A subsequent suit for partition of joint family property is maintainable if the plaintiff omitted to include a property in the previous suit by mistake.

Raj Kishore Prasad, J.

1. This appeal by defendants 2 and 3 arises out of a partition suit. The appeal is from the judgment of the learned Subordinate Judge of Purulia decreeing the plaintiffs suit tor partition in respect of a moiety shave in Schedule I and one-third share in Schedule 2 properties of the plaint.

2. Only two points have been pressed in support of the appeal by Mr. S. K. Sarkar: first, that the plaintiffs share should be one third, and not a half in the Schedule 1 property, and, secondly, that the present suit was barred under Order II rule 2 Sub-rule (2) of the Code of Civil Procedure.

3. For a proper decision of the two points raised to the appeal, it is necessary to state the material facts of the case:

4. There was one Ram Sunder Sao who had two wives, Basudi and Biranchi Kumari. From Basudi, Ram Sundar had four sons, namely, Mahant Ram, who died issueless; Durga Prasad, husband of defendants 1 and 2; Kalicharan, husband of Daulat Kumari, who died issueless before the institution of the present suit and, Devicharan alias Chutu, husband of the plaintiff. Ram Sunder through his wife, Basudi had also two daughters, who are defendants 3 and 4 to the present litigation. Ram Sunder got no issue from his second wife, Biranchi Kumari.

5. Previous to the present suit for partition another suit for partition was brought by the present plaintiff against the two widows of Durga Prasad and Daulat Kumari, the widow of Kali-charan who was then alive. At the time of the previous partition, Mahant Ram, one of the four sons of Ram Sunder, died issueless, and, therefore, the suit was confined to the heirs of the three brothers, namely, Durga Prasad, Kalicharan and Devicharan alias Chutu, the three remaining sons of Ram Sunder Sao. In that partition suit admittedly plot No. 1194, which is Schedule 1, and, item No. C of Schedule 2, of the present suit were not the subject matter of partition and were not included in the previous suit for partition. The previous suit for partition brought by the plaintiff was decreed on 28-1-1946, as will appear from the decree of the previous suit Ext. G(a). The present suit for partition was brought on 26-2-1953, claiming partition of Schedule 1 and also item C of Schedule 2 of the properties under partition which were not included in the previous partition suit.

6. The suit was contested by defendants 1 and 2 and also by defendants 3 and 4, but the written statement filed by defendants 3 and 4 was rejected by the court below. Before the learned Subordinate Judge also the question as to whether the present suit for partition was barred in respect of Schedule 1 and item C of Schedule 2 properties of the plaint in view of the decree of the previous partition suit was raised, The learned Subordinate judge held that these two properties were not included in the previous partition suit by mistake and, therefore, the present suit for partition was maintainable. He further found that the share of the plaintiff in Schedule 1 was one-half, and not one-third, as contended by the appellants. He accordingly decreed the plaintiffs suit for partition as mentioned earlier.

7. As regards the first contention regarding the share of the plaintiff in Schedule 1 of the plaint, I have no manner of doubt that the decision of the court below is correct. Apart from the reason given by the learned Subordinate Judge, Mr. J. M. Ghosh, who appeared for the respondents, put forward some other grounds in support of the finding of the learned Subordinate Judge, and, in my opinion, those grounds are quite substantial. In the Khatian (Ext. 9), in respect of plot No. 1194, under Khata No. 86, which is Schedule 1 of the plaint, in the remarks column Biranchi Kumari Dasi, widow or Ram Sunder Sao and his second wife, is recorded to be entitled 8 annas share of rent of lac bearing trees. In paragraph 4 of the plaint the plaintiff specifically averred that Schedule 1 was in possession of the plaintiffs husbands step-mother,