JUDGMENT P. Subramonian Poti, J. 1. An interesting question is raised in second appeal No. 1134 of 1967 and that concerns the effect of a decree for partition in an earlier suit wherein plaintiff claimed 1/3 share in the suit properties. The claim for 1/3 succeeded in the earlier suit and a preliminary decree was passed for the 1/3rd followed by a final decree which is under challenge in the connected appeal, S.A. No. 1135 of 1967 at the instance of the same party. In the present suit the same plaintiff claims partition of one-half of the same properties. It is necessary to state a few facts to understand how this situation has arisen. 2. Plaint items belonged to the father of plaintiff who was the grandfather of defendants 1 and 2. The father of the plaintiff died some time prior to 1952 and thereafter the mother was in possession. The mother died intestate in 1952. Plaintiff and father of defendants 1 and 2 were the sons of the said mother who died in.1952 and besides these sons she had a daughter who is not a party to this suit. It is claimed by the plaintiff in the plaint that he was entitled to one-half by inheritance to his mother and therefore he should get a decree for that one-half. This claim is resisted in the suit by defendants 1 and 2 who claim under their father by virtue of a document executed by the father during his lifetime in their favour. According to them, no doubt, their father as well as the plaintiff were entitled to one-half each, but in collusion with their father who had turned against them earlier, the plaintiff had filed an earlier suit O.S. No.72 of 1958 claiming 1/3 only in the suit properties. That attempt, according to defendants 1 and 2, was to reduce the share of their father also to 1/3 , so much so their settlement deed would also be operative for a lesser share. The case then was that besides the plaintiff and father of defendants 1 and 2 another sister of the plaintiff was also entitled to a 1/3 share, these respective shares having fallen to them by reason of an oral arrangement made by their mother before she died. The case then was that besides the plaintiff and father of defendants 1 and 2 another sister of the plaintiff was also entitled to a 1/3 share, these respective shares having fallen to them by reason of an oral arrangement made by their mother before she died. In that suit defendants 1 and 2 in the present suit who were defendants 3 and 4 contested the claim of the plaintiff. They were not interested in enhancing the share claimed by the plaintiff therein. But to protect themselves as those claiming under the first defendant in that suit, their father, they set up the contention that plaintiff's sister had no right, that there was no oral arrangement as pleaded and by inheritance plaintiff in that suit as well as their father were entitled to one-half each. That was upheld. But, all the same, plaintiff was given a decree only regarding 1/3, as that alone was the claim made by the plaintiff in that suit. Possibly finding that the purpose for which that suit had been filed did not succeed, plaintiff has resorted to the next best by seeking to get one-half so that in that process at least to some extent the arrangement which has resulted in defendants being in possession of some property may be disturbed. That is why the claim is resisted by defendants 1 and 2. 3. Pursuant to the preliminary decree for partition in O.S. No.72 of 1958 declaring the share of the plaintiff therein who is the plaintiff in the present suit also, as 1/3, a final decree has been passed on a motion made in that behalf not by the plaintiff therein, but by defendants 3 and 4 in that suit who are the defendants here. That is the decree which is the subject - matter of the appeal, S.A. No. 1135 of 1967. will refer to the attack against that final decree separately. 4. In S.A. No.1134 of 1967 plaintiff challenges the concurrent decrees of the f courts below which held that his claim to one-half of the suit properties is barred by the provisions of O.2, Rule 2 of the Code of Civil Procedure. It is the correctness of this finding that is canvassed in this second appeal. 5. 4. In S.A. No.1134 of 1967 plaintiff challenges the concurrent decrees of the f courts below which held that his claim to one-half of the suit properties is barred by the provisions of O.2, Rule 2 of the Code of Civil Procedure. It is the correctness of this finding that is canvassed in this second appeal. 5. From the narration of facts made above it will be apparent that the plaintiff took up the stand earlier that he was entitled to 1/3 only of the suit properties and that G in spite of the fact that defendants 3 and 4 there contended that plaintiff was entitled to one-half. A contest ensued on that plea and that called for a determination of the share of the plaintiff, but still he was content to have 1 /3 share only, for reasons best known to himself. I have indicated in the earlier paragraph of this judgment the possible reason which might have prompted the plaintiff to take up this unusual attitude. The fact remains that notwithstanding a plea by the defendants in the suit that the plaintiff's share was larger, plaintiff did not seek to amend his plaint at any time and he sought only with a decree for 1/3rd. Now plaintiff seeks to claim one-half, which according to him is a claim maintainable in law since that arises out of a different cause of action altogether. He would say that the earlier suit arose out of another cause of action pleaded by him, namely an oral arrangement by his mother, which arrangement was found against, and the present suit arose out of a different cause of action, namely an inheritance to his mother. It may be mentioned here that I am referring to inheritance to the mother because it would appear that after the death of the father some arrangement was entered into between his heirs whereby the suit items were set apart to the mother and it is in that way that the question falls to be considered as one of inheritance to the mother. 6. 6. It is true that if a plaintiff files a suit claiming right in a particular capacity and alleging a particular cause of action as the basis of his right and he fails in such a suit, the court finding that he is not entitled to the right claimed, he cannot again invoke that cause of action for filing another suit. But this does not preclude him from suing on the basis of another cause of action quite independent of the earlier. Question of res judicata may sometimes arise in such cases if the decision in the earlier suit involves any adjudication of the issues which may have to be adjudicated in the later suit. If no question of res judicata would arise, possibly there would be no bar to the second suit. But that will not be the case where the second suit is based upon the same cause of action. What is contended by counsel for the appellant here is that the cause of action in the earlier suit was different from the cause of action in the present suit, the one being an oral arrangement by the mother and the other being an inheritance from the mother. I will necessarily have to remember that in this case plaintiff in the earlier suit has obtained a decree. It is not a case where the earlier suit has been dismissed. Whatever may be the cause of action alleged, in the earlier case he got the relief and having obtained the relief in regard to the same properties certainly he cannot file another suit saying that in respect of the same properties he has a different cause of action inconsistent with what he has pleaded earlier. That is where a plea of res judicata will be properly available by way of defence. The decision in the earlier suit will be deemed to involve an adjudication that the earlier cause of action was available to the plaintiff and if that is so available, there is no scope for going into the cause of action alleged in the second suit. The decision in the earlier suit will be deemed to involve an adjudication that the earlier cause of action was available to the plaintiff and if that is so available, there is no scope for going into the cause of action alleged in the second suit. If, on the other hand, the plea of the appellant is that in the earlier suit the oral arrangement was found against and thereby the cause of action which he alleged was not found to be true, but nevertheless he was given a decree, that decree could have been only on the basis of the cause of action which he has urged in the suit namely one of inheritance, in which case it is not open to the plaintiff now to say that he has a different cause of action for this suit. The cause of action for both the suits will then be the same. If this be the position, I will have further to consider whether the second suit would be barred. 7. It is true that for a suit for partition the cause of action is a recurring one. The right to seek partition is a continuing right incidental to the ownership of property. So long as the property is held jointly the right to seek partition continues and therefore repeated actions for partition at the instance of one who seeks to obtain his share may be conceived. This is no doubt a well accepted rule based upon the character of the right to claim partition by a cosharer or a coowner. But this principle is subject to important qualifications. The right to seek partition does not necessarily enable a plaintiff to ignore the earlier proceedings for partition. If in the earlier proceedings the availability of some items for partition is the subject - matter of dispute and that has been decided therein, in a subsequent suit for partition that decision would operate as res judicata. I am only illustrating one instance where notwithstanding the right to partition being a recurring right the adjudication in the earlier suit will be binding in the later proceedings as between the same parties and it is only subject to such adjudication that the right to seek partition could be exercised. So also is the case with other technical bars conceived by the provisions of the Code of Civil Procedure. So also is the case with other technical bars conceived by the provisions of the Code of Civil Procedure. If a person being unable to make a particular claim relinquishes or omits a part of the claim, O.2, R.2 operates upon that claim and what is left to that person if he sues later for partition would be what has not been omitted to be sued earlier. The fact that there can be any number of suits for partition will not enable a person seeking such partition to avoid the consequences of O.2, R.2. To hold otherwise would yield anomalous results. 8. One instance where, in a suit for partition, an earlier adjudication may operate as a bar under O.2, R.2 is the omission of certain properties from the ambit of partition in the earlier suit without sufficient reasons. As held by the High Court of Allahabad in the decision reported in Nageshwar Tewari v. Dwarka Prasad ( AIR 1953 All. 541 ) in such instances it will not be open to the party concerned to claim partition of those items omitted in the earlier suit. The case would be the '. same where the party limits his claim to a particular share in the earlier suit. Even if the quantum of share to which he is entitled to is larger, the bar of O.2, R.2 of the Code of Civil Procedure will operate upon his claim in the subsequent suit. That is the case here. 9. In view of what I have stated above , I agree with the concurrent decrees of the courts below that the claim of the plaintiff is barred by O.2, R.2 of the Code of Civil Procedure in so far as it concerns that portion of the claim which was omitted to be claimed earlier. In regard to the portion other than that there is already a preliminary and a final decree and therefore there is no scope for a fresh division. It is not as if the parties have not become divided by reason of the earlier decree The earlier decree involves not only an adjudication as to the extent of the right but also an adjudication as to what item of property the plaintiff is entitled to by reason of the division. That must be final so far as the second suit is concerned. 10. That must be final so far as the second suit is concerned. 10. In the connected appeal the challenge is to the final decree. It is not with the allotment under the final decree that the appellant has apparently any grievance. But the attack is that the court acted without jurisdiction in passing a final decree. According to the appellant the effect of the subsequent suit has been ignored by the court in passing the final decree. The subsequent suit has met with a fate here by reason of which this challenge can no longer succeed. There being no reason why the allotment under the final decree should be disturbed, I think there is no substance in the appeal, S. A. No. 1135 of 1967. In the result, both appeals are dismissed with costs.