K. N. SETH, J. In the suit filed by the plaintiff appellant the main relief claimed was for partition of his half share in the proper ties in dispute. An ancillary relief was claimed for demolition of a wall also. One of the pleas raised in defence was that the suit was barred under Order 2, Rule 2, C. P. C. The trial court decreed the suit in favour of the plaintiff on the finding that the properties in dispute belonged to the joint family and the plaintiff had half a share in the properties. The plea of the bar under Order 2, Rule 2 was ne gatived. On appeal by the defendants the lower appellate court re versed the decree of the trial court and held that the suit was barred under Order 2, Rule 2. The court further held that although the pro perties were not partitioned in the earlier suit between the parties, but under some arrangement they were in exclusive possession of the land adjoining their respective houses and that the plaintiff had no share in the land which fere in the exclusive possession of the defen dants and the defendants had no share in the land which adjoined the house of the plaintiff. The primary question to be considered in the present appeal is whether the suit was barred under Order 2, Rule 2, C. P. C. Admit tedly Suit No. 82 of 1946 was filed by the plaintiff for partition of joint properties of the family. That suit was decreed and the plaintiff was awarded half share in the properties comprised in the suit. In para graph 3 of the plaint it has been asserted that most of the properties owned by the joint family were partitioned in Suit No. 82 of 1946 of the court of the Civil Judge, Gorakhpur. In paragraph 6 it has been stated that some open land was left out of partition in the earlier suit in which the plaintiff had half a share. The defendants in their writ ten statement admitted the allegations made in paragraph 3 of the plaint. With regard to the land in dispute in the present suit they raised various pleas denying the claim of the plaintiff. The defendants in their writ ten statement admitted the allegations made in paragraph 3 of the plaint. With regard to the land in dispute in the present suit they raised various pleas denying the claim of the plaintiff. It is not ne cessary to enter into this controversy for in my opinion the suit must be dismissed on the ground that it is barred under Order 2, Rule 2. C. P. C. The principle behind this provision is that the defendants should not be twice vexed for one and the same cause of action. The condi tions which are essential for attracting the provisions of Order 2, Rule 2, C. P. C. , are: (1) that the previous and the present suit must arise out of the same cause of action; (2) that in respect of the same cause of action the plaintiff was entitled to more than one relief; and (3) that without the leave of the court the plaintiff omitted to sue for the relief for which the second suit had been filed. A test to find out whether the cause of action is the same is to see whether the same evidence will sustain both the suits. It is not necessary that in order to constitute the same cause of action all the allegations made in the two suits should be exactly identical. A cause of action con sists of all facts which it is essential for the plaintiff to allege and to establish and which taken with the law ap plicable to him gives the plaintiff a right against the defen dant. It has also been defined by the Courts as all essential facts constituting the right and its infringement. Even on the aver ment made in the plaint it is obvious that the cause of action for both the suits, as alleged by the plaintiff himself, was that the pro perties were owned by the joint family and the plaintiff had half a share in those properties. The plaintiff clearly alleged that most of the joint family properties had been partitioned in the earlier suit and after the partition the parties were in exclusive possession of their shares. It was further asserted that the properties involved in the present suit had been left out of partition in the earlier suit. The plaintiff clearly alleged that most of the joint family properties had been partitioned in the earlier suit and after the partition the parties were in exclusive possession of their shares. It was further asserted that the properties involved in the present suit had been left out of partition in the earlier suit. Ap parently the cause of action for the plaintiff to claim a relief in his favour was that the properties were owned by the joint family and he had half a share in the properties. The subsequent allegations that because of certain action of the defendants the suit was being filed may have been the immediate cause for approaching the court but that would not change the basic cause of action which entitled the plaintiff to claim a decree through court. Learned counsel for the appellant contended that the plaint of the earlier suit had not been filed by the defendants in the present case and in absence of the plaint of the earlier suit, the plea of the bar of Order 2, Rule 2, C. P. C. could not be sustained. Reliance was placed on Gurbux Singh v. Bhooralal I. L. R. 5 Alld. 226. In that case the suit was for possession of certain property and for mesne profits. In the plaint reference was made to a previous suit against the defendant for re covery of mesne profits in regard to the same property for an earlier period. Dealing with the question of bar of Order 2, Rule 2, C. P. C. the Court noticed that the plaint in the suit was in Hindi and that the word mesne profits was an English translation of some expression used in the original. In the absence of the original plaint the Court felt doubt whether the expression mesne profits was an accurate translation of the expression in the original plaint. On the aver ments made in the plaint the Court felt that it was not possible to hold that the cause of action in both the suits was the same for it was not open to the defendant to invite the Court to speculate or in fer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. The Court further observed that from the mere use of the words mesne profits therefore one need not necessarily infer that the possession of the defendants was alleged to be wrongful. It is also possible that the expression mesne profits has been used in the present plaint without a proper apprecia tion of its significance in law. What matters is not the characterisa tion of the particular sum demanded but what in substance is the allegation on which the claim to the sum was based and as reparrls the legal relationship on the basis of which that relief was sought. " It was in these circumstances the Court held that it was necessary to file the plaint of the earlier suit before the Court could decide the question of the bar of Order 2, Rule 2. No such defect presents itself in the present case. The plaintiff himself alleged in paragraph 3 of the plaint that the earlier suit was filed on the basis that the proper ties were owned by the joint family and that he had half a share in those properties. It is the case of the plaintiff himself that the pro perties involved in the present suit were omitted from inclusion in the earlier suit. No other basis for claiming title to the properties, except that the properties were owned by the joint family, has been set up in the present suit. In view of the allegations in the present plaint there cannot be even an iota of doubt that the case of action for both the suits was the same. In such a situation the rule laid down in Gurbux Singhs case (supra) that in absence of the plaint of the earlier suit the plea of bar of Order 2, Rule 2, C. P. C. could not be decided, is not attracted. It was next urged that the properties involved in the present suit were omitted in the former suit accidently and, therefore, the plaintiff was entitled to maintain the second suit. Reliance was placed on certain, observations made in Smt. Jasoda Kumari Sewani and others v. Smt. Satyabhama Sewani and others (2 ). On a careful reading of that case it appears that instead of supporting it is against the proposition canvassed by the learned counsel. Reliance was placed on certain, observations made in Smt. Jasoda Kumari Sewani and others v. Smt. Satyabhama Sewani and others (2 ). On a careful reading of that case it appears that instead of supporting it is against the proposition canvassed by the learned counsel. After considering a number of authorities the learned Judge observed that in a partition suit all the properties of the joint family must be included. It is not open to a member of the joint family to ask for a partition of a cer tain 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 from maintenance of a widow or some member of the family, or, some other reasons. When, therefore, a plaintiff inten tionally, 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 circum stances above mentioned exist, the provisions of sub-rule (2) of Rule 2 of Order 2 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 2, Rule 2 of the Code. In the present case there is not even a whisper that the plaintiff was not aware of the existence of the properties in the present suit. It is not even alleged that it was left out in the earlier suit because of some mis take or by inadvertence. It just states that it was omitted from be ing included in the earlier suit. The map filed with the plaint, which has been made a part of the decree of the trial court, indicates that the properties are adjacent to the houses of the parties. It cannot be accepted that the plaintiff was not aware of the existence of the pro perties when the earlier suit was filed. That being the position, the emission to include the properties in the earlier suit must be held to be deliberate or intentional. It cannot be accepted that the plaintiff was not aware of the existence of the pro perties when the earlier suit was filed. That being the position, the emission to include the properties in the earlier suit must be held to be deliberate or intentional. Even if it be accepted that it was left out by mistake, the case would sill come within the mischief of Or der 2, Rule 2 of the Code. The applicability of the bar of Order 2, Rule 2, C. P. C. to a second suit for partition of the properties owned by a joint family, came up for consideration in Nageshar Tewari v. Dwarka Prasad and others (3 ). The allegation in the plaint was that by accident four plots were left out in the previous suit. Relying on the decision in Ganga Narain v. Misir Ramesh Chand (4) and following the principle laid down in Moonshee Buzloor Ruheem v. Shwnsheroonnisa Begum (5) to the effect that the words if a plaintiff relinquish or omit to sue for any portion of his claims plainly include accilental or in voluntary omissions as well as acts of deliberate relinquishment, Malik, C. J. held that the plaintiff must be deemed to be debarred under Order 2, Rule 2, C. P. C. as he must be deemed to have know ledge of his rights and had by mistake omitted to claim any relief with regard to these plots. I am in respectful agreement with the view expressed in Nageshar Tewaris case (Supra ). As in my opinion the suit is barred under Order 2, Rule 2, C. P. C. it is not necessary to enter into any other controversy involved in the suit. In the result the appeal fails and is dismissed but I make no order as to costs. .