Judgement

R. N. MISRA, J. :- This is an appeal by the plaintiffs (the original plaintiff having died, his legal representatives) in a suit for declaration that the sale deed dated 27-9-1958 executed by defendant No. 1 in favour of defendants 4 and 5 is fraudulent and does not confer title on the transferees. Their claim was accepted by the trial Court, but has been negatived by the lower appellate court. Hence the plaintiffs are in second appeal against the reversing judgment.

2. A short genealogy would be useful to indicate the mutual relationship of the parties.

The suit property is claimed to be the joint family property of the plaintiffs and defendants 1 to 3. In 1948, the defendant No. 1 executed a will with the ill motive of bequeathing all the properties to defendants 2 and 3. The plaintiff instituted T. S. 2/49 for partition of the ancestral lands located at Angapada. That suit was decreed and the decree was affirmed even by this Court. On the plea that the properties now in the suit which are located at village Turada are also the joint family properties and have been left out of partition on the earlier occasion, the present suit has been filed. It is claimed that on 27-9-1958 the defendant No. 1 executed the sale deed for the suit land in favour of defendants 4 and 5 which is a void transaction. The plaintiffs claim that they have their 1/4th interest in the suit lands.

3. The defence of defendants 1, 2 and 3 jointly is that the suit is barred both under Section 11 and under Order 2, Rule 2, Civil Procedure Code. The suit property is not the joint family property, but it is the self-acquired property of defendant No. 1. The plaintiff is not in possession of this property for more than 12 years and as such his present suit is barred by limitation.

4. The learned trial Judge came to hold that the suit lands were ancestral joint family property; the suit was not barred under Section 11 nor under Order 2, Rule 2, Civil Procedure Code; the suit was also not bad on the theory of partial partition. He further found that the sale deed dated 27-9-1958 in favour of defendants 4 and 5 was not binding on the plaintiffs and he accordingly decreed the suit.

5. On appeal by the defendants, the learned appellate Judge affirmed the findings of the trial Court that the suit land was the joint family property. He further found that the property under Ext. 8 was the self-acquisition of Achuta and was not liable for partition. He, however, came to find that the suit was barred under Order 2, Rule 2, Civil Procedure Code and was also barred by limitation.

6. In view of the concurrent finding in the courts below that the property is the joint property and in view of the admitted status of the plaintiff as a co-sharer, normally relief of partition could be granted.

7. The only stumbling block in the way in the opinion of the lower appellate Court is that the present claim is barred under Order 2, Rule 2, Civil Procedure Code. The single point for determination in the second appeal, therefore, is as to whether the present claim for partition is barred under Order 2, Rule 2, Civil Procedure Code. Order 2, Rule 2, Civil Procedure Code reads thus :

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion omitted or relinquished.

(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation: ......................"

8. In a suit for partition in respect of a co-sharer and in respect of a coparcener a disti