The right to enforce partition is a continuous right, and the bar under Order 9 Rule 9 of the Code of Civil Procedure would not apply unless the causes of action are identical in substance.

Kuldip Chand Sood, J.:—The substantial question of law which calls for answer is : "Whether second suit for partition is precluded under Order 9 Rule 9 of the Code of Civil Procedure where an earlier suit for partition was dismissed in default under Order 9 Rule 8 of the Code of Civil Procedure?"

2. In order to appreciate controversy, few facts may be noticed : Prabha Ram, Sant Ram, Relu Ram and Brahm Dass were sons of one Lakhoo Ram. In November, 1981 Sant Ram and Prabha Ram laid a suit before the trial Court for partition and separate possession of a three storeyed building situate in Khasra No. 264 at Lower Bazar, Solan, in the District Solan, claiming that plaintiffs Sant Ram and Prabha Ram had l/4th share each and the defendants Relu Ram and legal heirs of Braham Dass, the defendants, had also l/4th share each in this property. The plaintiffs wanted to separate and wanted that property should be partitioned. This suit was resisted by the defendants. However, the suit was dismissed in default on 2nd July, 1984 under Order 9 Rule 8 of the Code of Civil Procedure. It appears that an application for restoration of the suit was filed by the plaintiffs on 7th July, 1984. This application was withdrawn and dismissed, as such, on 19th June, 1985.

3. Plaintiffs, respondents herein, filed another suit for partition of the property in dispute on 21st September, 1985 on the similar grounds against the legal heirs of Relu Ram and Brahm Dass, hereinafter referred to as the defendants, claiming that the plaintiffs were the owners in possession to the extent of l/4th share each and legal heirs of Braham Dass and Relu Ram also to the extent of l/4th share respectively.

4. The suit was resisted. Allegations were controverted. An objection was taken that suit was not maintainable in view of the principle of res judicata as an earlier suit filed by the plaintiffs for partition was dismissed after settlement of the issues and the application for the restoration of that suit was too dismissed. Learned trial Judge under Issue No. 3 held that the suit was not barred by the principle of res judicata as well under Order 9 Rule 9 of the Code of Civil Procedure as cause of action for a suit for partition is "recurring one", therefore, provisions of Order 9 Rule 9 of the Code of Civil Procedure would not apply in the case. On merits it was held that plaintiffs were not proved to be joint owners of the suit property to the extent of half share as claimed by the plaintiffs. The suit was, accordingly, dismissed.

5. Dis-satisfied, plaintiffs carried an appeal before the learned District Judge, Solan. This appeal was allowed by the learned Additional District Judge, Solan, on 24th June, 1994. The first appellate Court held that appellants and proforma respondents in the Civil Appeal were co-owners in the suit property to the extent of half share and were entitled for separate possession and partition. However, keeping in view the nature of the property, it was not found convenient to divide the property in equal share. The learned Additional District Judge decreed that the property be put to public auction and half of the sale proceeds be given to the plaintiffs and the other half to the respondents in equal share.

6. Aggrieved, the defendants have approached this Court in Regular Second Appeal. The appeal was admitted on 8th November, 1994 on the following substantial questions of law: (1) Whether the suit is barred by the principle of res judicata? (2) Whether the learned lower appellate Court erred in law in accepting the additional evidence?

7. So far the question of suit being barred by principle of res judicata is concerned, such principles are not attracted in the present case. There is no scope of dispute that an order made under Order 9 Rule 8 of the Code of Civil Procedure would not amount to res judicata, as such, a suit cannot be said to have been heard and finally decided by the order of dismissal made for the non-appearance of the plainti