Satish Chandra, J. - (1.) THE dispute in the present case relates to certain plots in village Misrauti. It appears that the Respondents had filed a suit for declaration and partition under the U.P. Zamindari Abolition and Land Reforms Act against the present Petitioners in relation to plots situate in village Misrauti as well as village Kodaila. The trial court held that in village Kodaila both parties had a share, but in the property situate in village Misrauti the Defendants' branch were exclusively the tenure -holders. The Plaintiffs had no share. On these findings the suit was decreed only in relation to the plots in village Kodaila. It was dismissed with regard to the property situate in village Misrauti.
(2.) IN consolidation proceedings a dispute arose with regard to the plots in village Misrauti which were the subject matter of the previous partition suit. The Deputy Director held that the previous decree will be binding between the parties, but it will not operate as res judicata, because the right of partition is a continuing right and a second suit for co -tenancy rights and partition is not barred. The proposition of law propounded by the Deputy Director appears to me astounding. When the co -ownership of a particular litigant is held not to have been established, there is no question of his having any right of partition, much less the alleged right continuing after the decree in a suit for partition. In the present case the Respondents were held not to be co -owners in respect of the property in village Misrauti. On that finding their supposed right to partition vanished. It could not possibly continue, because - the right of partition is an attribute of the right of co -ownership, If a person is not a co -owner, he cannot possibly have a right of partition, which he could agitate times out of number.
(3.) LEARNED Counsel for the Respondents has invited my attention to T.K. Das v. Beharu Barman : AIR 1958 Gau 67. In that case it was held that a right to obtain partition as a right inherent in joint ownership of property. It is a natural and legal incident of ownership, which could not be denied to a co -owner of the property so long as his right subsists. The mere fact that at an earlier occasion he could not obtain partition is no ground for holding that the right of the co -owner to seek partition is barred for ever.;