Raj Kishore Prasad, J.@mdashThis appeal by defendants 2 and 3 arises out of a partition suit. The appeal is from the judgment of the learned Subordinate Judge of Purulia decreeing the plaintiff''s suit tor partition in respect of a moiety shave in Schedule I and one-third share in Schedule 2 properties of the plaint.
2. Only two points have been pressed in support of the appeal by Mr. S. K. Sarkar: first, that the plaintiff''s share should be one third, and not a half in the Schedule 1 property, and, secondly, that the present suit was barred under Order II rule 2 Sub-rule (2) of the Code of Civil Procedure.
3. For a proper decision of the two points raised to the appeal, it is necessary to state the material facts of the case:
4. There was one Ram Sunder Sao who had two wives, Basudi and Biranchi Kumari. From Basudi, Ram Sundar had four sons, namely, Mahant Ram, who died issueless; Durga Prasad, husband of defendants 1 and 2; Kalicharan, husband of Daulat Kumari, who died issueless before the institution of the present suit and, Devicharan alias Chutu, husband of the plaintiff. Ram Sunder through his wife, Basudi had also two daughters, who are defendants 3 and 4 to the present litigation. Ram Sunder got no issue from his second wife, Biranchi Kumari.
5. Previous to the present suit for partition another suit for partition was brought by the present plaintiff against the two widows of Durga Prasad and Daulat Kumari, the widow of Kali-charan who was then alive. At the time of the previous partition, Mahant Ram, one of the four sons of Ram Sunder, died issueless, and, therefore, the suit was confined to the heirs of the three brothers, namely, Durga Prasad, Kalicharan and Devicharan alias Chutu, the three remaining sons of Ram Sunder Sao. In that partition suit admittedly plot No. 1194, which is Schedule 1, and, item No. C of Schedule 2, of the present suit were not the subject matter of partition and were not included in the previous suit for partition. The previous suit for partition brought by the plaintiff was decreed on 28-1-1946, as will appear from the decree of the previous suit Ext. G(a). The present suit for partition was brought on 26-2-1953, claiming partition of Schedule 1 and also item C of Schedule 2 of the properties under partition which were not included in the previous partition suit.
6. The suit was contested by defendants 1 and 2 and also by defendants 3 and 4, but the written statement filed by defendants 3 and 4 was rejected by the court below. Before the learned Subordinate Judge also the question as to whether the present suit for partition was barred in respect of Schedule 1 and item C of Schedule 2 properties of the plaint in view of the decree of the previous partition suit was raised, The learned Subordinate judge held that these two properties were not included in the previous partition suit by mistake and, therefore, the present suit for partition was maintainable. He further found that the share of the plaintiff in Schedule 1 was one-half, and not one-third, as contended by the appellants. He accordingly decreed the plaintiff''s suit for partition as mentioned earlier.
7. As regards the first contention regarding the share of the plaintiff in Schedule 1 of the plaint, I have no manner of doubt that the decision of the court below is correct. Apart from the reason given by the learned Subordinate Judge, Mr. J. M. Ghosh, who appeared for the respondents, put forward some other grounds in support of the finding of the learned Subordinate Judge, and, in my opinion, those grounds are quite substantial. In the Khatian (Ext. 9), in respect of plot No. 1194, under Khata No. 86, which is Schedule 1 of the plaint, in the remarks column Biranchi Kumari Dasi, widow or Ram Sunder Sao and his second wife, is recorded to be entitled 8 annas share of rent of lac bearing trees. In paragraph 4 of the plaint the plaintiff specifically averred that Schedule 1 was in possession of the plaintiffs husband''s step-mother, Biranchi Kumari Devi and after her death, plaintiff''s husband and Durga Charan, husband of defendants 1 and 2, got possession of these properties in equal shares as her heirs.
This specific assertion of the plaintiff is not denied by defendants 1 and 2 in their written statement; on the other hand, it is specifically at-firmed to be correct by defendants 3 and 4 in their written statement. It may be mentioned at this stage that defendants 3 and 4, who are daughters of Ram Sundar Sao, as mentioned before, were made parties to the present suit for partition as heirs of Kalicharan, husband of Daulat Kumari after her death. Defendants 1 and 2 in paragraph 5 of their written statement simply stated that they had transferred the right in Schedule 1 and in item C of Schedule 2 of the plaint to defendant No. 3 and since then she was in possession of the same to the knowledge of the plaintiff. It appears further that a suit in ejectment was brought by Udhab Chandra Singh, landlord, for khas possession of the trees standing on plots 1194 and 1202, which included plot No. 1194 which is in dispute in the present suit.
To that suit only the husband of the plaintiff and the present defendants 1 and 2 were made parties as defendants 12, 11 and 11(ka) respectively along with others. The suit was brought in 1937 when Daulat Kumari, widow of Kalicharan was admittedly alive, because she was also made a defendant to the previous partition suit in 1943. If Kalicharan, and, after him, his widow, Daulat kumari had also an interest in Schedule 1 of the present suit, namely, plot No. 1194, and, he or she would have been in possession of it, surely the landlord must have made Kalicharan, if he was alive, or his widow, Daulat Kumari, who was said to be alive, a party to this suit. Exhibit 6(b) is the decree of that title suit which was decreed on the 22nd September, 1938 and it clearly shows that neither Kalicharan nor his widow was a party to that suit. The decree was brought in appeal to this Court as will appear from the judgment of this Court (Ext. 3(a)) and its decree (Ext. 6). In this decree (Ext. 6) also the widow of Kalicharan is not a party to the appeal. The only inference which can be drawn from the facts mentioned above as also from the reasons given by the learned Subordinate Judge based on Ext. 5 is that Schedule 1 belonged to and was in possession of Devicharan, husband of the plaintiff and Durga Prasad, husband of defendants 1 and 2, and, as such, the share of the plaintiff has rightly been found to be a half in Schedule 1, and not one-third, as contended by the appellants. I would accordingly affirm the finding of the court below that the share of the plaintiff in Schedule 1 of the plaint is one-half, and not one-third.
8. AS regards the second contention, Mr. Sarkar relied very strongly on a Bench decision of the Madras High Court in
9. In the above Madras case their Lordships observed :
"In our opinion, the contention that generally only one suit for partition will lie represents the settled law. That is the only view reconcilable with the terms of Section 11, explanation 4 and order 2 Rule 2 C. P . C."
10. It was, later, further observed that:
"The cause of action in a partition suit of joint family property must be regarded as exhaustive of the whole property available for division, so far as its existence is known at the date of the plaint."
11. In that case, in reply to the bar of Older II Rule 2 of the Code pleaded, it was contended at the Bar that the suit properties were situated in two jurisdiction, and, therefore, Sections 16 and 17 of the Code gave the plaintiff the option to bring either two suits in the two courts for the property in the jurisdiction of each or one suit in whichever court he may prefer for the whole property, and, that the plaintiff has simply exercised his option in choosing the former alternative. This argument was repelled by their Lordships on the ground that the position that the suit properties were situated in two jurisdiction did not make any difference in the application of the principle involved in Order II Rule 2, Code of Civil Procedure, which was not uverriden by the provisions of Sections 16 and 17 of the Code. Their Lordships, therefore, held that the suit before them, which, was substantially for one item of what was admittedly joint family property, was not maintainable in view of the fact that the plaintiff of that suit had already brought a suit earlier and obtained a decree for partition for other items.
12. Relying on the above decision, Mr. Sarkar strenuously argued that similar was the situation here because the plaintiff had admittedly obtained a decree for partition previously in respect of other properties, and, therefore, the present suit for partition in respect of the two properties, mentioned before, which, according to the plaintiff''s own cause, formed part of the joint family properties of the parties, and, were not included in the previous suit for partition, was not maintainable.
13. This Madras case was considered by a learned single Judge of the Nagpur High Court in
"It is clear from the rulings cited that the preponderance of opinion is that where there has been an inadvertent omission to partition some of the joint family property a subsequent suit may be brought for partitioning the same. The property which has not been partitioned must lemain joint family property, and as such, susceptible to partition at a future date ..........''''
14. After a consideration of the other cases, which I shall presently notice, I too have no doubt that the dictum that "it is settled law that only one suit for partition will lie" laid down in the above
15. Mr. Ghosh, in reply, contended that if by mistake or inadvertence some properties had been omitted in the previous partition suit, then a subsequent suit for partition for such omitted properties would be maintainable. He relied on Jogendra Nath Rai v. Baldev Das 6 C LJ 735: ILR 35 Cal 961,
16. Tn the first case 6 C LJ 735 his Lord-ship Sir Asutosh Mookerjee, who delivered the judgment of the Division Bench, examined at length, amongst other matters, also the question of maintainability of a suit for partition, having been brought in respect of a part only by mistake. In that case, by mistake, the lands in suit in the second suit, for partition were excluded from the report of the commissioner, and, therefore were not dealt with by the final decree for partition. In this connection, his Lordship, after an exhaustive examination of all the cases of the different High Courts, including the English decision in Cartmell v. Chambers. (1899) 54 S. W. 362 and the observation of the Privy Council in Jagatjit Singh v. Sarabjit Singh ILR 19 Cal 159 , summed up his conclusion in the following words;
"We must, consequently affirm without hesitation, the doctrine that, although a co-owner cannot enforce a partition of a part only of the common lands, leaving the rest undivided, and although, the entire property must be included in the partition, yet if by mistake or by consent of the co-owners, acting innocently and fairly, a partition of a portion only of their estate has been made, whether by order of the Court or otherwise, there is no reason why the Court should not grant a division of the remainder at the instance of one or more of the co-owners."
17. Their Lordships, accordingly, held that the conclusion, therefore, was irresistible that the effect of the previous decree in the partition suit was to leave untouched the joint title and possession of the parties in respect of the lands covered by the subsequent suit, which were not included by mistake in the previous suit and as such the second suit before them for recovery of joint possession may well be maintained.
18. A similar view was taken by a learned single Judge, of the Madras High Court in
"But it has been held that there could be no omission to sue within the meaning of this rule unless the plaintiff was at some time prior to the suit aware or informed of the claim or of the facts which would give him a cause of action."
After a consideration of the above two earlier Madras cases, his Lordship came to the conclusion that when a person was not aware of the existence of an item of property which belonged to the family and wanted to sue for its division, it could not be said that he ought to have included it in the previous suit.
19. In the second Calcutta case, namely,
"On an examination of these authorities and on considerations of justice and equity and of the law applicable, the following results seem to he evident; (1) if in the previous suit for partition a property is left out either intentionally or by mistake and no objection is taken by party to a partial partition and the properties in that suit are partitioned, a subsequent suit for partition of the property so left out and still held in joint possession is maintainable; . . . . "
Mr. Ghosh, relying on the above observation, urged that even if a property is left out intentionally, and, no objection is taken by the party concerned to a partial partition a second suit for partition of the omitted property will lie.
20. If I may say so with respect, I express my cordial assent to the view of their Lordships that if a property is left out by mistake and no objection is taken by party to a partial partition, a second suit for partition for such left out property would lie. But, with respects, I differ from their Lordships'' other observation that if a property is left out even intentionally and no objection is taken by party to such partition, a second suit for partition for such left out property will lie. It would appear, on an examination of the facts of that case, that this view of their Lordships appears to have been expressed obiter, because, in that case in the first place, in none of the cases noticed in the judgment of their Lordships such a wide proposition of law seems to have been laid down, and, in the second place, in that case before their Lordships some of the properties were omitted intentionally and left joint with the consent of the parties. If, therefore, some property is left out intentionally with the consent of the parties, certainly a second suit for partition in respect of such left put property would He. But if some property is left out intentionally without the consent of the parties or without the leave of the Court, or without any justifying reason, I cannot understand how a second suit for partition in respect of such left out property would lie, If this view is accepted, then it will defeat the provisions of Order II Rule 2 of the Code of Civil Procedure.
21. Order II, Rule 2, of the Code, excluding the Explanation which is not material here, is to the following effect:
Order II. 2(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; hut a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; hut if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not, afterwards sue for any relief so omitted."
22. From the plain language of Sub-rule (2), or Rule 2, of Order II, of the Code it is clear enough that where a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so relinquished or omitted. Sub-rule (3) of Rule 2, of Order II, no doubt, gives an option to a plaintiff to sue for all or any of such reliefs, if he is entitled to more than one relief in respect of the same cause of. action, but, it, further, provides that if such plaintiff omits to sue for all such, reliefs, without the leave of the Court, he shall not afterwards sue for any relief so omitted. The cause of action referred to in Rule 2 of Order II, is the cause of action which gives occasion to and forms the foundation of the suit, and if that cause enables a man to ask for larger and wider relief than that to which he limits his claim, he cannot atter-wards seek to recover the balance by independent proceedings:
23. In a partition suit all the properties of the joint family must be included; because a co-owner cannot enforce a partition of a part only of the common lands, and, as such, the entire property must be included in the partition suit. It is not open to a member of the joint family to ask for a partition of a certain item and leave the rest, except in certain cases, such as, where some of the items could not be divided by reason of their being in possession of usufructuary mortgagees, or, being under a long lease, or, set apart for maintenance of a widow or some member of the family, or, some other reasons. It is not left to the option of the plaintiff in such a partition suit to ask for relief in respect of certain properties and then to say that he would ask for partition of the other properties at some future time, when the circumstances above adverted to are not present, and, when he is not ignorant of the existence of the other omitted properties. When, therefore, a plaintiff intentionally, not by mistake or inadvertence, nor due to ignorance or oversight, nor with the consent of the co-owners, nor with the leave of the court, does not include a property in his previous partition suit, although he knows about its existence, and, none of the circumstances above mentioned exist, the provisions of Sub-rule (2) of Rule 2 of Order II of the Code will apply. The cause of action, in such a case, in the two suits being the same, the plaintiffs suit will come within the mischief of Order II Rule 2 of the Code. Rule 2 of Order II provides that every suit shall include the whole of the claim. Sub-rule (3) of Rule 2 of Order II clearly lays down that it a person omits, except with the leave of the Court, in sue for all reliefs to which he is entitled, he shall not afterwards sue for any relief so omitted:
24. In my opinion, therefore, the observation of their Lordships in the
25. On a consideration �f the above authorities, however, it is manifest that, after a decree has been passed in a suit for partition of the joint family property, a subsequent suit for partition may be brought in respect of any portion of that property which, by mistake, or, inadvertence, or due to ignorance or to oversight, or by consent of the co-owners, was omitted in the former suit, and if no objection is taken by the party concerned to a partial partition, the subsequent suit for partition of the portion of the property so left Out and still held in joint possession, would be maintainable. If by mistake, or the like, acting innocently and fairly, a partition of a portion only of their estate has been made, whether by order of the Court or otherwise, there is no reason why the Court should not grant a division of the remainder at the instance of one or more of the co-owners. In such a case, there could be no omission to sue within the meaning of Rule 2 of Order II of the Code. Mr. Sarkar, however, did not seriously con-test the above proposition of law that, if by mistake a property is left out from the previous partition suit, a second partition suit in respect of such left out property will be maintainable; but he strongly contended that such mistake must be excusable, and not inexcusable amounting to negligence On the part of the plaintiff, and that, in the present case, the plaintiffs omission was deliberate in spite of having knowledge of existence of these omitted properties. I have not been able to appreciate this classification of mistake. If it is a mistake, it obviously means a bona fide mistake; otherwise, it would cease to be a mistake, and, would amount to a deliberate and intentional omission on the part of the plaintiff, and not due to mistake or ignorance. In the present case, however, applying the above principles, extracted from the authorities considered above, I find that the learned Sub. Judge has rightly come to the conclusion that the plaintiff by mistake omitted to include Schedule 1 and item C of the Schedule 2 properties of the present suit in the previous suit for partition.
26. As this question has been considered by the learned Subordinate Judge, it is not necessary to go into detail, but I shall briefly give my own reasons for concurring in the judgment of the court below: (After discussing the evidence the judgment proceeded):
27-29. On the evidence on the record and on the facts of the present case, there is no manner of doubt that the plaintiff by mistake, acting innocently and fairly, did not include these two omitted items of properties in her previous suit for partition, and, therefore, in the words of Mr. Sarkar, her mistake was excusable.
30. For the reasons given above, I bold that there is no merit in the appeal, and, accordingly, it is dismissed with costs.
31. The question then arises as to where now the suit should go back for a final decree. The suit was instituted before the Subordinate Judge at Purulia as some of the properties under partition were situated in the district of Manbhum, At the time of the institution of the suit as also at the time of the filing of the present appeal the entire district of Manbhum was within the jurisdiction of this High Court. But during the pendency of the appeal, that part of the district of Manbhum where the properties of the district of Manbhum under partition were situated, has ceased to be under the jurisdiction of this High Court. In these circumstances, as admittedly some of the properties under partition are situated in the district of Ranchi, within the jurisdiction of this Court, the proper course would be to transfer the suit to Ranchi. The suit is accordingly transferred to the court of the Judicial Commissioner at Ranchi for being transferred to the court of the Subordinate Judge at Ranchi, who may be competent to deal with this matter, for disposal of the suit in accordance with law.
