Grover, J. - (1.) This is an appeal by certificate from a judgment of the Madras High Court arising out of a suit for partition instituted on the original side of that Court.
(2.) Raja V. Rajeswara Rao the respondent herein and Raja V. Maheshwara Rao (deceased) who were brothers owned the cinema known as Odeon at Woods Road, Madras in equal shares. This property was leased out by them to Isherdas Sahni and Bros. In 1965 Raja Maheshwara Rao filed a suit in which it was stated that apart from other properties owned by the two brothers Odeon Cinema which consisted of land, buildings, theatre, furniture, talkie equipment etc. was owned by them in equal shares. The lease in favour of Isherdas Sahni and Bros. was to expire on April 30, 1967. As we are concerned only with the cinema property in the present case it is unnecessary to refer to the pleadings relating to other properties belonging to the two brothers. In Para 11 of the plaint it was pleaded that having regard to the nature of the property it was not possible or feasible or convenient to divide it into two halves by metes and bounds. It was prayed that the Court in exercise of its inherent jurisdiction should direct the property to be sold by public auction and pay the plaintiff his 1/2 share in the net proceeds, the sale being subject to the lease in favour of Isherdas Sahni and Bros. In the written statement filed by Raja Rajeswara Rao it was denied that the Odeon Cinema property was not capable of division into two halves by metes and bounds and it was averred that such a division was not only possible but it would be also just and proper. The right of the plaintiff in the suit to invoke the inherent powers of the Court for a decree for sale was denied. Paras 6 and 7 are reproduced below: " 6. The defendant submits that the suit property is very easily capable of division by metes and bounds into two shares. The defendant wants to retain his share of the suit property and he does not want to sell or part with the property. The plaintiff is not entitled to a decree for sale of the suit property. 7. In the event of this Honourable Court holding that the suit property is incapable of division into two shares, the defendant submits that he is ready and willing to buy the plaintiff's share in the suit property and prays that this Honourable Court may be pleased to order a valuation of the plaintiff's share to be made in such manner as this Honourable Court may think fit and proper and offer to sell the said share to the defendant at the price so ascertained with suitable directions in that behalf. The defendant is willing to buy plaintiff's share". Para 12 was to the effect that in the event of the Court ordering sale of the suit property a decree might be passed in favour of the defendant for the purchase of the plaintiff's share at a valuation determined by the Court. On July 26, 1965 the Court appointed a Commissioner for the purpose of determining various matters which would enable the Court to decide whether the property was capable of division by metes and bounds. It appears that before the commissioner the defendant consistently pressed for a scheme being suggested by which division of the property in dispute could be effected. The report of the Commissioner dated August 27, 1965 indicates that he had considerable difficulty in suggesting a division. This is what he said: " My submission would therefore be that though the property could be divided in the manner desired by the defendant the space which is shown as GI..........................its situation is such that business of the type contemplated by the defendant could not be started therein without detriment to the functioning of the theatre." It is clear from the order of the learned Single Judge that the prima facie impression which he had formed after inspection of the property was that it was not capable of division by metes and bounds. He had given no final decision on the matter when an oral application was made by the plaintiff for withdrawing the suit with liberty to institute a fresh suit. An objection was raised before the trial Judge that because the defendant had invoked the provisions of Section 3 of the Partition Act the plaintiff could not be permitted to withdraw the suit. The trial Judge however, took the view that so long as a preliminary decree had not been passed in the partition suit it was open to the plaintiff to withdraw the same. Considering the question whether liberty should be granted to bring a fresh suit under O. 23, R. 1, the trial Judge treated it to be axiomatic that in a suit for partition or redemption when a plaintiff withdraws his suit he will be entitled to file a fresh suit as the cause of action is a recurring one. This is what the trial Judge said:- " Even if the plaintiff is not granted permission, under Order 23, Rule 1, Civil Procedure Code, he will nevertheless have a right to file a suit for partition at any time he pleases. In view of this obvious right of the plaintiff, it has to be held that the plaintiff is entitled, particularly, in terms of Order 23, Rule 1, to bring a fresh suit." The suit was dismissed as withdrawn.
(3.) On October 14, 1966, Raja Maheswara Rao sold his half share in Odeon to N. C. Subramaniam and his sons who in their turn sold that share to Isherdas Sahni and Brothers (P) Ltd., on January 19, 1970. Raja Rajeswara Rao who was defendant in the original suit filed an appeal to the Division Bench of the High Court. During the pendency of the appeal the plaintiff died leaving a will and by an order passed by the Court on October 13, 1967 the executor appointed by the plaintiff under the will was impleaded as second respondent in the appeal.;