendants 3rd party, who were defendants 14 to 19 in the action, under a mortgage deed dated 12-1-1926. Jaglal Sah brought a suit to enforce his mortgage dues, obtained a decree and in execution thereof purchased that property on 10-1-1940. The cause of action alleged by the plaintiff was that he demanded partition of his share on foot of his title, set out in the plaint, on 14-7-1947, which the defendants refused to comply with.

Accordingly, the plaintiff prayed for effecting a partition or the said tenure by metes and pounds and for the carving out of a specific takhta in respect of his share of 11 annas 5 dams ("knam), equivalent to 8 auuas 8 dams and 15 kowries pukhta in the said tenure. It may be stated that the plaintiff clearly averred in the plaint in para. 3 that after his purchase of the property by the sale deed from Jaglal Sah on 12-7-1942, the plaintiff has been in possession and finding the management of the property with his co-sharers difficult he had to call upon the defendants to partition, which they refused.

2. It may be stated that the defendants 1st party, admittedly, had six annas interest in the touzi; defendants 2nd party had four annas interest and the defendants 3rd party held the remaining six annas interest. Defendants 8 to 10 of the first party had 2 annas 8 dams 15 kowries equivalent to 3 annas 5 dams kham share in the six annas interest belonging to the defendants 1st party. It was alleged that defendants 8 to 10 enjoyed their share of the six annas interest belonging to the defendants 1st party as a result of an amicable partition between them and other members of the first party (defendants 1 to 7). On 3-6-1924, defendants 8 to 10 of the first party conveyed their interest under a deed of sale to defendants 3rd party who came to own and possess 8 annas 8 dams 15 kowries pokhta share.

This interest corresponds to 11 annas 5 dams of kham share as alleged and claimed by the plaintiff which was purchased at an auction sale by Jaglal Sah and was subsequently conveyed to him.

3. It may further be noted here that on 10-11-1944, plaintiffs application for mutation of his name before the Land Registration Officer, was dismissed for default. The plaintiff accordingly instituted Title Suit No. 85 of 1945 for a declaration that a cloud was cast upon his title as a result of the rejection of his prayer for mutation by the Land Registration Deputy Collector and as such he had to institute a suit for declaration of his title and possession. On 3-6-1946, this suit was dismissed for non-appearance of the plaintiff, under Order 9, Rule 8, Civil P.C. The plaintiff thereafter filed an application for restoration of the suit which was dismissed. An appeal preferred against it was also dismissed. The plaintiff then filed an application in revision against the order of the trial Court in the High Court which, however, was also disissed. The present suit was accordingly filed on 18-11-1947, by the plaintiff for partition of his share in Khewat No. 1 of this touzi bearing No. 2323.

4. The defendants plea was that the suit was not maintainable under the provisions of Order 9, Rule 9, Civil P.C. It was further fit to be dismissed as the plaintiff had no unity of title and possession over the suit land without which his claim for partition could not be decreed. The learned Subordinate Judge of Patna, who tried the case, held that the provisions of Order 9, Rule 9, Civil P.C., operated as a bar to a decree being granted to the plaintiff and, in view of the matter, dismissed the suit.

An appeal was taken against the decision of the learned Subordinate Judge which was disposed of by the learned Additional District Judge of