Judgment 1. Rule. Heard finally. 2. Challenge in the present writ petition is to the order dated 19.12.2013 passed by the Appellate Court allowing the Misc. Civil Appeal filed by the present respondents and setting aside the order passed by the trial court dismissing Regular Civil Suit No.279/2007 under the provisions of Order 9 Rule 9 of the Code of Civil Procedure (for short the Code). 3. The relevant facts are that one Kasabai Pote, the predecessor of the present respondents had filed Regular Civil Suit No.851/1998 for partition of agricultural land bearing survey nos.56 and 57. It was the case of the said Kasabai that the land in question belonged to her father and that same was ancestral property. After the death of her father, the predecessor of the present petitioner her brother was looking after the said property. Hence, suit for partition and separate possession came to be filed. Her brother – Narayan was arrayed as defendant. On 30.07.2002 Regular Civil Suit No.851/1998 came to be dismissed for want of prosecution. Thereafter, no steps were taken to restore the suit. 4. After the death of Kasabai her legal heirs who are the respondents herein filed Regular Civil Suit No.279/2007 stating therein that they were entitled for partition of the suit properties in their capacity as being children of Kasabai. The aforesaid suit was filed against the present petitioners. Written statement came to be filed by the present petitioners opposing the suit. During pendency of the said suit an application vide Exh.42 came to be filed by the defendants stating therein that as the earlier suit filed by Kasabai had been dismissed in default and the same was never restored, the subsequent suit filed by legal heirs of Kasabai was not tenable and the same was barred under law. The trial court on 05.04.2011 held that as the earlier suit was dismissed for want of prosecution the subsequent suit seeking identical reliefs was not tenable and hence, proceeded to reject the plaint by holding that the suit was barred by provisions of Order 9 Rule 9 of the Code. The trial court on 05.04.2011 held that as the earlier suit was dismissed for want of prosecution the subsequent suit seeking identical reliefs was not tenable and hence, proceeded to reject the plaint by holding that the suit was barred by provisions of Order 9 Rule 9 of the Code. This rejection of the plaint was challenged by the original plaintiffs by filing a Miscellaneous Civil Appeal and the Appellate Court vide its order dated 19.12.2013 allowed said appeal on the ground that the cause of action for seeking partition was a continuous cause of action and hence, the dismissal of the earlier suit would not bar the filing of the subsequent suit. This order is under challenge at the instance of the original defendants. 5. Smt. V.N. Chitnavis, learned counsel appearing for the petitioners submitted that the earlier suit seeking relief of partition and separate possession of the very same property had been dismissed in default and said suit was never restored. As the legal heirs of Kasabai were claiming through their mother, the bar under the provisions of Order 9 Rule 9 of the Code was applicable and hence, a fresh suit based on the same cause of action was not tenable. By relying upon the decision of the Supreme Court in AIR 1965 SC 295 Suraj Rattan Thirani and others v. Azamabad Tea Co. Ltd. and others, it was submitted that the word “plaintiff” would include legal representatives of the plaintiff even for the purposes of Order 9 Rule 9 of the Code and hence, the subsequent suit at the instance of the legal representatives of Kasabai was not tenable. Learned counsel also placed reliance on the decision of the Supreme Court in AIR 1980 SC 1655 M/s. Parasram Harnand Rao v. M/s. Shanti Parsad Narinder Kumar Jain and another as well as the decisions of learned Single Judge in 2003(1) Mh.L.J. 472 Darachand Harakchand Oswal and others v. Suresh Waman Karmarkar and another and 1998(3) Mh.L.J. 252 Pratapchand Lakhamaji Jain v. Smt. Lilabai Krishanath Surve. It was therefore, submitted that the Appellate Court was not justified in holding that the subsequent suit for partition and separate possession was tenable. 6. None has appeared on behalf of the respondents though served. However, with the assistance of the learned counsel for the petitioners, I have gone through the pleadings of the parties that are placed on record. 7. 6. None has appeared on behalf of the respondents though served. However, with the assistance of the learned counsel for the petitioners, I have gone through the pleadings of the parties that are placed on record. 7. The fact that Regular Civil Suit No.851/1998 was filed by Kasabai for partition and separate possession of the ancestral property and its subsequent dismissal for want of prosecution on 30.07.2002 is not in dispute. It is further not in dispute that the subsequent suit has been filed by the legal heirs of Kasabai seeking partition of very same property that was the subject-matter of Regular Civil Suit No.851/1998. The issue for consideration is whether the suit for partition and separate possession filed by the legal heirs of the plaintiff is tenable despite dismissal of an earlier suit for partition and separate possession filed by the predecessor of the plaintiffs for want of prosecution. 8. For deciding aforesaid issue it would be first necessary to consider whether the right to file suit for partition can continue as long as the property continues to be jointly held. This aspect has been considered by the Full Bench of the Allahabad High Court in the case of Nasratullah v. Mujibullah and ors. reported in (1891) ILR 13 Allahabad 309. In said decision it was held as under: “It appears to us that 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 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 suits. So long as the property is jointly held so long does a right to partition continue. 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. 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 enforcible.” From the aforesaid it is, therefore, clear that as long as the status of the property in question continues to be joint, the relief of partition can be sought. 9. According to the learned counsel for the petitioners as the plaintiffs were claiming as legal representatives of Kasabai they were precluded from filing the fresh suit in view of the provisions of Order 9 Rule 9 of the Code. In Suraj Rattan (supra) that was relied upon by the learned counsel for the petitioner, the proceedings arose from a suit seeking declaration of title and possession of landed property. One Ismail had borrowed certain amounts after depositing title deeds of the mortgaged property. As the amount borrowed was not repaid, suit for enforcement of the mortgage was filed which came to be decreed. The property in question came to be sold in public auction and the same was purchased by the respondent therein. The legal heirs of one of the co-sharers filed suit for setting aside the sale in favour of the respondent therein. The suit was however dismissed in default. Thereafter the subsequent purchasers filed another suit seeking declaration of title as stated aforesaid. In that context, it was observed by the Supreme Court that the word “plaintiff” as used in Order 9 Rule 9 of the Code would include the assigns and legal representatives of the plaintiff. It was found that the cause of action in the subsequent suit was similar to the cause of action in the former suit. In the present case the entitlement of the respondents cannot be defeated in view of the fact that after the death of Kasabai the present respondents as her survivors were entitled to file suit for partition of the joint family property. The cause of action to seek partition continued due to jointness of the suit property and the plaintiffs in their own right were entitled to claim partition. The cause of action to seek partition continued due to jointness of the suit property and the plaintiffs in their own right were entitled to claim partition. Hence, the ratio of said decision cannot apply to the facts of the present case. 10. The question whether withdrawal of an earlier suit for partition without obtaining any liberty for filing a fresh suit would attract the bar of provisions of Order 23 Rule 1 of the Code has been considered by learned Single Judge in 2014(5) Mh.L.J. 772 Laxmanrao Mahadeo Nikose v. Narayan Mahadeo Nikose and others. After considering various decisions it was held that the cause of action for seeking partition was recurring in nature and hence, withdrawal of the earlier suit without any liberty would not bar filing of a fresh suit for partition. In Asha Sharma and others v. Amar Nath and others reported in AIR 2003 H.P. 32 , it has been held that a joint owner can file a suit for partition until partition is actually effected irrespective of the fact that earlier suits for such partition were dismissed in default or an earlier decree for partition was not acted upon. The reliance placed by the Appellate Court on the judgment of the Division Bench of the Punjab High Court in Manohar Lal Behari Lal v. Onkar Das alias Omkar Dass, AIR 1959 Punjab 252 also supports aforesaid conclusion. 11. Considering aforesaid legal provision it is clear that dismissal of Regular Civil Suit No.851/1998 filed by Kasabai for want of prosecution would not bar the maintainability of Regular Civil Suit No.279/2007 that has been filed by the legal heirs of Kasabai for partition. The decisions in Darachand (supra) and Pratapchand (supra) do not assist the case of the petitioners as said adjudication was not in relation to a suit for partition but same was under the Bombay Rent Act. As noted above, in so far as relief of partition is concerned the same stands on a different footing and legal heirs are entitled to file suit for partition even if a suit filed by their predecessor has been dismissed for want of prosecution. For same reason the decision in M/s. Parasram (supra) also does not apply to the case in hand. 12. For same reason the decision in M/s. Parasram (supra) also does not apply to the case in hand. 12. In view of the discussion made herein above, it is clear that the Appellate Court rightly held that the order passed by the Trial Court dismissing Regular Civil Suit No.279/2007 cannot be sustained is legally correct. The Appellate Court has rightly held that the right to enforce partition continued to subsist. As the Appellate Court has rightly restored Regular Civil Suit No.279/2007, there is no reason whatsoever to interfere with the impugned order. The writ petition is, therefore, dismissed with no order as to costs. Rule stands discharged.