( 1. ) THIS is a second appeal by the defendants arising out of a suit for partition of a house.

( 2. ) PARTIES are inter-related being the descendants of the deceased Dhodiba, as would appear from the genealogical tree given below :-

( 3. ) DHODIBA had five sons, Baba Saheb, Amritrao, Yeshwantrao, Bala saheb and Baburao, the original Plaintiff in this case. Ali of them are now dead. Baba Saheb was the eldest son. Respondents No. 1 to 6 are the legal representatives of the deceased Baburao.

( 4. ) THE case of Baburao, the original plaintiff, as laid in the plaint, was that the parties were members of a joint Hindu family. The house in suit, bearing municipal No. 5/12, was the property of the joint family having been acquired by Dhodiba. The house has been in occupation of defendants No. 1 to 8, who are appellants in this case. As some of the defendants started making construction in the house in assertion of a hostile title in May 1962, Baburao instituted a suit for partition on 21-6-1962 claiming half share therein.

( 5. ) THE suit was resisted by the defendants appellants on a number of grounds. They denied that it was the self acquired property of Dhodiba and claimed to be in adverse possession thereof. It was further pleaded that in the year 1945, the plaintiff had filed a suit for partition of this very house which ultimately abated and, therefore, the present suit was barred. They also pleaded that the suit was barred by limitation.

( 6. ) THE trial Court held that the suit was not barred under Order 22, rule 9, Civil Procedure Code, but dismissed the suit on other grounds. In appeal, the learned Additional District Judge set aside the decree of the trial court and passed a preliminary decree for partition in favour of the plaintiff, holding that Baburao was entitled to half share in the suit house, which was the joint family property. Being aggrieved by this decision, the defendants have preferred this second appeal.

( 7. ) THE first point that was urged by Shri M. L. Gupta, learned counsel for the appellants, was that this suit is barred under sub-rule (1) of Rule 9 of order 22, Civil Procedure Code, as the earlier suit filed by the plaintiff for partition was dismissed as abated. It is not disputed that the plaintiff had, in the year 1945, instituted a suit for partition along with Yeshwantrao since deceased, claiming 2/3 share in the property, vide certified copy of the plaint dated 27-8-1945 (Ex. D-1 ). It is also not disputed that that suit ultimately abated. The question, therefore, is whether, in these circumstances, the present suit is barred. The trial Court held that the suit was not barred and it appears that this finding was not challenged in the first appeal because there is no reference to it in the judgment of the first appellate Court. However, since it is a question of law, I propose to consider it.

( 8. ) IN T. C. Mukerji v. Afzal Beg (A IR 1916 All. 1.), it was held that a fresh suit for partition is not barred even where an earlier suit was dismissed as compromised because the right to bring a suit for partition, like other suit, is a continuing right incidental to the ownership of joint property. This decision was followed by the Patna High Court in Dilo Rana v. Kunj Behari Prasad (AIR 1948 Pat. 244.), and it was held that the plaintiffs right to partition will subsist even after abatement of a previous suit for partition because a partition is a recurring cause of action so long as the property remains joint. A similar view was expressed by the Pepsu high Court in Devi Sahai v. Nanar (AIR 1955 Pap. 28. ).

( 9. ) IT is, therefore, clear that the right to bring a suit for partition is a continuing right incidental to the ownership of joint property. This right subsists so long as the property is not partitioned. A co-sharer may at one time desire partition and institute proceedings. He may then change his mind and drop the proceedings This would not debar him from bringing a fresh suit for partitio