IMPORTANT POINT
Claim of partition is a recurring cause of action.

B. K. Patel, J.— This appeal is directed against the judgment and decree passed by learned Civil Judge (Senior Division), Athamallik dismissing Title Suit No. 79 of.2000, a suit for partition. Appellant was the plaintiff and respondents were the defendants in the suit.

2. Late Kalandi was the common ancestor of the parties. He had two sons, namely Late Ratnakar and late Ghosa. Plaintiff, being• the son, as well as defendants 8 to 12 represent late Ghosa’s branch whereas defendants 1 to 7 represent branch of late Ratnakar. Suit lands have been recorded jointly in the names of late Ratnakar and late Ghosa in the Hal Record of Rights. It is also not disputed that late Ghosa had filed Title Suit No. 30 of 1994 against his brother late Ratnakar for partition of the suit lands, but due to non-substitution of the plaintiff upon his death the suit abated.

3. Plaintiff’s case is that the suit lands are joint property of the parties and have never been partitioned by metes and bounds though plaintiff and each of the defendants is in possession of separate portion of the suit lands for the sake of convenience. It is alleged that as the plaintiff’s request for partition was not headed to plaintiff had to bring the suit claiming 7/8th share over the suit lands.

4. Contesting defendant Nos. 1 to 4 and 7 filed joint written statement claiming that there has been previous partition of the suit lands between late Ratnakar and late Ghosa since last 40 years. It is also pleaded that the suit lands are self acquired property of late Ratnakar. According to them the suit lands were recorded solely in the name of late Ratnakar in Sabik Khata No. 16/3. However, late Ghosa, by practising fraud, got the case lands recorded jointly in his name also in the Hal Record of Rights. It is also pleaded by contesting defendants that in view of abatement of previous T.S. No. 30 of 1994, the present suit for partition is not maintainable.

5. Considering the rival pleadings. the following issues were framed by the Trial Court:

(1) Whether the suit lands are liable for partition and the share of the plaintiff therein:

(2) Whether there has been a prior partition of the suit properties between Ratnakar and Ghosa?

(3) Whether the entire suit land is the self acquired property of Ratnakar Mohapatra and Ghosa Mohapatra has no right, title, interest and possession over the same?

(4) Whether the plaintiff has not paid proper Court fee?

(5) Whether the suit is barred under Order 22 Rule 9 of the CPC as a previous suit vide T.S.30/94 in the Court of Civil Judge (Junior. Division), Athamallik has abated for the same cause of action?

(6) To what relief, the plaintiff is entitled to?

6. In order to substantiate his case, plaintiff examined five witnesses including himself as P.W.5 and also relied upon Ex. 1, certified copy of Hal Record of Rights in respect of the suit lands. On the other hand, contesting defendants examined two witnesses including defendant No.1 as DW1 and placed reliance on the documents marked Exs. A, certified copy of Sabik ROR and B, certified copy of the Suit Register in T.S. No. 30 of 1994 of the Court of Civil Judge (Junior Division), Athamallik.

On an appraisal of evidence on record, the Trial Court answered the vital issue Nos. 2 and 3 as well as issue No. 4 in favour of the plaintiff. The Trial Court has recorded the findings that there was no previous partition in respect of the suit property by metes and bounds between late Ratnakar and late Ghosa and that the suit property was not self acquired property of late Ratnakar. However, in answering issue No. 5 it was held by the learned Civil Judge (Senior Division), Athamallik that in view of abatement of previous T.S. No. 30 of 1994 instituted by late Ghosa against late Ratnakar in the Court of learned Civil Judge (Junior Division), Athamallik, the present suit is barred under Order 22, Rule 9 of the CPC. Accordingly, the suit was dismissed.

7. In assailing the impugned judgment a