Sarjoo Prosad, C.J. - (1.) THIS appeal relates to a suit for partition and separate possession, together with mesne profits by way of compensation, of certain lands held jointly or in common tenancy by the Plaintiff and the Defendants. The lands in question appertained to two holdings which were originally held by two brothers Bholanath and Kalanath in equal shares as tenants under the Gouripur Raj Estate. Kalanath died leaving a widow Mst. Rampuria Debya and Bholanath died leaving his two sons Rongbor and Bhubaneswar. Mst. Rampuria does not appear to have been recorded in the landlord's office in regard to her share of land which she inherited from her husband Kalanath. On 12th November, 1934 Mst. Rampuria Debya sold 38 bighas 12 kathas 11 chataks of land, being half of the interest in the jote in Chagalia mouza and 8 bighas of land at Pokalagi as described in the schedules 'Ga' and 'Gha' of the plaint in the specific plots to the Plaintiff. The Raj Estate meanwhile instituted suits for rent against the sons of Bholanath in respect of the two holdings in question without making Mst. Rampuria Debya a party. The suits were decreed and in execution thereof the lands appertaining to the two holdings were sold and purchased by the Raj. Thereafter the Raj settled these lands with the Defendants in November, 1938. The Plaintiff alleged that as a result of the said settlement he had been dispossessed sometime in September, 1939 and February, 1942 by the Defendants.
(2.) HE therefore instituted a suit being Title Suit No. 59 of 1942 for declaration of his right to the lands in question and also for recovery of possession of specific plots of land on the ground that the brothers were in separate possession; in the alternative, if no such separate possession was found, then for partition. The two Courts below dismissed the suit, but on appeal to this Court the Plaintiff obtained a decree on the 2nd of December, 1948. By virtue of that decree the right, title and interest of the Plaintiff in the lands in question were declared and he was also given a decree for joint possession with the Defendants. It appears that in the judgment of this Court the prayer for partition of the lands in question had been overlooked or quite possibly was not pressed. The Plaintiff in due course put the decree into execution through Court and joint possession was accordingly given to the Plaintiff on 19th August, 1949. In spite of this it appears that he had difficulties in obtaining his share of the profits of the land. He therefore instituted the present suit claiming partition of the lands in suit. He has also prayed for mesne profits for the years 1354 B.S. to 1357 B.S. corresponding to 1947 -48 to 1949 -50. The suit was resisted by the Defendants. They raised almost all the grounds which they raised on the earlier occasion and which had been answered against them by this Court. But the substantial ground on which the Court below has dismissed the suit of the Plaintiff is that the claim for partition was barred by res judicata. The learned Subordinate Judge who decided the case has taken the view that, inasmuch as there was a prayer for partition in the earlier suit and that prayer had not been decreed it must be assumed that the prayer had been definitely refused, and therefore the bar of res judicata applied. The appeal is directed against this decree.
(3.) ON the face of it, the decision of the learned Subordinate Judge is quite illegal. He appears to have ignored the position that a right to obtain partition is a right inherent in the 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 on 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. It is a continuing right which the co -owner possesses in the lands in question; and if on account of inconvenience or differences with the co -owner, it is not possible for him to continue in joint ownership of the property, there is no reason why the right to seek partition should be denied to him. In other words, it is open to the co -owner to ask for separate enjoyment of his share of the property at any time he likes and the right to partition the land cannot be refused so long as his interest in the land is not extinguished. The proposition is too well settled to need authorities. But I would refer to only a few of them. In T.C. Mukerji v. Afzal Beg, ILR 37 All 155 :, AIR 1915 All 1 (2) (A), it was pointed out that the right to bring a suit for partition, unlike other suits, is a continuing right incidental to the ownership of joint property and a second suit is, therefore, not barred. Another decision to which reference may also be made is Jagamohini Dasi v. Shiba Gopal Banerjee, AIR 1920 Cal 108 (B), where it was again laid down that the right to sue for partition is a continuing right and incidental to the ownership of joint property: Therefore, so long as the property remains joint, one of the co -owners has a good cause of action for bringing a fresh suit for partition notwithstanding the dismissal of a previous suit for partition. As I said the law on the point is well settled and it is somewhat strange that the learned Sub -ordinate Judge thought that the claim for partition in the present instance was barred by res judicata because in the previous suit the claim was not allowed. Mr. Bhattacharjee appearing for the Defendant -Respondents has strenuously argued that the principle of res judicata applies to such a case. He has tried to bolster up the view taken by the learned Subordinate Judge and has urged that the prayer not having been granted by this Court on an earlier occasion, must be deemed to have been refused and consequently the present suit of the Plaintiff was not maintainable. The argument as I have shown is quite futile and must be rejected. The Plaintiff's claim, therefore, for partition of the land is suit must be allowed.;