THIMMAPPA SHAMBU v. RAMACHANDRA KRISHNA — 1979 DIGILAW 259 (KAR)

G. N. SABHAHIT, J. ( 1 ) THIS is a plaintiffs' appeal against the judgment and decree dated 26-3-1973 passed by the Civil Judge, north Kanara at Karwar, in R. A. No. 7/66 dismissing the appeal and confirming the judgment and decree dated 27-10-1965 passed by the Munsiff, haliyal, dismissing the suit of the plaintiffs for partition of the suit properties with costs. ( 2 ) THE plaintiffs brought a suit for partition of two serials being the family properties. The plaintiffs instituted a suit O. S- No. 19/53 against present defendants for petition in which these two suit properties were also included as family properties. At that time the defendants in the written statement contended that these two properties were trust properties and it was necessary to obtain permission from the Charity Commissioner for partition of those properties. On that representation made by the defendants, the plaintiffs in that suit submitted Ex- 36 whereby they stated that they would withdraw these suit properties from that suit as it wouid be necessary to obtain the permission of the Charity Commissioner as represented by the defendants and that suit came to be decreed awarding 2/3rd share to the plaintiffs in the remaining suit properties. The defendants did not take up any contention that the, suit for partial partition was not maintainable. Subsequently, however, the plaintiffs applied to the Charity Commissioner for permission to partition their properties. The petition was dismissed. Thereafter, they took up the matter in appeal before the Revenues Appellate tribunal which also held that permission, was not necessary for a suit for partition. Therefore, the plaintiffs have instituted the present suit for partition of the said two properties. The suit was resisted by the defendants on several grounds. They contended that they had perfected their title by adverse possession. They further contended that the suit was barred under ordf r 2 Rule 2 and also under Order 23 Rule 1 of the Code of Civil Procedure and that the suit brought for partition was not maintainable in view of the provisions of the Bombay prevention of Fragmentation and consolidation of Holdings Act. ( 3 ) THE learned Munsiff after appreciating the evidence adduced before him, dismissed the suit of the plaintiffs. ( 3 ) THE learned Munsiff after appreciating the evidence adduced before him, dismissed the suit of the plaintiffs. Aggrieved by the said judgment and decree, the plaintiff went up in appeal before the learned Civil Judge, who, no doubt, disagreed with the findings of the trial court that partition was not maintainable in view of the provisions of the Bombay Prevention of fragmentation and Consolidation of holdigs Act and further that the defendants had perfected their title by adverse possession, he however, confirmed the findings of the learned munsiff on the points that the suit was barred by Order 2 Rule 2 as also under Order 23 Rule 1 of the Code of civil Procedure. In that view he dismissed the appeal. Aggrieved, by the said Judgment and decree the plaintiffs have come up in appeal before this court. ( 4 ) THE learned Advocate for the appellants vehemently contended that on the facts of this case neither order 3 Rule 2 nor Order 23 Rule 1 of the Code of Civil Procedure could be attracted and that the courts-below were obviously in error in dismissing the suit holding that the suit was barrad by Order 2 Rule 2 as also under Order 23 Rule 1 of the Code of civil Procedure. As against that, the learned. Advocate appearing for the respondents argued supporting the judgmmt and decree of the learned civil Judge ( 5 ) THE points therefore that arise for my consideration in this appeal are: (1) Whether the courts-below were justified in dismissing the suit of the plaintiff for partition as barred by Order 2 Rule 2 of the Code of Civil procedure ? and (2) Whether the courts-below were justified in dismissing the suit as hit by Order 23 rule 1 of the Code of Civil Procedure? it is not disputed that an earlier suit o. S. No. 19/53 was filed by the plaintiffs for partition of the suit properties. As stated above, the present suit properties were also included in that suit, but, the defendants in their written statement specifically contended that these properties were trust properties which required the permission of the Charity Commissioner for partitioning them. As stated above, the present suit properties were also included in that suit, but, the defendants in their written statement specifically contended that these properties were trust properties which required the permission of the Charity Commissioner for partitioning them. The plaintiffs bona fide believed in their representation and gave a memo as per Ex- 36 stating that they will withdraw those two items of the suit properties in that suit obviously with a view to bring the suit later for partition of the two items of the suit properties after obtaining permission from the Charity Commissioner. Ex- 36 reads thus:"'without prejudice to any of the contentions of these plaintiffs and without admitting anything regarding the nature of the suit properties at serials 1 and 2 these plaintiffs restrict their suit for partitioning all the suit properties except serials 1 and 2 in schedule 'a' of the plaint for the purposes of this suit only. "thereafter the defendants never took up the contention that suit for partial partition was not maintainable. Accordingly, the suit was decreed awarding 2/3rd share to the plaintiffs. It is in this background that we have to consider whether the present suit is is barred by Order 2 Rule 2 of the code of Civil Procedure. A Division bench of this Court in Savitri Bai and others v. Devendra Balappa Patil 1964 Mys. L. J. Supp. 474 has ruled that order 2 Rule 2 of the Code of Civil Procedure does not apply in the rase of partition suits in certain circumstances. This is what is la,id down by this Court after reviewing the decisions on tha,t point: "it will be seen that no one, can make an exhaustive list of cases in which, a second suit for partition could be brought. But the true principle is that an acceptable explanation for the incompleteness of the first suit is what sustains the next. " their Lordships have generally stated that it a property is not immediately available for partition and cannot te divided it would be meaningless for the plaintiff to include that property in the suit for general partition. Further, where, at the time of the first suit, there was a pending litigation with a third party in respect of an item of land and therefore it was excluded from the suit, that would be a reason which would sustain a second suit for partition. Further, where, at the time of the first suit, there was a pending litigation with a third party in respect of an item of land and therefore it was excluded from the suit, that would be a reason which would sustain a second suit for partition. They have further pointed out that if the defendant did not object that the first suit was bad, is being one for partial partition it is not necessary for the plaintiff to explain why the suit was brought for partition of only some of the properties. The real occassion on which an explanation would be due is when he brings thei second suit. They have also explained that if on the date of the institution of the first suit there were circumstances which justified the postponement of the institution of a suit for partition of the suit site, the subsequent event by which the inclusion of a claim for its partition became possible cannot have relevance to the maintainability of the second suit. Thus the gist of the decision is that an acceptable explanation shpuld be given in the second suit about the incompleteness of the first suit and, if the explanation is satisfactory, the second suit is not barred under Order 2 Rule 2 of the Code of Civil Procedure. ( 6 ) IT may also be stated in this context that the Madras High Court in kesari Santamma v. Hanumatha reddi Venkatarama Reddi AIR 1935 Mad. 909. has laid down that the cause of action for the partition suit is a recurring one. It is in this perspective that we have to examine whether the present suit of the plaintiff is hit by Order 2 rule 2 or Order 23 Rule 1 of the Code of Civil Procedure. The, plaintiffs have explained, that they had to withdraw from the suit these two properties on the representation of the defendants that the permission of the charity Commissioner was necessary for bringing the suit tor partition with regard to these properties. Subsequently, their conduct shows that they did apply to the Charity Commissioner and contested the matter up to the Revenue Appellate Tribunal and after final orders were obtained, they have presented this suit. Subsequently, their conduct shows that they did apply to the Charity Commissioner and contested the matter up to the Revenue Appellate Tribunal and after final orders were obtained, they have presented this suit. Thus, it becomes clear that on the notion entertained bona fide by the plaintiffs at the representation of the defendants they thought that these two suit properties were not available for partition when they instituted the earlier suit O. S. 19/53. That being so, i have no hesitation to hold that the explanation offered by them is acceptable being reasonable and legal. I accept the same and hold, that the present suit is not barred by Order 2 Rule 2 of the Code of Civil Procedure. ( 7 ) ORDER 23 Rule 1 of the Code of civil Procedure states thus:"1. Withdrawal of suit or abandonment of part of claim: (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim". Ex- 36 by which the plaintiffs in the earliar suit restricted their suit properties clearly shows that they never intended to abandon their claim regarding these suit properties. They have made it amply clear that they have restricted thqir claim to the suit properties for the purpose of that suit only, meaning thereby that they never intended to abandon their claim over these properties. I have already shown that the cause of action is a recurring one. That being so, it was not necessary for the plaintiffs to obtain permission of the court to withdraw the claim regarding these properties. They can maintain the present suit provided they have an acceptable explanation to offer as ruled by the Division, Bench of this court as the cause of action is a recurring one (vide A. I. R. 1960 Pat- 76 ). That being so, I am satisfied that the, suit is not barred under Order 23 Rule 1 of the Code of Civil Procedure also. The learned Civil Judge has obviously committed an error of law in coming to the conclusion that the suit is barred by Order 2 Rule 2 as also by Order 23 rule 1 of the Code of Civil Procedure. His findings are liable to be set asides. ( 8 ) IN the result, the appeal is entitled to succeed. The learned Civil Judge has obviously committed an error of law in coming to the conclusion that the suit is barred by Order 2 Rule 2 as also by Order 23 rule 1 of the Code of Civil Procedure. His findings are liable to be set asides. ( 8 ) IN the result, the appeal is entitled to succeed. But, all the same, since the suit was not tried on merits and the shares were not fixed, it would be necessary to remit the suit back to the trial court with a direction to dispose of the suit on merits. The appeal is allowed and the judgments and decrees of the courts below are set aside. The suit is remitted back to the trial court with a direction to proceed to dispose of the suit on. merits fixing the shares of the plaintiffs and passing a preliminary decree in the matter in accordance with law having due advertance to the observations made above. There shall be no order as to costs in this appeal. The parties are directed to be present before the trial court on 9-1-1979 to take further instructions from the trial court. Refund admissible court-fees. Send back the records immediatelt. --- *** --- .