Judgment 1. Being aggrieved by judgment and decree dated 24.04.1992 passed by Civil Judge Jr. Dn., Saoner, dismissing the suit filed by the appellant-plaintiff and confirmed in Reg. C.A. No.197/1992 passed by 2nd Addl. District Judge, Nagpur on 06.03.2000, the unsuccessful plaintiff had filed the instant second appeal. The learned counsel for the appellant, assailing the impugned judgment and decree passed by the lower appellate Court submitted that the lower appellate court has considered only the point of maintainability of second civil suit holding that the second civil suit in the same subject matter was not maintainable and thus dismissed the appeal preferred by the present appellant. She thus submitted that the lower appellate court did not discuss the single point on merits of the suit and dismissed the appeal on the sole ground. According to her, the lower appellate Court being the court of facts and the said appeal being one of right, the lower appellate court was under a duty to decide the suit on merits. Even otherwise, according to her the second suit was maintainable in the light of law in relation to such type of suits. 2. Per contra, Mr. Zoting learned counsel for the respondents, supported the impugned judgment and decree and argued that there are concurrent findings of facts as well as question of law recorded by both the courts and even if the lower appellate court has not discussed about merits of the matter, the learned trial Judge has recorded a detailed judgment on the merits of the matter and, therefore, the judgments recorded by both the courts below can well be supported and consequently there is no need to interfere in the matter in the second appellate jurisdiction. He, therefore, prayed for dismissal of the suit. An interesting question of law has arisen in this matter and, therefore, it is imperative to notice certain facts. 3. The present appellant-plaintiff had filed Reg. C. S. No. 131/1974 in the same subject matter about partition of the suit property. During the pendency of the said suit, the present appellant-plaintiff had filed application Exh.77 for withdrawal of the said Reg.C.S. No. 131/1974 stating therein that the dispute in the suit was settled out of the Court between the parties who are closely related and, therefore, there was a compromise and the plaintiff did not want to prosecute the suit against the defendants. It was also stated that nothing remained to be received from the defendants. It is an admitted fact that the said suit was withdrawn without any liberty for filing the second suit. The appellant-plaintiff then filed second suit i.e. the present suit being Reg.C.S.No.159/1985. In the second suit, the plaintiffs averred that Panchayat was held on 10.06.1984 at Mouja Malegaon after death of Mahadeo Nikose all the more so because the partition was never made before or after the death of Mahadeo despite the withdrawal of the earlier Reg.C.S. No. 131/1974 and, therefore, the cause of action arose on 10.06.1984 when the defendants refused to give partition. It is in this background the question arose; whether the second suit filed by the appellant-plaintiff after withdrawing the first suit without any liberty from the court, in relation to the partition of the same suit properties was maintainable or not? The learned appellate Court has held that the said suit was not maintainable and would be hit by principles of Order 23 Rule 1 of the Code of Civil Procedure namely; withdrawal of the suit without any liberty. 4. Upon hearing, learned counsel for the rival parties and upon considering various decisions cited by learned counsel for the appellant, following substantial question of law arises for my consideration: “(i) Whether after withdrawal of the first suit Reg. C. S. No. 131/1974 unconditionally or without any liberty from the court in the matter of partition of the suit properties, the appellant-plaintiff could file second Reg. C. S. No.159/1985 for partition on the ground that in fact the partition was not made and Mahadeo Nikose had also expired? Answer : Yes. (ii) What order? Answer : Reg. C. A. No. 197/1992 is remitted to the lower appellate court for fresh hearing on merits and disposal in accordance with law.” 5. The aforesaid question fell for consideration in the case of Bisheshar Das & anr. vs. Ram Prasad & anr.; (1) (1891) I.L.R. 13 All, 309 and in relation to above question, the Full Bench of Allahabad High Court Held thus: “The principle laid down in the case of Nasratullah v. Mujibullah and others appears to us to govern this case. The aforesaid question fell for consideration in the case of Bisheshar Das & anr. vs. Ram Prasad & anr.; (1) (1891) I.L.R. 13 All, 309 and in relation to above question, the Full Bench of Allahabad High Court Held thus: “The principle laid down in the case of Nasratullah v. Mujibullah and others appears to us to govern this case. In that case it was held that where a decree declaring a right to partition has not been given effect to by the parties and the decree has become by lapse of time or otherwise unenforceable, it is competent to the parties, or any of them, if they continue still to be interested in the joint property, to bring a fresh suit for a declaration of their right to partition. In the course of their judgment the learned Chief Justice, Sir John Edge, and one of us stated as follows:- “It has not been given effect to by the parties proceeding to partition in accordance with it, it is competent to the parties or any of them, if they still continue to be interested in the joint property, to bring another suit for a declaration of a right to a partition in case their right to partition is called in question at a time when by reason of limitation or otherwise they cannot put into effect the decree first obtained. In this respect suits for declaration of right to partition differ from most other suit. So long as the property is jointly held so long does a right to partition continue. When a person having a right to partition and desiring to partition, has his right challenged, it appears to us he can maintain a suit for a declaration, provided his prior decree is not still enforceable.” As it appears to us, the right to enforce partition is a legal incident of a joint tenancy, and so long as such tenancy subsists so long may any of the joint tenants apply to the Court for partition of the joint property. For these reasons the Courts below have erred in dismissing the suit...” In Madan Mohan Mondul and ors. vs. Baikanta Nath Mondul and anr.; Vol. For these reasons the Courts below have erred in dismissing the suit...” In Madan Mohan Mondul and ors. vs. Baikanta Nath Mondul and anr.; Vol. X The Calcutta Weekly Notes 839, the Calcutta High Court held thus : “Moreover, as pointed out in the case of Nasratullah v. Mujibullah (1) “When a decree declaring a right to partition has not been given effect to by the parties proceeding to partition in accordance with it, it is competent for the parties or any of them, if they still continue to be interested in the joint property, to bring another suit for a declaration of a right to partition in case their right to partition is called in question at a time when by reason of limitation or otherwise, they cannot put into effect the decree first obtained. In this respect, suits for declaration of right to partition differ from most other suits. So long as the property is jointly held, so long does a right to partition continue.” The Nagpur High Court in the case of Abdul Majid Kha s/o Mahebubkha vs. Mahmudabi w/o Bahadurkha; AIR (36) 1949 Nagpur 366 also held thus: 7. There would seem to be no doubt about the plaintiff's remedy by a separate suit against defendant 11. If she had not included in the present suit her claim for share in the lands in possession of the applicant (defendant 11) and had reserved it for a separate suit, there would not have been a bar of O. 2 R.2, Civil P. C., because the claim against defendant 11 is on a separate cause of action from the claims against the other defendants in the suit. That being so, how did the plaintiff destroy her right of separate suit by telling the Court that she did not want to proceed in this suit the cause of action against defendant 11? The application was not for recording a compromise and the order, dated 2nd April 1946, cannot operate as a consent decree. It amounts only to a dismissal of the plaintiff's claim for want of prosecution so far as the applicant was concerned. This did not involve any decision on merits that the plaintiff did not have any right to the lands in suit alleged to be in possession of defendant 11. It amounts only to a dismissal of the plaintiff's claim for want of prosecution so far as the applicant was concerned. This did not involve any decision on merits that the plaintiff did not have any right to the lands in suit alleged to be in possession of defendant 11. Though she stated in the application that she abandoned her claim to the lands in his possession, that could not extinguish her rights without a formal deed executed by her and registered or without a decree of the Court. Her right to a share, if any, of the lands has not been lost. The right to demand partition and separate possession is a recurring right. If the plaintiff, for any reason, decided on 2nd April 1946 not to enforce the right immediately, she should be deemed to have chosen to continue the tenancy in common for some time ore till she would find it necessary to seek its termination. A suit which is barred by withdrawal of the claim under O. 23 R 1(3) is one which is based on the same cause of action but a suit for partition and separate possession of the share which may now be brought will be on a cause of action arising upon a demand now made and refused: Radhe Lal v. Mulchand, 46 ALL. 820 : (A.I.R. (11) 1924 ALL. 905). If defendant 11 made a promise to give an equal area out of his other lands and if that is enforceable in law, the plaintiff can sue for specific performance of that contract and, in the alternative, make a claim on the original cause of action for share in the lands of her father. (8) The remedy of a suit being open to the plaintiff against defendant 11 she has a chance of getting justice as she may be entitled to and there would be no justification for invoking the inherent powers of the Court under S. 151, Civil P. C. in her aid.” 6. From the perusal of the above decisions, it is clear that a fresh suit for partition by the same plaintiff in respect of the same subject matter is not barred under Order 23 Rule 1 (3) as the cause of action for partition is recurring one. From the perusal of the above decisions, it is clear that a fresh suit for partition by the same plaintiff in respect of the same subject matter is not barred under Order 23 Rule 1 (3) as the cause of action for partition is recurring one. In the instant case, it is seen from the stand taken by respondents in the written statement dated 08.09.1986 that there is no assertion of giving any share to the plaintiff post withdrawal of the earlier suit as aforesaid but the opposition to the suit was mainly based on Order 23 Rule 1 (3) of the Code of Civil Procedure. 7. In the light of the law laid down by various High Courts and the Nagpur High Court in the aforesaid case, this Court would respectfully follow the dictum laid down above and as a result, it will have to be held that the second suit filed by the appellant-plaintiff was maintainable and consequently the finding recorded by lower appellate court that the suit was not maintainable will have to be set aside. Though, the principles of res judicata may not have any application in the facts of the present case, the learned counsel for the appellant has cited a decision in the case of Sheodan Singh vs. Daryao Kunwar; AIR 1966 SC 1331 (1). In para 13, it has been held that in the absence of decision on merits in the former suit, the principles enunciated under Section 11 of the Code of Civil Procedure are not attracted. I quote following portion of the said judgment thus: “13. Reliance in this connection is placed on the wellsettled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. I quote following portion of the said judgment thus: “13. Reliance in this connection is placed on the wellsettled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff 's appearance, or on the ground of nonjoinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit.” Though as contended by Mr. Zoting, learned counsel for the respondents, the trial Court has examined the matter on merits, the lower appellate court has, however, not decided the first appeal on merits but has dismissed the appeal only on the ground that it was not maintainable as aforesaid. 8. In my opinion, the first appellate court namely; lower appellate Court being the court of facts ought to decide the appeal on facts and evidence of the matter again and hence in my opinion, following order would sub-serve the interest of justice. ORDER (i) Second Appeal No. 204/2000 is partly allowed. (ii) The impugned judgment and decree dated 06.03.2000 passed by 2nd Addl. District Judge, Nagpur in Reg. C.A. No. 197/1992 is set aside. Proceedings of Reg. C.A. No.197/1992 are remitted to the lower appellate court for hearing of the said appeal on merits. (iii) All the questions of facts as well as law other than the one decided by me, are kept open. The lower appellate court shall now take up the appeal and dispose it of on merits upon hearing both the sides. C.A. No.197/1992 are remitted to the lower appellate court for hearing of the said appeal on merits. (iii) All the questions of facts as well as law other than the one decided by me, are kept open. The lower appellate court shall now take up the appeal and dispose it of on merits upon hearing both the sides. (iv) Parties to this appeal shall appear before lower appellate Court on 19.08.2014. The lower appellate Court shall decide the appeal as expeditiously as possible and in any case within a period of 10 months from the date of first appearance before the lower appellate Court. No order as to costs.