JUDGMENT :- This is a plaintiffs suit (appeal?) against a decision of the lower Court dismissing the plaintiffs suit for partition of four plots in which the plaintiff claimed that he had under proprietary rights. The plots in dispute are Nos.725, 730, 739 and 856. A small pedigree will help in understanding the facts of the case.

2. The family was joint and in the year 1913 Kunj Behari filed a suit No.16 of 1913 against the sons and grandsons of Ram Autar, Ram Autar having died, for a partition. The plaintiff alleged that he formed a joint Hindu family with the defendants and the properties in suit were joint family properties. The suit was decreed on 28-4-1913, and the plaintiff was given a decree for partition of a one-half share in the properties specified in the first list. It may be mentioned that the contesting defendants had denied that the family was joint and had pleaded that Ram Autar had separated and that they were in adverse possession of the properties in the first list.

3. Plot No.856 was included in the first list and the plaintiff was given a decree for a half share in the said properties. The other items in that list were partitioned but somehow this plot was left out with the result that in the final decree for partition plot No.856 was not mentioned at all and it was not divided. The plaintiff never got the decree amended nor did he ever get possession of the plot. On the question of possession learned Munsif held as follows :

"The plaintiff has utterly failed to prove possession within limitation."

Both the Courts, however, by reason of the fact that the plaintiff was a co-sharer, expressed the opinion that the defendants had to prove ouster and, in the absence of proof of ouster, adverse possession was not established even though they may have remained in possession of the plot for a long time. The plaintiffs claim with respect to this plot was, however, dismissed by reason of the provisions of S.47, Civil P.C.

4. Learned counsel has urged that the plaintiff had a recurring cause of action for partition and that the mere fact that his client had not taken advantage of the previous partition decree did not debar him from filing a fresh suit for partition. If the plaintiffs title to the property had been recognised and he had been in actual possession of the plot he might have had a recurring cause of action, but his suit for partition in 1913 was based on title and he got a decree. On the same cause of action and on the basis of the same title he cannot now bring a separate suit. I am not inclined to agree with the lower Courts that in the circumstances of the case set out by them in their judgments the defendants could not be deemed to have prescribed a title as against the plaintiff by lapse of time. Even in the suit of 1913 the defendants had claimed that they were in adverse possession of the property. Their plea no doubt failed and the suit was decreed, but even after the decree they remained in possession and they have been in possession from 1913 right upto the date when the suit was filed in 1945. In my view the plaintiff had no right to bring a second suit and his claim in respect of this plot was rightly dismissed.

5. As regards plot No.739, the plaintiff claimed that this was joint family property as it had been purchased by Ram Autar on behalf of the joint family under a sale deed Ex.A1, dated 6-1-1883. The lower Courts have recorded a finding that this plot is not included in the sale deed and that the plaintiff had failed to prove that it was joint family property. This is a finding of fact. The plaintiffs claim with respect to this plot must, therefore, also fail.

6. As regards the two plots Nos.725 and 730, the plaintiffs suit had been dismissed by reason of the provisions of O.2, R.2, Civil P.C. Learned counsel has urged that the plaintiff was entitled to a partial partition and that the mere fact that he had left out some properties in the previous claim his right to a share therein and a righ

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