Bombay High Court
Smt.Ashabai Wd/O Rambhau Awachat ... vs Madhusudan Rajaram Chourasia on 16 June, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.412 OF 2003
APPELLANTS: 1. Smt. Ashabai wd/o Rambhau Awachat,
Aged 55 years, Occupation-Household,
2. Raja S/o Rambhau Awachat, Aged about
20 years, Occupation - Service,
3. Manoj S/o Rambhau Awachat, Aged 17
years, Occupation-student, Minor,
through him mother natural guardian -
plaintiff no.1.
4. Kum. Mini D/o Rambhau Awachat, aged
about 23 years, Occupation-household,
5. Ku. Thimmu D/o Rambhau Awachat,
aged 25 years, Occupation-household,
6. Kum. Phulmati D/o Rambhau Awachat,
aged 27 years, Occupation-household,
All R/o Bhaji Mandi Chowk, Naidu
Road, Sitabuldi, Nagpur.
-VERSUS-
RESPONDENT: Madhusudan s/o Rajaram Chourasia,
aged about Major, Occupation nil, R/o
Near Royal Bakery, Telipura, Sitabuldi,
Nagpur.
Shri H. Chitale, Advocate for the appellants.
None for respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: 16
th JUNE, 2017.
ORAL JUDGMENT :
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1. In this second appeal filed by the original plaintiffs, the
following substantial question of law arises for consideration:-
Whether dismissal of suit for
partition in default under Order 9 Rule 9 of
the Code of Civil Procedure would bar the
subsequent suit for partition?
2. For answering the aforesaid substantial question of
law, it would be necessary to refer to certain relevant facts. The
suit property is half portion of House No.509 situated at the main
road, Sitabuldi Nagpur. The predecessor of the plaintiffs Rambhau
entered in to an agreement to purchase the suit property with one
Tarachand on 27-1-1968. Tarachand was the joint owner of the
suit house along with his brother Rajaram. As Tarachand did not
execute the sale deed, Rambhau had filed R.C.S. No.132 of 1970
and this suit for specific performance was decreed on 28-6-1971.
This decree was executed and on 6-9-1975, a sale deed for the
aforesaid property was executed in favour of Rambhau. As the suit
premises was in possession of a tenant Premnath, Rambhau filed
R.C.S. No.132/1976 for his ejectment. This suit was decreed on
27-2-1981. The tenant Premnath challenged this decree and his
appeal came to be allowed. The second appeal preferred by
Rambhau was dismissed on the ground that Rambhau had
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purchased a half undivided share and in absence of any partition
he could not have become owner of any defined portion of the
house. Thereafter Rambhau filed the present suit on 29-4-1988
praying for partition and separate possession of the suit property.
3. The defendant filed his written statement and denied
the case of the plaintiff. It was pleaded that the defendant's
brother who was the plaintiffs vendor Tarachand had filed suit for
partition of the suit property being Special Civil Suit No.136 of
1968. This suit came to be dismissed in default on 24-11-1970.
The application for restoration was also dismissed on 8-3-1972
and, therefore, the suit was barred under provisions of Order IX
Rule 9 of the Code of Civil Procedure, 1908 (for short the Code).
Rajaram claimed exclusive ownership of the suit property.
4. The trial Court after considering the evidence on
record held that the plaintiff had failed to prove that Tarachand
and the defendant - Rajaram were joint owners of the suit
property. It further held that Rajaram had perfected his title by
way of adverse possession and, therefore, the plaintiff was not
entitled for any relief. The suit accordingly was dismissed on 1-8-
1998.
The plaintiffs challenged the aforesaid judgment and
the appellate Court recorded a finding that it was proved that the
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suit property was jointly owned by Tarachand and his brother
Rajaram. It, however, held that in view of the dismissal of the suit
for partition between two brothers, the present suit was barred
under provisions of Order IX Rule 9 of the Code. Being aggrieved
this second appeal has been filed.
5. Shri H. Chitale, learned Counsel for the appellants
submitted that the suit for partition and separate possession filed
by the legal heirs of Rambhau was not barred under provisions of
Order IX Rule 9 of the Code. He submitted that the cause of action
for filing the present proceedings was distinct from the cause of
action for filing the earlier suit for partition by Tarachand. There
were various properties that were the subject matter of suit for
partition filed by Tarachand. In such circumstances, when the
cause of action for the subsequent suit was distinct and the relief
sought was only with regard to one of the properties belonging to
the joint family, the bar under provisions of Order IX Rule 9 of the
Code was not attracted. According to him, as per the provisions of
Rule 9 of Order IX of the Code, only the plaintiff who had filed the
earlier suit that was dismissed was precluded from filing the
subsequent suit and a third party was not so barred. In any event,
it was submitted that the right to seek partition gave a continuing
cause of action and therefore, the present proceedings could not be
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said to be barred under provisions of Order IX Rule 9 of the Code.
In that regard, he placed reliance upon the judgment of the
Madras High Court in Kannikandath Kizhe Purakkal Vella's Son,
Thayyan V. Kannikandah Kizhe Purakkal AIR 1935 Madras 458. He
further submitted that the appellate Court having held that suit
property was jointly owned by Rajaram and Tarachand, the
plaintiffs were entitled for the relief of partition. He, therefore,
submitted that the suit was liable to be decreed.
6. The appeal was heard on 14-6-2017 and 15-6-2017.
There was no appearance on behalf of the respondent on said
dates. Today also there is no appearance on behalf of the
respondents. With the assistance of the learned counsel for the
appellants, I have perused the records and I have given due
consideration to the submissions urged on behalf of the appellants.
7. Taking up the first submission made on behalf of the
appellants that on account of the dismissal of the suit filed by
Tarachand for partition under provisions of Order IX Rule 8 of the
Code, the subsequent suit filed by Rambhau was not barred as the
provisions of Order IX Rule 9 of the Code only preclude such
plaintiff whose earlier suit has been dismissed, said contention
cannot be accepted. Though it is true that the provisions of Order
IX Rule 9 of the Code refer to a "plaintiff" being precluded from
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filing a fresh suit on the same cause of action, these provisions fell
for consideration in Suraj Rattan Thirani and others Vs. Aamabad
Tea Co. Ltd. and others AIR 1965 SC 295 wherein it has been held
in clear terms that the word "plaintiff" in Rule 9 of Order IX would
also include his assigns and legal representatives. In view of this
legal position, mere fact that Rambhau was not the plaintiff in the
earlier suit cannot be a valid ground for not considering the
application of the bar under provisions of Rule 9 of the Order IX of
the Code. Rambhau claims to have purchased the suit property
from Tarachand who was the plaintiff in the earlier suit and,
therefore, he would have to get over the legal bar as imposed in
Order IX Rule 9 of the Code.
8. It is to be noted that in Special Civil Suit No.136 of
1968 that was filed by Tarachand against his brother for partition,
relief was sought in respect of the properties mentioned in
Schedule A of the plaintiff. These properties included a house at
Telipura which is not the present suit property. It also included
the present suit property as one of the properties of which
partition was sought. In other words, the present suit house was
not the only suit property that was the subject matter of partition
in Special Civil Suit No.136 of 1968.
The bar under Order IX Rule 9 of the Code is to bring a
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fresh suit is with regard to the same cause of action. The cause of
action in the earlier suit for partition arose on 4-12-1967 and on
23-12-1967 after exchange of notices between the two brothers.
The cause of action for the present suit arose on 15-2-1988 when
the plaintiffs learnt on the dismissal of their second appeal that
they were owners of half undivided share of the house jointly
owned by the two brothers. The cause of action in the present suit
is, therefore, distinct from the cause of action in the earlier suit.
9. In any event, it is well settled that the cause of action
for a suit for partition is a continuing cause of action. In Suraj
Rattan (supra) it has been held that where a partition suit is
dismissed for default it does not bar a subsequent suit as even after
dismissal of the former suit, the jointness continues and there is a
continuing cause of action. The entire house property having
continued to remain joint after dismissal of the earlier suit for
partition on 24-11-1970 and the cause of action for the present
suit having arisen subsequently which was also distinct from the
earlier cause of action, there is no manner of doubt that the bar as
prescribed by provisions of Order IX Rule 9 of the Code for filing
the subsequent suit is not at all attracted.
The appellate Court fell into error when it is held that
the present suit was barred under provisions of Order IX Rule 9 of
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the Code. As noted above, the cause of action for filing the present
suit was distinct from the cause of action for filing the earlier suit
and the subsequent suit was only with regard to one of the joint
family properties that came to be purchased by the predecessor of
the appellants. In that backdrop, suit for partition was
maintainable. On that count said finding recorded by the appellate
Court cannot be sustained. The substantial question of law is
answered by holding that the dismissal of the earlier suit for
partition would not bar the subsequent suit for partition under
provisions of Order IX Rule 9 of the Code.
10. The appellate Court in paras 9 and 10 of its judgment
has held that the plaintiffs Vendor - Tarachand was never ousted
and that both the brothers were joint owners of the suit property.
The said finding is not under challenge in this appeal. Consequent
thereto after setting aside the judgment of the appellate Court, the
plaintiffs would be entitled for the relief of partition and separate
possession.
11. In view of aforesaid discussion, the following order is
passed:
ORDER
The appeal is allowed.
The judgment of the trial Court in Regular Civil Suit
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No.1000/1988 dated 1-9-1988 and that of the appellate Court in
Regular Civil Appeal No.650 of 1988 dated 16-4-2003 is set aside.
The proceedings in Regular Civil Suit No.1000/1988
are decreed. It is held that the appellants are entitled to
possession of half share in House No.623/ 509(old) on Main Road
Sitabuldi, Nagpur as described in the schedule to the plaint. There
shall be no order as to costs.
JUDGE
/MULEY/
