JUDGMENT B.K. PATEL, J. – This appeal is directed against the judgment and decree passed by learned Civil Judge (Senior Division), Athmallik dismissing Title Suit No.79 of 2000, a suit for partition. Appellant was the plaintiff and respondents were the defendants in the suit. 2. Late Kalandi was the common ancestor of the parties. He had two sons, namely Late Ratnakar and late Ghosa. Plaintiff, being the son, as well as defendants 8 to 12 represent late Ghosa’s branch whereas defendants 1 to 7 represent branch of late Ratnakar. Suit lands have been recorded jointly in the names of late Ratnakar and late Ghosa in the Hal Record of Rights. It is also not disputed that late Ghosa had filed Title Suit No.30 of 1994 against his brother late Ratnakar for partition of the suit lands, but due to non-substitution of the plaintiff upon his death the suit abated. 3. Plaintiff’s case is that the suit lands are joint property of the parties and have never been partitioned by metes and bounds though plaintiff and each of the defendants is in possession of separate portion of the suit lands for the sake of convenience. It is alleged that as the plaintiff’s request for partition was not headed to, plaintiff had to bring the suit claiming 7/48th share over the suit lands. 4. Contesting defendant nos. 1 to 4 and 7 filed joint written statement claiming that there has been previous partition of the suit lands between late Ratnakar and late Ghosa since last 40 years. It is also pleaded that the suit lands are self acquired property of late Ratnakar. According to them the suit lands were recorded solely in the name of late Ratnakar in Sabik Khata No.16/3. However, late Ghosa, by practising fraud, got the case lands recorded jointly in his name also in the Hal Record of Rights. It is also pleaded by contesting defendants that in view of abatement of previous T.S.No.30 of 1994, the present suit for partition is not maintainable. 5. Considering the rival pleadings, the following issues were framed by the trial court :- (1) Whether the suit lands are liable for partition and the share of the plaintiff therein? (2) Whether there has been a prior partition of the suit properties between Ratnakar and Ghosa? 5. Considering the rival pleadings, the following issues were framed by the trial court :- (1) Whether the suit lands are liable for partition and the share of the plaintiff therein? (2) Whether there has been a prior partition of the suit properties between Ratnakar and Ghosa? (3) Whether the entire suit land is the self acquired property of Ratnakar Mohapatra and Ghosa Mohapatra has no right, title, interest and possession over the same? (4) Whether the plaintiff has not paid proper Court fee? (5) Whether the suit is barred U/O 22 Rule 9 of the C.P.C. as a previous suit vide T.S.30/94 in the court of Civil Judge (Junior Division), Athmallik has abated for the same cause of action? (6) To what relief, the plaintiff is entitled to? 6. In order to substantiate his case, plaintiff examined five witnesses including himself as P.W.5 and also relied upon Ext.1, certified copy of Hal Record of Rights in respect of the suit lands. On the other hand, contesting defendants examined two witnesses including defendant no.1 as D.W.1 and placed reliance on the documents marked Exts. A, certified copy of Sabik R.O.R. and B, certified copy of the Suit Register in T.S. No.30 of 1994 of the court of Civil Judge (Junior Division), Athmallik. On an appraisal of evidence on record, the trial court answered the vital issue nos.2 and 3 as well as issue no.4 in favour of the plaintiff. The trial court has recorded the findings that there was no previous partition in respect of the suit property by metes and bounds between late Ratnakar and late Ghosa and that the suit property was not self acquired property of late Ratnakar. However, in answering issue no.5 it was held by the learned Civil Judge (Senior Division), Athmallik that in view of abatement of previous T.S. No.30 of 1994 instituted by late Ghosa against late Ratnakar in the court of learned Civil Judge (Junior Division), Athmallik, the present suit is barred under Order 22, Rule 9 of the C.P.C. Accordingly, the suit was dismissed. 7. In assailing the impugned judgment and decree, it was strenuously contended by learned counsel for the appellant that the finding of the trial court with regard to issue no. 5 is legally unsustainable. 7. In assailing the impugned judgment and decree, it was strenuously contended by learned counsel for the appellant that the finding of the trial court with regard to issue no. 5 is legally unsustainable. It was argued that the nature of a suit for partition is different from the nature of other suits inasmuch as claim for partition is a recurring cause of action. A co-sharer can convey his intention for severance of status from the joint family and claim for partition so long as there has been no partition of the joint family property. Learned counsel for the appellant placing reliance on the decision of the Patna High Court in Dilo Rana and another vs. Munshi Kunj Behari Prasad and others :AIR (35) 1948 Patna 244 argued that as abatement of a previous suit due to non-substitution of sole plaintiff does not prevent institution of subsequent suit for partition, the trial court committed grave illegality in dismissing the suit as being barred under Order 22, Rule 9 Sub-Rule 1 of the C.P.C. There being no bar against institution of the present suit, plaintiff is entitled to partition in view of finding of the trial court that suit lands are joint property of the parties. 8. In reply, learned counsel for the contesting respondent nos. 1 to 4 supported and defended finding of the trial court with regard to issue no.5 by seeking aid from provision under Order 9, Rule 9 of the CPC with regard to bar of institution of fresh suit by plaintiff of an earlier suit on the same cause of action which has been dismissed for default under Order 9 Rule 8 of the CPC. 9. In appreciating the controversy raised in this appeal, it has to be borne in mind that plaintiff has not approached the court as the legal representative of his father, the deceased plaintiff in earlier suit bearing Title Suit No. 30 of 1994. Plaintiff has filed the present suit on the basis of his independent claim of being a co-sharer in respect of the joint family property. As has been held by the Hon’ble Supreme Court in Kakumanu Peda Subbayya vs. Kakumanu Akkammma and another: AIR 1958 SC 1042 a suit for partition is a suit for property. Plaintiff has filed the present suit on the basis of his independent claim of being a co-sharer in respect of the joint family property. As has been held by the Hon’ble Supreme Court in Kakumanu Peda Subbayya vs. Kakumanu Akkammma and another: AIR 1958 SC 1042 a suit for partition is a suit for property. The maxim of actio personalis moritur cum persona, which means a person’s right to action dies with the person, has no application to a suit for partition. Learned counsel for the appellant has rightly placed reliance on the decision of Dilo Rana and another vs. Munshi Kunj Behari Prasad and others (supra) wherein it has been held that the claim of partition is a recurring cause of action. So long as the property remains joint, plaintiff’s right of partition will subsist even after the abatement of a previous suit for partition instituted by him. Also, in the decision of Santan Narain Tewari vs. Saran Narain Tewari and others : AIR 1959 Pat 331 , it has been reiterated by the Patna High Court that claim of partition being a recurring cause of action, unless the division of the joint property has been brought to completion by actual delivery of allotments, each party has got right to claim fresh partition of the property and that right is not lost. Thus, unless there is previous partition, plaintiff in a previous suit, which has abated due to non-substitution of defendant or defendants, can himself also bring a subsequent suit for partition. So long as there has been no division of joint property by actual delivery of allotments of shares to the co-sharers, a fresh suit for partition cannot be held to be barred under Order 22, Rule 9 of the C.P.C. In the present case, trial court has, in answering issue nos. 2 and 3, come to a categorical finding that there has not been previous partition of the joint family property comprising of the suit lands. Therefore, finding and conclusion of the trial court with regard to issue no. 5 is not tenable and is liable to be set aside. It is held in answering issue no. 5 that present suit is not barred under Order 22, Rule 9 of the C.P.C. in view of abatement of previous suit Title Suit No. 30 of 1994. 10. Therefore, finding and conclusion of the trial court with regard to issue no. 5 is not tenable and is liable to be set aside. It is held in answering issue no. 5 that present suit is not barred under Order 22, Rule 9 of the C.P.C. in view of abatement of previous suit Title Suit No. 30 of 1994. 10. In view of finding of this Court with regard to issue no. 5, and findings of the trial court with regard to issue nos. 2, 3 and 4 in favour of the plaintiff, issue nos. 1 and 6 also are answered in favour of the plaintiff. Plaintiff is entitled to partition of and share out of the suit lands. 11. Accordingly, the appeal is allowed. Impugned judgment and decree dismissing the suit is set aside and Title Suit No. 79 of 2000 of the court of learned Civil Judge (Senior Division), Athmallik is decreed. Parties shall bear their own cost. Appeal allowed.