A suit for partition dismissed for default under Order IX, Rule 8, Civil Procedure Code, does not bar a subsequent suit for partition as the right to enforce a partition is a continuous right which is a legal incident of a joint tenancy and which enures so long as the joint tenancy continues.

1. This is an appeal against the judgment & decree of Shri Gurcharan Singh, Senior Subordinate Judge, Gurgaon, dismissing the plaintiffs suit for possession by partition of certain immovable-property & for recovery of mesne profits by rendition of accounts.

2. The plaintiff Manohar Lal brought the suit against his brothers Onkar Das defendant No. 1 and Kidar Nath defendant No. 2 for partition of immovable property mentioned in schedules alif and be and certain plans attached to the plaint. He also sued for recovery of the amount of hiesne profits by rendition of accounts. He impleaded three other Dersons as defendants on the ground that they were cosharers in certain portions of the property in which the plaintiff and defendants Nos. 1 and 2 had also a share. The allegations made by the plaintiff were that the property sought to be partitioned belonged to the ancestors of the plaintiff and defendants Nos. 1 and 2 who were all cosharers in the same in equal shares, that the plaintiff was entitled to onethird of the property in suit, that it had become impossible to keep the property joint, and that the plaintiff was entitled to possession by partition of one-third of the property. The plaintiff also alleged that the defendants had been realising rents and profits of the property ever since the 2nd of January, 1932, i.e., the date pf death of Behari Lal, father of the plaintiff and defendants Nos. 1 and 2, and that the defendants were liable to render accounts and pay mesne profits to the plaintiff. The suit was contested by the defendants on various grounds, but for the purposes of this appeal it is not necessary to state all of them in detail. The only two grounds with which we are concerned in this appeal are as follows :

(1) that the plaint was not correctly valued for purposes of court-fee and jurisdiction; and

(2) that the present suit was barred by reason of the dismissal of the previous suit for the same relief on 21st February, 1947. The learned trial Court fixed the following preli- minary issues - (1) Whether the Suit is correctly valued for court-fee and jurisdiction ?

(2) Whether the present suit is barred by reason of withdrawal or dismissal under Order 9 Rule 8, Civil Procedure Code, of any previous suit between the parties ?

3. Whether the present suit is barred by res judicata or estoppel ? Issue No. 1 was decided in favour of the plaintiff and the decision on the same is not contested in appeal Issues Nos. 2 and 3 were decided against the plaintiff and his suit was dismissed on the basis of the said decision. Aggrieved against the same the plaintiff has come up to this Court in first appeal.

3. The only point that arises for decision in this case is whether the present suit is barred by reason of the order dated 21st February 1947 pas- sed in the previous case.

4. It appears that the present plaintiff filed a suit somewhere in 1946 for partition of the property now in dispute. The suit came on for hearing on the 6th January 1947 on which date the parties made certain statements in Court which were to the effect that if the plaintiff took a particular type of oath with gangajali in hand in the Ghanteshwar Mandir situate at Rewari and stated that Kidar Nath defendant was not adopted by Kanahaya Lal and that Behari Lal, father of the plaintiff, did not effect any partition of the immovable property in suit in 1886 as per writing produced by the defendants and that the signatures of Kidar Nath on the mortgage deed in favour of Lekh Ram executed by Behari Lal are in his own hand, then the plaintiffs suit may be decreed and each of the parties, that is the plaintiff and defendants Nos. 1 and 2 may be declared to have one-third share in the property in suit and it may be partitioned. It was further provided in those statements that if the plaintiff did not take oath the partition alleged by the defendants should stand and the share kept by Behari Lal for himself and which Smt. Bukhta- wari got on his death may