JUDGMENT : This is plaintiff’s regular first appeal assailing the judgment and decree dated 11.11.1974 passed by Additional District Judge, Alwar (for short ‘the trial court’) whereby the civil suit filed by him for partition and possession of the properties in dispute, has been dismissed. Defendant-respondent has also filed counter-claim in the appeal questioning the findings recorded by the trial court especially on Issue No. 7, extending benefit of Section 14 of the Limitation Act to the plaintiff-appellant. The appellant-plaintiff(hereinafter referred to as ‘the plaintiff’) in the suit pleaded that he was nephew of defendant Bhajan Lal (hereinafter referred to as ‘the defendant’). Shri Buddhilal, who died in 1937, was their common ancestor. Ancestral property of Buddhi Lal, who died in 1937, were partitioned. Budhi Lal left surviving seven sons. Two of them namely Jagan Prasad, deceased, through his son Bala Bux (original plaintiff herein) and Bhajan Lal(original defendant herein) even after partition remained joint and held the properties and business jointly in respect of their shares. All such properties inherited by both of them remained joint in the hands of the two. Since then, plaintiff and defendant carried on their joint business at more than one place in the name and style of firm M/s. Bhajanlal Bala Bux. The said firm had its headquarter at Khedli, District Alwar and owned huge movable and immovable properties. Properties, which were sought to be partitioned and of which possession was sought to be taken, were enumerated in Schedule ‘Ka’ appended to plaint. Property described at Serial No. 4 of the Schedule ‘Ka’ appended to plaint had fallen in the share of the plaintiff by an award between the parties dated 29.05.1938. Since it was not possible for the parties to carry on the business together, the firm was closed down in the year 1939. Both the parties entered into an agreement on 30.05.1939 which was registered on 01.06.1939 whereby they decided to refer their disputes to the arbitration. Shri Hira Lal, Shri Bhola Nath and Shri Johari Lal were appointed as arbitrators to give award and settle the dispute regarding all the movable and immovable properties of the firm. Arbitrators gave their first award on 31.07.1939 giving the movable properties of the firm to defendant and directing him to pay a sum of Rs. 20,201/-to plaintiff in lieu thereof. Arbitrators gave their first award on 31.07.1939 giving the movable properties of the firm to defendant and directing him to pay a sum of Rs. 20,201/-to plaintiff in lieu thereof. Second award with regard to immovable assets of the firm was passed on 12.05.1941. Properties enumerated at Serial No. 4 to 9 in the Schedule ‘Ka’ appended to plaint were declared to be held by the firm and it was further declared that heirs of Buddhilal should not be affected so far as these properties are concerned. With regard to properties enumerated at Serial No. 1 to 3 in the Schedule ‘Ka’ appended to plaint, plaintiff was found to be entitled to have his share and possession of the properties by the award dated 12.05.1941. Defendant, in pursuance of the direction made in the first award dated 31.07.1939, paid a sum of Rs. 15,001/-to plaintiff in lieu of movable properties and a sum of Rs. 5,200/-remained outstanding. Defendant then became the owner of the firm and name of the firm was also changed to M/s. Bhajan Lal Magan Lal. It was further pleaded that when defendant failed to carry out directions given by arbitrators under the aforesaid two awards dated 31.07.1939 and 12.05.1941, plaintiff filed two suits in the Court of District Judge, Alwar, one for recovery of the sum, which remained outstanding pursuant to the first award and another for possession of immovable properties as per the award dated 12.05.1941. These two suits were registered at Serial No. 3 and 4 of 1942 respectively. District Judge, Alwar consolidated both the suits and disposed off them together vide judgment dated 25.05.1955. While Suit No. 3 of 1942 was decreed for a sum of Rs. 5,200/-in favour of plaintiff, Suit No. 4 of 1942 was dismissed on the premise that award dated 12.05.1941 had not been registered, therefore, it being an inadmissible piece of evidence, suit could not be decreed. Plaintiff preferred an appeal against the aforesaid judgment and decree before this Court. Single Bench of this Court dismissed the appeal vide judgment dated 12.12.1960 and upheld judgment of District Judge, Alwar dated 25.05.1955. Special appeal filed against judgment of Single Bench of this Court was also dismissed by Division Bench of this Court vide judgment dated 27.04.1965. Plaintiff preferred an appeal against the aforesaid judgment and decree before this Court. Single Bench of this Court dismissed the appeal vide judgment dated 12.12.1960 and upheld judgment of District Judge, Alwar dated 25.05.1955. Special appeal filed against judgment of Single Bench of this Court was also dismissed by Division Bench of this Court vide judgment dated 27.04.1965. The plaintiff had been, up till now, contesting on the basis of award dated 12.05.1941, but since his claim had been rejected on the ground of award being inadmissible, he filed present suit on 31.05.1966 claiming his right on the basis of title. Plaintiff prayed for partition of properties described at Serial No. 1, 2 and 3 of the Schedule ‘Ka’ appended to plaint and also prayed for possession of property described at Serial No. 4 in the aforesaid Schedule ‘Ka’. He also prayed for mesne profit amounting to Rs. 1,500/-for properties of the first category and a sum of Rs. 500/-per year as future mesne profit. With regard to property described at Serial No. 4 of Schedule ‘Ka’ appended to plaint, he also claimed Rs. 900/-as mesne profit for the period prior to institution of suit and Rs. 300/-per year as future mesne profit. As regards limitation, plea of plaintiff was that since he has been prosecuting his claim with all sincerity and reasonableness in the court of the District Judge, Alwar and before this Court from 1942 to 1965, he was entitled to benefit of provisions of Section 14 of the Limitation Act, 1963. Plaintiff also pleaded that the points, which had already been decided in the previous Suits No. 3 and 4 of 1942 by District Judge, Alwar and this Court, on merits, had become res judicata against defendant now. Defendant contested suit by filing written statement wherein he admitted all the factual position of the case right from the fact of carrying on business in the name of the firm to the last point of litigation, but denied altogether claim of plaintiff and also disputed validity and existence of second award. It was denied that properties of Buddhilal and his sons were joint family properties. Even though Bhajan Lal and Bal Bux had joint business, but each one of them contributed their own capital. Both had separate movable and immovable properties and were in possession thereof. It was denied that properties of Buddhilal and his sons were joint family properties. Even though Bhajan Lal and Bal Bux had joint business, but each one of them contributed their own capital. Both had separate movable and immovable properties and were in possession thereof. Properties described at Serial No. 1 and 3 of the Schedule ‘Ka’ appended to the plaint did not belong to firm M/s. Bhajan Lal Bala Bux, but were self acquired by defendant. Three shops referred to at Serial No. 2 of Schedule ‘Ka’ appended to the plaint, in fact, were only two shops and one godown behind them. They were purchased by father of defendant, who was in possession of the same for last more than 30 years as its owner. Defendant built two storeyed building by investing his money on such shops and godown about 20-22 years ago. Property mentioned at Serial No. 4 of Schedule ‘Ka’ appended to plaint was also acquired by father of defendant. Property mentioned at Serial No. 2 of the aforesaid Schedule ‘Ka’ had come to share of defendant during lifetime of his father and that he was put in possession thereof. Defendant was in possession of property mentioned at Serial No. 4 of the Schedule ‘Ka’ appended to plaint for last about 35 years as its owner and was recovering rent thereof. Possession of defendant was hostile to plaintiff and plaintiff was never in possession of any of properties from Serial No. 1 to 4 referred to in the Schedule ‘Ka’ appended to plaint. It was denied that both the parties were jointly in possession of those properties. In fact, defendant had exclusive possession thereof. Properties mentioned at Serial No. 5 to 9 of Schedule ‘Ka’ appended to the plaint were joint properties, which were in possession of different persons as per their share. It was admitted that there were certain differences between parties in 1937 leading to closure of business of the firm M/s. Bhajan Lal Bala Bux. In order to resolve the dispute, parties entered into an agreement dated 30.05.1939(registered on 01.06.1939) and thereby appointed three arbitrators, but it was denied that the firm had any property, which was required to be partitioned. Arbitrators required defendant to pay to plaintiff a sum of Rs. 20,201/-and one safe (tijori) and defendant paid the aforesaid amount to plaintiff. In order to resolve the dispute, parties entered into an agreement dated 30.05.1939(registered on 01.06.1939) and thereby appointed three arbitrators, but it was denied that the firm had any property, which was required to be partitioned. Arbitrators required defendant to pay to plaintiff a sum of Rs. 20,201/-and one safe (tijori) and defendant paid the aforesaid amount to plaintiff. It was further pleaded that in fact there was only one award dated 31.07.1939. It was denied that any award dated 12.05.1941 was delivered by the arbitrators. Suit No. 4/1942 was rightly dismissed as no such suit could be maintained on the basis of unregistered award. Defendant filed cross objections in Suit No. 3/42, but he did not file any cross appeal. Property mentioned at Serial No. 2 of the Schedule ‘Ka’ appended to plaint was not included in Suit No. 4/1942, which covered only one shop on southern side. Property mentioned at Serial No. 3 of Schedule ‘Ka’ appended to plaint were personal property of defendant and it did not belong to the firm M/s. Bhajan Lal Bala Bux. Earlier suit filed by plaintiff in this behalf had already been dismissed against them. Plaintiff was never in possession of such properties. It was denied that plaintiff was entitled to any mesne profit. Objection was raised by defendant that suit was time barred. Date of dissolution of firm has also not been correctly indicated. The firm was actually closed down in the year 1938. Properties in dispute came to exclusive possession of defendant more than 30 years ago. Even in the written statement filed in earlier suit on 07.01.1943, defendant claimed exclusive possession of properties in dispute. As 23 years had elapsed since then, therefore, present suit cannot be considered within limitation. Plaintiff was not entitled to exclusion of period from 25.07.1942 to 27.04.1965. Suit filed in May, 1966 has to be dismissed as time barred. Provisions of Section 14 of the Limitation Act, 1963 are not applicable to facts of the present case. Award was passed at Bharatpur and, therefore, suit on that basis cannot be filed at Alwar. The trial court on the basis of pleadings of the parties framed the following issues: (1) Whether properties of sons of Buddhilal were joint family properties? Provisions of Section 14 of the Limitation Act, 1963 are not applicable to facts of the present case. Award was passed at Bharatpur and, therefore, suit on that basis cannot be filed at Alwar. The trial court on the basis of pleadings of the parties framed the following issues: (1) Whether properties of sons of Buddhilal were joint family properties? (2) Whether five shops and one godown mentioned at Serial No. 1, 2 and 3 of the Schedule ‘Ka’ appended to plaint were properties of the firm M/s. Bhajan Lal Bala Bux? (3) Whether properties mentioned at Serial No. 4 in Schedule ‘Ka’ appended to the plaint were that of the firm M/s. Bhajan Lal Bala Bux? (4) Whether properties mentioned at Serial No. 4 in the Schedule ‘Ka’ appended to plaint came to share of defendant and defendant was in possession of the same for last 35 years as its owner? (5) Whether plaintiff had filed suit earlier with regard to properties mentioned at Serial No. 1 and 2 of the Schedule supra and if so, what is effect thereof on the present suit? (6) Whether the suit is within limitation? (7) Whether plaintiff as per Section 14 of Limitation Act was entitled to exclusion of period from 25.07.1942 to 27.04.1965 for computation of limitation in present suit? (8) Whether the suit was barred by principle of res judicata? (9) Whether plaintiff was entitled to a sum of Rs. 500/-as annual mesne profit? (10) Whether plaintiff is entitled to partition of properties mentioned at Serial No. 1, 2 and 3 of Schedule ‘Ka’ appended to plaint and get 1/2 share thereof? (11) Whether the suit can be maintained on the basis of award delivered at Bharatpur? (12) Relief? Learned trial court vide its judgment and decree dated 11.11.1974 dismissed the suit filed by plaintiff, but decided Issue No. 1, 2, 3, 4, 6, 7, 9, 10 and 11 in favour of plaintiff and held that plaintiff was entitled to partition on the basis of title and he was also entitled to have possession of property described at Serial No. 4 of Schedule ‘Ka’ appended to plaint. Trial court also decided the question of limitation in favour of plaintiff and held that present suit was within period of limitation. Trial court also decided the question of limitation in favour of plaintiff and held that present suit was within period of limitation. However, learned trial court gave benefit of provisions of Section 14 of the Limitation Act only up to 12.12.1960 when the suit was decided and not for any period thereafter. Trial court decided Issue No. 5 and 8 against plaintiff and in favour of defendant, which led to eventual dismissal of suit. It was held therein that decision of District Judge, Alwar in original suits filed in 1942 and decision of Single Judge of this Court in appeal arising out of that suit operated as constructive res judicata against plaintiff, as he failed to claim all the relief in the previous suits and he was not competent to bring fresh suit on the basis of the title. Plaintiff-appellant has, therefore, approached this Court by filing present appeal. Mr. R.K. Agarwal, learned Senior Counsel appearing on behalf of plaintiff-appellant has argued that trial court, while deciding all other issues in favour of plaintiff, erred in law in deciding Issue No. 5 and 8 against plaintiff despite its finding on other issues that plaintiff on the basis of title was entitled to partition as also possession of the properties enumerated in the Schedule ‘Ka’ appended to plaint. Learned District Judge, Alwar in suits of 1942 also held plaintiff entitled to possession of properties in accordance with terms of award and learned Single Judge of this Court in appeal against that judgment also held that second award of 1942 was also valid one and was very much in existence. But, in earlier suit, award could not be made a rule of the court and suit could not be decreed because award was not registered, as required under Indian Registration Act and therefore, it was held inadmissible piece of evidence. Question of admissibility or otherwise, of a document is a pure and simple question of technicality, which cannot operate as res judicata against a party, if it can independently set up and prove his claim based on title. Claim of plaintiff has not been rejected either in earlier suit or in present suit. It is argued that principle of constructive res judicata enumerated in Explanation IV of Section 11 CPC does not apply to present case. Dismissal of earlier suit cannot operate as res judicata against plaintiff. Claim of plaintiff has not been rejected either in earlier suit or in present suit. It is argued that principle of constructive res judicata enumerated in Explanation IV of Section 11 CPC does not apply to present case. Dismissal of earlier suit cannot operate as res judicata against plaintiff. Trial court has erred in law in holding that when plaintiff previously filed suit against defendant, two different remedies were available to the plaintiff; one by making award rule of the Court and another by filing a suit on the basis of title. Even if earlier suit filed on the basis of award was not decreed as it was not registered, filing of fresh suit by plaintiff on the basis of title now cannot be taken as barred by res judicata. Learned Senior Counsel argued that had the former suit been decided on merits and plaintiff’s claim had been rejected on merits not on technicality, judgment in the former suit would have operated as res judicata against plaintiff, but not otherwise. Question with respect to the property mentioned at Serial No. 4 of Schedule ‘Ka’ appended to plaint had been decided by award of 1938 by arbitrators, which operates as res judicata against defendants. Since this property had been declared to have fallen to the share of plaintiff vide other judgments dated 26.05.1951, 11.05.1953 and 27.05.1954(Exhibit P8/1, Exhibit 11 and 6 respectively), present suit was liable to be decreed. It is argued that there was no warrant for the observation by learned trial court that the appellant-plaintiff should have asked for amendment in the previous suit at the stage of appeal before this Court, which in any case would not have been desirable looking to the lapse of time. Fresh suit could not be taken as barred on the basis of res judicata. It is argued that benefit of Section 14 of the Limitation Act should have been extended to plaintiff-appellant up to 27.04.1965, when his special appeal was rejected by Division Bench of this Court, as he had been prosecuting his claim up to this date with due care and diligence. Trial court was unjustified in drawing inference of the fact that plaintiff having known result of his appeal by the Single Judge still pursued special appeal before Division Bench, which cannot be taken as bonafide. Trial court was unjustified in drawing inference of the fact that plaintiff having known result of his appeal by the Single Judge still pursued special appeal before Division Bench, which cannot be taken as bonafide. Reliance, in this connection, is placed upon recent judgment of the Supreme Court in M.P. Steel Corporation Vs. Commissioner of Central Excise, (2015) 7 SCC 58 . It is argued that before a question can operate as res judicata, it should be decided and must have remained directly and substantially in issue between the same parties, claiming under the same title in a competent court. Learned Senior Counsel argued that original cause of action, i.e. claim on the basis of title never merged with the award and, therefore, subsequent suit on the basis of title for partition and possession cannot be said to be barred by res judicata. Considering defendant to be in adverse possession of the property from this date time tabulated for the purpose of limitation since 01.11.1942 is absolutely incorrect. A co-sharer cannot be said to be holding property in possession adversely against other co-sharers. Such possession is always permissive and never adverse. By no stretch of imagination, principle of constructive res judicata would apply because suit was earlier dismissed on the ground of non-registration of an award and a fresh suit was filed on the basis of title. While earlier suit was based on the award, the present suit was based on title, which could be proved even in the absence of award. Learned Senior Counsel relied on the judgment of the Supreme Court in Md. Mohammad Ali(Dead) by LRs. Vs. Jagadish Kalita & Others, (2004) 1 SCC 271 and argued that possession of property by a co-sharer is deemed to be possession on behalf of other co-sharers, unless there is a clear ouster by denying title of the other co-sharers. Mere long and continuous possession by itself is not enough. In a suit governed by Article 65 of the Limitation Act, 1963, plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908 that he was in possession, within 12 years preceding the filing of the suit. According to learned Senior Counsel, there is no limitation prescribed for a suit by a co-sharer to claim his possession. According to learned Senior Counsel, there is no limitation prescribed for a suit by a co-sharer to claim his possession. This position has been changed in the Limitation Act, 1963, under Article 65. Reliance in this connection has been placed on judgment of the Supreme Court in Indira Vs. Arumugam & Another, (1998) 1 SCC 614 wherein it was held that under Article 142 of the Limitation Act, 1908, the plaintiff had to prove not only title but also possession within 12 years of the date of the suit which position has since been changed under Article 65 of the Limitation Act, 1963. Learned Senior Counsel argued that there is no limitation for filing partition suit at the instance of co-owner, which right gives rise to a recurring cause of action. In this connection, reliance is placed on judgment of the Supreme Court in Syed Shah Ghulam Ghouse Mohiuddin & Others Vs. Syed Shah Ahmed Mohiuddin Kamisul Quadri (Died) By LRs & Others, (1971) 1 SCC 597 wherein it was held that the cause of action for partition of properties is a perpetual and recurring one. Possession of one co-owner is not by itself adverse to other co-owners. On the contrary, possession of one co-owner is supposed to be on behalf of all other co-owners unless it is established that possession of the co-owner is in denial of title of co-owners and possession is in hostility to co-owners by exclusion of them. Reliance is also placed on judgment of the Supreme Court in Karnataka Board of Wakf Vs. Government of India & Others, (2004) 10 SCC 779 , wherein it is held that pleas of adverse possession and title are mutually inconsistent. Referring to the pleadings of earlier suit(Exhibit A1/12), learned Senior Counsel argued that earlier suit was filed for recovery of a sum of Rs. 5,200/-. Cause of action was referred to in para 5 of the plaint, which was to implement the award. There was no pleading with regard to ownership, which fact has been admitted by defendant in para 2 of written statement filed in the earlier suit(Exhibit A2/13). Defendant, in his written statement filed in earlier suit, did not take any specific plea of adverse possession. Unless it was asserted that defendant was owner to the knowledge of plaintiff, he could not have claimed exclusive ownership and his possession cannot become adverse to plaintiff. Defendant, in his written statement filed in earlier suit, did not take any specific plea of adverse possession. Unless it was asserted that defendant was owner to the knowledge of plaintiff, he could not have claimed exclusive ownership and his possession cannot become adverse to plaintiff. There is no law even otherwise that by mere writing in written statement, defendant can claim adverse possession. Reliance has also been placed on the judgment of the Supreme Court in Karnataka Board of Wakf(supra). Learned Senior Counsel argued that no date was given in the written statement as to when possession became adverse to plaintiff. Plea of adverse possession is not available to one co-owner as against another co-owner unless ouster is proved. It was pure and simple suit of partition. Learned Senior Counsel in support of his arguments relied upon the judgment of this Court in Birdhi Chand Sumermal Vs. Ramdeo, RLW 1970 Page 148, which according to him is substantially identical to the present case. It is argued that cause of action for filing present suit is entirely different than the one on which earlier suit was founded. Order 2 Rule 2 CPC refers to same cause of action and not different cause of action. Learned Senior Counsel, to bring home the point, relied on recent judgment of the Supreme Court in Rathnavathi & Another Vs. Kavita Ganashamdas, (2015) 5 SCC 223 . Reliance is also placed upon another judgment of the Supreme Court in Kunjan Nair Sivaraman Nair Vs. Narayanan Nair & Others, (2004) 3 SCC 277 , judgments of this Court in Smt. Dev Kanwar & Ors. Vs. Shri Shambhu Singh & Others, 1996 (1) WLN Page 385; Shyamsunder Vs. Mst. Chand Bai & Others, AIR 1962 Rajasthan 96; judgment of Himachal Pradesh High Court in Asha Sharma & Others Vs. Amar Nath & Others, AIR 2003 Himachal Pradesh 32(1); decision of Patna High Court in Santan Narain Tewari Vs. Saran Narain Tewari and Others, AIR 1959 Patna 331. Per contra, Mr. S.M. Mehta, learned Senior Counsel appearing on behalf of defendant-respondent opposed the appeal and submitted that trial court has rightly dismissed the suit as barred by constructive res judicata with reference to Order 2 Rule 2 CPC. Appellant-plaintiff ought to have set up alternative plea based on title in the old suit. Per contra, Mr. S.M. Mehta, learned Senior Counsel appearing on behalf of defendant-respondent opposed the appeal and submitted that trial court has rightly dismissed the suit as barred by constructive res judicata with reference to Order 2 Rule 2 CPC. Appellant-plaintiff ought to have set up alternative plea based on title in the old suit. He, having filed a suit on the basis of award and failed to secure the decree, cannot be now allowed to maintain subsequent suit on the ground of title. In the earlier suit, which was filed in the year 1941, written statement was submitted by defendant-respondent on 07.01.1943, in which defendant had categorically denied title of plaintiff-appellant and claimed exclusive ownership of the disputed properties. As per Article 65 of the Limitation Act, 1963, 12 years is the period of limitation from when possession of defendant becomes adverse. It is argued that that in para 30 of the impugned judgment, date of filing of written statement in earlier suit has wrongly been mentioned by trial court as 01.11.1942. Actually, written statement was filed on 07.01.1943 and therefore, the present suit could be filed only up to 07.01.1955, whereas the suit has been filed on 31.05.1966, which was, therefore, liable to be dismissed as barred by limitation. It is argued that earlier suit of appellant, having been dismissed, benefit of Section 14 of the Limitation Act would not have been extended to him in the present suit because appellant should have immediately filed present suit. But instead of doing that, he chooses to file first appeal before Single Bench of this Court and thereafter, special appeal before Division Bench of this Court. Benefit of Section 14 of the Limitation Act would not accrue to appellant-plaintiff for the period of pendency of first appeal and special appeal before this Court. Period from 02.11.1942 to 26.05.1955 was, therefore rightly excluded by the learned trial court in computing period of limitation. Learned Senior Counsel referred to written statement of defendant-respondent(Exhibit A/2) and argued that defendant in written statement had set up categorical plea of adverse possession. Period from 02.11.1942 to 26.05.1955 was, therefore rightly excluded by the learned trial court in computing period of limitation. Learned Senior Counsel referred to written statement of defendant-respondent(Exhibit A/2) and argued that defendant in written statement had set up categorical plea of adverse possession. In Para 1 of written statement, it was pleaded by defendant that defendant was owner of the shop M/s. Bhajan Lal Magan Lal, which was existing in the name of M/s. Bhajan Lal Bala Bux prior to 1939, but after 1939, defendant became sole proprietor of aforesaid firm, where business was being run in the name and style of M/s. Bhajan Lal Magan Lal and plaintiff-appellant has no claim whatsoever over the same. In para 3 of written statement, it was clearly stated that award of arbitrators was without jurisdiction and in para 4, it was also pleaded that plaintiff-appellant was not entitled to partition and possession of any of the properties. Learned Senior Counsel in support of his arguments relied upon judgment of the Supreme Court in Jagat Ram Vs. Varinder Prakash, AIR 2006 SC 1786 and argued that starting point for computation of period of 12 years with reference to Article 65 of the Limitation Act should be the date on which written statement in the previous suit was filed wherein aforementioned plea was set up by defendant. Learned Senior Counsel in this connection also relied upon the judgment of the Supreme Court in Amrendra Pratap Singh Vs. Tej Bahadur Prajapati & Others, (2004) 10 SCC 65 ; Kshitish Chandra Bose Vs. Commissioner of Ranchi, AIR 1981 SC 707 . Reliance is also placed on the judgment of the Apex Court in Ramiah Vs. N. Narayana Reddy (Dead) By LRs., (2004) 7 SCC 541 . Learned Senior Counsel also relied upon judgment of the Supreme Court in Foreshore Cooperative Housing Society Limited Vs. Praveen D. Desai (Dead) Through Legal Representatives & Others, (2015) 6 SCC 412 and argued that unless it was proved that earlier suit was prosecuted by the plaintiff with due diligence and good faith, he would not be entitled to benefit of Section 14 of the Limitation Act. Learned Senior Counsel relying on the judgment of the Supreme Court in Dadu Dayalu Mahasabha, Jaipur(Trust) Vs. Learned Senior Counsel relying on the judgment of the Supreme Court in Dadu Dayalu Mahasabha, Jaipur(Trust) Vs. Mahant Ram Niwas & Another, (2008) 11 SCC 753 argued that present suit has rightly been held to be barred by the provisions of Order 2 Rule 2 CPC because plaintiff-appellant failed to claim entire relief in earlier suit. Prerequisite condition for attracting provisions of Section 14 of the Limitation Act was the fact of jurisdiction or the like nature. Jurisdiction or the like nature remained with the court where the earlier suit was prosecuted in good faith or where the court even did not have jurisdiction. Since earlier suit was dismissed on merits after decision on all issues, provisions of Section 14 of the Limitation Act would not be attracted. Reliance in this connection is placed upon the judgment of the Supreme Court in Deena (Dead) Through LRs. Vs. Bharat Singh (Dead) Through LRs & Another, (2002) 6 SCC 336 . Mr. S.M. Mehta, learned Senior Counsel, while arguing on the cross-objection filed by the defendants-respondents as also assailing the findings recorded by the trial court with regard to property described at Serial No. 1 of the Schedule 'Ka' appended to plaint submitted that the trial court was wholly unjustified in holding that the said property was purchased by the firm M/s. Bhajan Lal Bala Bux because after purchase of the said property, defendant Bhajan Lal had not debited purchase money in the account books of the firm for the shop in dispute. Trial court has erred in drawing unwarranted inference that account books were with Bhajan Lal from the fact that moveable properties of the firm M/s. Bhajan Lal Bala Bux remained with Bhajan Lal. Magan Lal, one of the sons of Bhajan Lal, was in collusion with the plaintiff and, therefore, no reliance can be placed on his evidence regarding possession of account books of the firm. Patta of property described at Serial no. 1 of Schedule 'Ka' appended to plaint also stands in the name of Bhajan Lal. Plaintiff(P.W.1) has admitted in his cross examination that Bhajan Lal alone was giving this property on rent, which proves his possession. There was no justification for holding that property described at serial no. 1 of Schedule 'Ka' appended to plaint was of the firm and not of the defendant. Plaintiff(P.W.1) has admitted in his cross examination that Bhajan Lal alone was giving this property on rent, which proves his possession. There was no justification for holding that property described at serial no. 1 of Schedule 'Ka' appended to plaint was of the firm and not of the defendant. Learned Senior Counsel as regards to property described at Serial No. 2 of Schedule 'Ka' appended to plaint argued that the trial court equally erred in holding that this property belongs to the firm M/s. Bhajan Lal Bala Bux. The trial court has relied on Exhibits 14, 17 and 18, alleged pattas of aforesaid property, which were not admissible in evidence, as they were copies of the original documents and could not have been accepted. Identity of the properties described at Serial No. 2 of Schedule 'Ka' appended to plaint, i.e. two shops and one godown, was not established by any of these documents. In this regard, the trial court has wrongly read written statement of Bhajan Lal and erred in saying that defendant was not clear about the target he is driving at regarding properties described at Serial No. 2 of Schedule 'Ka' appended to plaint. It is argued that property described at Serial No. 3 of Schedule 'Ka' appended to plaint was also wrongly held to be belonging to the firm. Sale deed of the aforesaid property (Exhibit 8) dated 02.09.1937 stands in the name of Bhajan Lal alone and he was in possession of the same throughout. Additions/alterations in the aforesaid property were made by Bhajan Lal. Even then, the trial court has wrongly held that this property did not belong to him. For this property also, trial court has wrongly presumed that account books of the firm M/s. Bhajan Lal Bala Bux were with Bhajan Lal and yet it held that he was not sole owner of the said property and held that he cannot be taken as sole owner of the property because he failed to produce the account books of the firm. Documentary evidence produced by the plaintiff was not at all satisfactory. Reliance on Exhibit-1 and Exhibit-2 of the arbitration proceedings were wrongly placed by the trial court. Learned Senior Counsel further argued that the trial court erred in holding that property described at Serial No. 4 of Schedule 'Ka' of plaint fell to the share of plaintiff by award dated 29.05.1938(Exhibit-4/1). Reliance on Exhibit-1 and Exhibit-2 of the arbitration proceedings were wrongly placed by the trial court. Learned Senior Counsel further argued that the trial court erred in holding that property described at Serial No. 4 of Schedule 'Ka' of plaint fell to the share of plaintiff by award dated 29.05.1938(Exhibit-4/1). The trial court has not properly examined Exhibits 9/1, 10/1, 6, 7/1, 8/1, 11, 15, 16, 18 and A/14 regarding property described at Serial No. 4 of Schedule 'Ka' appended to plaint. The defendant was in possession of the said property for 35 years. In fact, he has let out that property to tenants, which is clear from Exhibit A/11 and Exhibit A/13. The trial court erred in holding that plaintiff was entitled to exclusion of period from 25.07.1942 to 26.05.1955 under Section 14 of the Limitation Act. The trial court has not properly interpreted Section 14 of the Limitation Act specially the words, “other cause of like nature”. I have given my anxious consideration to rival submissions, perused the material on record and respectfully studied the cited precedents. Before proceeding to examine the arguments of learned Senior Counsel appearing on behalf of plaintiff-appellant on Issue No. 5 and 8 with regard to holding the suit barred by principle of res judicata/constructive res judicata and Order 2 Rule 2 CPC, objection raised on behalf of the respondent-defendant as to the extension of benefit of Section 14 of the Limitation Act, 1963 to plaintiff-appellant under Issue No. 7 by the trial court needs to be considered first. Trial court under that issue had held that for entitlement to the benefit of Section 14 of the Limitation Act, the plaintiff has to satisfy three things; firstly, plaintiff-appellant had been prosecuting earlier civil suit with due care and attention; secondly, proceedings were not lacking in good faith; thirdly proceedings proved infructuous on the ground of jurisdiction or some other cause of like nature. The Supreme Court in a recently delivered judgment in M.P. Steel Corporation(supra) recapitulated the entire previous law on the scope of Section 14 of the Limitation Act and revisited its earlier judgment in the case of Consolidated Engg. Enterprises Vs. Irrigation Deptt., (2008) 7 SCC 169 , wherein their Lordships have reproduced five conditions which should be met with before extending the benefit of Section 14 of the Limitation Act to a party. Enterprises Vs. Irrigation Deptt., (2008) 7 SCC 169 , wherein their Lordships have reproduced five conditions which should be met with before extending the benefit of Section 14 of the Limitation Act to a party. Para 21 of the case of Consolidated Engg. Enterprises(supra), for the facility, is reproduced hereunder: “21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service: (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue; and (5) Both the proceedings are in a court.” Upon making a careful analysis of the aforesaid conditions on the facts of the present case, it would be evident that all the aforesaid conditions are fully met with in the present case because both prior and subsequent proceedings are civil proceedings prosecuted by and between the same parties. The prior proceeding had been prosecuted with due diligence and in good faith. The Supreme Court in M.P. Steel Corporation(supra) held that these phrases only mean that the party, who invokes Section 14 of the Limitation Act, should not be guilty of negligence, lapse or inaction and further, there should be no pretended mistake intentionally made with a view to delaying the proceedings or harassing the opposite party. In the present case, it cannot be said that the appellant-plaintiff did not prosecute earlier proceedings with due diligence and in good faith and he cannot be held guilty of negligence, lapse or inaction. Third and most important factor enumerated in Consolidated Engg. Enterprises(supra) was that the failure of the prior proceeding was due to defect of jurisdiction or the other cause of like nature. Third and most important factor enumerated in Consolidated Engg. Enterprises(supra) was that the failure of the prior proceeding was due to defect of jurisdiction or the other cause of like nature. Here, although it cannot be said that the court, which dismissed the earlier suit, was lacking in jurisdiction, but the phraseology, “other cause of like nature” would cover the situation of the present case as well because earlier suit was dismissed for the reason of award not being registered under the Registration Act, which also affected the jurisdiction of the court in granting the effective relief prayed for and therefore, this reason would obviously fall within the phraseology “other cause of like nature”. Fourth condition that earlier proceeding and latter proceeding must relate to the same matter in issue and fifth condition that both the proceedings are in a court are also satisfied in the present case because although earlier suit was founded on the award and relief prayed for was its enforcement, but those proceedings related to the same matter, i.e. properties of the firm, which plaintiff-appellant was claiming on the basis of award of the arbitrators and since the award was not registered, now subsequent suit has also been filed for partition of the properties of the firm. Therefore, both the proceedings are one and same. The Supreme Court in Deena (Dead) Through LRs.(supra), analyzing provisions of Section 14 of the Limitation Act, in para 14 and 15 held as under: “14. The main factor which would influence the court in extending the benefit of Section 14 to a litigant is whether the prior proceeding had been prosecuted with due diligence and good faith. The party prosecuting the suit in good faith in the court having no jurisdiction is entitled to exclusion of that period. The expression 'good faith' as used in Section 14 means "exercise of due care and attention”. In the context of Section 14 expression “good faith” qualifies prosecuting the proceeding in the court which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact. This Court in the case of Vijay Kumar Rampal v. Diwan Devi AIR 1985 SC 1669 observed: "The expression good faith qualifies prosecuting the proceeding in the court which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact. This Court in the case of Vijay Kumar Rampal v. Diwan Devi AIR 1985 SC 1669 observed: "The expression good faith qualifies prosecuting the proceeding in the court which ultimately is found to have no jurisdiction. Failure to pay the requisite court fee found deficient on a contention being raised or the error of judgment in valuing a suit filed before a court which was ultimately found to have no jurisdiction has absolutely nothing to do with the question of good faith in prosecuting the suit as provided in Section 14 of the Limitation Act." 15. The other expressions relevant to be construed in this regard are “defect of jurisdiction” and "or other cause of a like nature”. The expression "defect of jurisdiction” on a plain reading means the court must lack jurisdiction to entertain the suit or proceeding. The circumstances in which or the grounds on which, lack of jurisdiction of the court may be found are not enumerated in the section. It is to be kept in mind that there is a distinction between granting permission to the plaintiff to withdraw the suit with leave to file a fresh suit for the same relief under Order 23 Rule 1 and exclusion of the period of pendency of that suit for the purpose of computation of limitation in the subsequent suit under Section 14 of the Limitation Act. The words "or other cause of a like nature" are to be construed ejusdem generis with the words “defect of jurisdiction”, that is to say, the defect must be of such a character as to make it impossible for the court to entertain the suit or application and to decide it on merits. Obviously Section 14 will have no application in a case where the suit is dismissed after adjudication on its merits and not because the Court was unable to entertain it.” This Court in Shyamsunder(supra) dealt with a case where an earlier suit for partition ended in a decree, but, for some reason or the other, there had been no partition by metes and bounds and it was not possible to give effect to that decree and parties continued in joint possession even thereafter, a second suit for partition of the same properties was held maintainable. The principle was laid down that so long as a property is jointly held, until that time a right to partition continues intact or in other words, a right to partition is continuous and a recurring right and cannot be lost by mere non-exercise of it. But this principle must be read as subject to an important qualification and that is that any questions of right or title, which might have been finally decided in earlier suit, cannot be allowed to be reopened in second suit except perhaps where a case of fraud or the like, may be alleged and proved. Earlier decree would operate as res judicata only to the extent pointed out above. In Asha Sharma & Others(supra), Himachal Pradesh High Court, while dealing with a question whether second suit for partition is precluded under Order 9 Rule 9 of the Code of Civil Procedure where an earlier suit for partition was dismissed in default under Order 9 Rule 8 of the Code of Civil Procedure, held that subsequent suit for enforcing partition, in the face of the first suit for the same relief having been dismissed in default under Order 9 Rule 8 of the Code of Civil Procedure, is not precluded by the provisions of Order 9 Rule 9 of the Code, as the partition is a recurring cause of action and the right to enforce partition is a legal incident of a joint tenancy, and so long such tenancy subsists, a party has a continuous right for partition. Cause of action is continuous in partition cases which subsists so long the property is held jointly. Patna High Court in Santan Narain Tewari(supra) also similarly held that a co-sharer has got a right to seek fresh partition if for some reason, previous decree for partition becomes unenforceable so that there has not been actually breaking up of the title and possession of the co-sharer by actual delivery to each of them of the specific portion of the joint property allotted to him by that decree. Where the parties treated the previous decree to be infructuous and continued to remain in possession as co-sharers of the properties as before, a fresh suit for partition is not barred. Where the parties treated the previous decree to be infructuous and continued to remain in possession as co-sharers of the properties as before, a fresh suit for partition is not barred. This Court in Smt. Dev Kanwar & Others(supra) also held that there is no limitation for filing a suit for partition because in a suit for partition, cause of action is always treated to be a continuing cause of action till property in dispute is partitioned. In such a situation where the cause of action is continuing and no limitation is prescribed, fresh suit is not barred within the meaning of Order 9 Rule 4 CPC. It was further held that a suit for partition is never barred under Order 22 Rule 9 CPC even though on an earlier occasion a previous suit for partition has either abated automatically or dismissed by court under the said order. The expression ‘same cause of action’ used under Order 22 Rule 9 CPC does not include within its ambit a continuing cause of action. Adverting again to the present case, learned trial court, while deciding Issue No. 6 relating to limitation, acknowledged the fact that plaintiff-appellant and defendant-respondent were co-owners of properties and possession of one co-owner over the property is considered to be possession of other co-owner until such time when possession of the former becomes adverse to the latter. The trial court held that during the course of arbitration proceedings, it could not be said that the possession of the defendant was adverse to plaintiff. Second arbitral award was passed on 12.05.1941, on which date the properties in dispute were specifically allotted to plaintiff. But when defendant refused to carry out the award, plaintiff was driven to initiate action against defendant by filing suit on 25.07.1942(Exhibit-A.1). Written statement of defendant(Exhibit A.2) was dated 01.11.1942. It was for the first time that claim of plaintiff to properties was denied by defendant in written statement and therefore, according to trial court, possession of defendant became adverse to plaintiff on 01.11.1942. Trial court, while excluding the period from 02.11.1942 to 26.05.1955, when the earlier suit was decided held that the present suit having been filed on 31.05.1996 is within a period of 12 years from the date on which cause of action arose to plaintiff-appellant and suit must be held to have been filed within limitation. Trial court, while excluding the period from 02.11.1942 to 26.05.1955, when the earlier suit was decided held that the present suit having been filed on 31.05.1996 is within a period of 12 years from the date on which cause of action arose to plaintiff-appellant and suit must be held to have been filed within limitation. In order to test correctness of this finding of the trial court, this Court has to find out whether pleadings of defendant in written statement in the light of what was pleaded by plaintiff in plaint can be said to be plea of adverse possession, particularly when plaintiff and defendants were co-owners in the suit properties, a fact acknowledged by the trial court itself and both were throughout in litigation with each other. As would be seen from averments made in para 2 and 3 of plaint, suit proceeds on the footing that the parties had voluntarily by registered agreement dated 01.06.1939 decided to dissolve the firm Bhajan Lal Bala Bux and appointed three persons, namely-Shri Hira Lal, Shri Bhola Nath and Shri Johari Lal, as arbitrators to render their award. Arbitrators on 31.07.1939 rendered their first award requiring defendant to pay to plaintiff a sum of Rs. 20,201/-in cash and one iron safe, keys of which were with plaintiff. Thereafter, second award was rendered by arbitrators on 12.05.1941 according to which immovable properties of the firm were partitioned. Defendant, in the written statement, admitted the plea that prior to dissolution of the firm in 1939, the parties were owners of the shop where business was being run in the name and style of M/s. Bhajan Lal Bala Bux, but defendant thereafter, became absolute owner of the shop and plaintiff had nothing to do therewith. Defendant had pleaded that by award dated 31.07.1939, arbitrators in lieu of payment of Rs. 20,201/-to plaintiff, made defendant sole owner of the estate of the firm and plaintiff had nothing to do with properties of the firm. Defendant paid to the plaintiff a sum of Rs. 15,000/-vide receipt dated 02.09.1939 and 04.12.1959 and was prepared to pay the remaining amount, but plaintiff neither served any notice, nor requisitioned the remaining amount. Arbitrators had no jurisdiction by subsequent award to give any further immovable property to the share of the plaintiff. Defendant paid to the plaintiff a sum of Rs. 15,000/-vide receipt dated 02.09.1939 and 04.12.1959 and was prepared to pay the remaining amount, but plaintiff neither served any notice, nor requisitioned the remaining amount. Arbitrators had no jurisdiction by subsequent award to give any further immovable property to the share of the plaintiff. A cumulative reading of the plaint and the written statement aforesaid would clearly show that after dissolution of the firm, two awards were rendered by the arbitrators, first regarding business and movable properties of the firm, according to which a sum of Rs. 20,201/-was directed to be paid along with iron safe to the plaintiff, upon which defendant was to become sole owner of the firm M/s. Bhajan Lal Bala Bux and thereby change name of the firm to M/s. Bhajan Lal Magan Lal. It was thereafter that immovable properties of the firm as per the Schedule “Ka” appended to plaint were partitioned by subsequent award dated 12.05.1941. Properties mentioned at Serial No. 4 to 9 were partitioned on the basis of possession of the firm. Defendant claimed that properties mentioned at Serial No. 2 in Schedule “Ka” appended to plaint were his personal properties and were not that of the firm and plaintiff was not entitled to any share therein whereas District Judge, Alwar in the suit categorically held that award for a sum of Rs. 20,201/-was passed in favour of the plaintiff with regard to business and movable properties of the firm and that properties mentioned at Serial No. 2 of the Schedule “Ka” appended to the plaint were owned by the firm and not by defendant and that other legal heirs of Buddhilal had nothing to do with properties mentioned at Serial No. 4 to 9 in the Schedule “Ka” appended to plaint. Pleadings of plaint and written statement thus would clearly show that the status of the plaintiff vis-à-vis properties of the firm held by defendant was that of co-owners and possession of defendant over such properties cannot be taken as hostile or adverse to plaintiff, notwithstanding any kind of plea set up by him. And this is so also because plaintiff was throughout contesting defendant’s claim, initially in arbitral proceedings, then in the earlier suits and thereafter in second suit. And this is so also because plaintiff was throughout contesting defendant’s claim, initially in arbitral proceedings, then in the earlier suits and thereafter in second suit. Registered agreement for dissolution of the firm dated 01.06.1939; reference to the arbitrators for dissolution of the firm and resolution of the disputes; first award by the arbitrators with regard to movable properties of the firm and second award for immovable properties, if any, were partly acted upon with remaining part not being acted upon, but defendant thereby does not become absolute owner of such properties in his hand held in trust for all the co-owners. The Supreme Court in Karnataka Board of Wakf(supra) held that in the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. In the instant case, plaintiff and defendant had inherited the properties in question by their common ancestor, the alternative plea of adverse possession by the defendant was inconsequential. This is because ancestral property of Buddhi Lal, who died in 1937, were partitioned. Budhi Lal left surviving seven sons. Two of them namely Jagan Prasad, deceased, through his son Bala Bux (original plaintiff) and Bhajan Lal(original defendant) on partition remained joint and held the properties and business jointly in respect of their shares. All such properties inherited by both them remained joint in the hands of the two. In Indira(supra), the Supreme Court also held that when the suit for possession of immovable property is based on title and once such title is established on the basis of relevant documents and other evidence, unless defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. While, under Article 142 of the Limitation Act, 1908, the plaintiff had to prove not only title but also possession within 12 years of the date of the suit, this position has since changed under Article 65 of the Limitation Act, 1963. In Syed Shah Ghulam Ghouse Mohiuddin & Others (supra), the Supreme Court dealt with a case where all four sons and two daughters of the deceased entered into an agreement to partition the property by arbitration. The appellant, being a minor, was represented by one of his brothers in the said arbitration agreement, as guardian. On becoming major and knowing about the fraudulent conduct of the brothers in possession, appellant therein filed a suit for setting aside the arbitration award and the Court decree confirming such award. The trial court decreed the suit in favour of the appellant therein, but the High Court reversed the decree. On becoming major and knowing about the fraudulent conduct of the brothers in possession, appellant therein filed a suit for setting aside the arbitration award and the Court decree confirming such award. The trial court decreed the suit in favour of the appellant therein, but the High Court reversed the decree. When the matter reached the Supreme Court, apart from other questions, it was held that where the heirs continue to hold the estate as tenants in common without dividing it and one of them subsequently brings a suit for recovery of the shares, the period of limitation of the suit does not run against him from the date of the death of the deceased, but from the date of express ouster or denial of title and Article 144 of Schedule I of the Limitation Act would be the relevant article. The cause of action for partition of properties is said to be a perpetually recurring one. In Mohammadan law, the doctrine of partial partition is not applicable because the heirs are tenants-in-common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. The shares of heirs under Muslim law are definite and known before actual partition. Therefore, on partition of properties, there is division by metes and bounds in accordance with the specific share of each heir being already determined by the law. Possession of one co-owner is not by itself adverse to other co-owners. On the contrary, possession of one co-owner is supposed to be on behalf of other co-owner unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. In Md. Mohammad Ali (Dead) by LRs.(supra), it was held by the Supreme Court that by reason of the Limitation Act, 1963, the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the Limitation Act, 1963, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiff’s claim to establish his title by adverse possession. For the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi. However, in the event, the case of the defendant was that the predecessors-in-interest of the plaintiff ceased to be his co-sharers for any reason whatsoever, it was not necessary for them to raise a plea of ouster. In a proper case, the court may have to construe the entire pleadings so as to come to a conclusion as to whether the proper plea of adverse possession has been raised in the written statement or not which can also be gathered from the cumulative effect of the averments made therein. Long and continuous possession by itself would not constitute adverse possession. Even non-participation in the rent and profits of the land to a co-sharer does not amount to ouster so as to give title by prescription. A co-sharer becomes a constructive trustee of other co-sharer and the right of the appellant/and or his predecessors-in-interest would, thus, be deemed to be protected by the trustees. Possession of a property belonging to several co-sharers by one co-sharer, shall be deemed to be possession on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers. Mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that the title of the other co-sharers was denied and disputed. Coming now to the question whether subsequent suit was founded on the same cause of action on which the earlier suit was filed, which in fact was founded on the award of the arbitrators dated 12.05.1941 with regard to immovable properties of the firm, reference may be usefully made to a recently delivered judgment of the Supreme Court in Rathnavathi & Another(supra). It was a case where the plaintiff was put in possession vide contract for sale. It was a case where the plaintiff was put in possession vide contract for sale. Cause of action for filing first suit for permanent injunction restraining defendants from interfering with plaintiff’s possession over suit house was based on threat given by defendants to dispossess plaintiff from suit house by sale thereof by Defendant 2 owner to Defendant 1 subsequent purchaser and cause of action for filing subsequent suit for specific performance of agreement for sale of suit house was based on non-performance of agreement of sale by Defendant 2 in plaintiff’s favour despite legal notice to perform seller’s part. It was held that cause of action on which two suits were based as also ingredients for claiming two suits were different. The Supreme Court held that one of the basis requirements for successfully invoking the plea of Order 2 Rule 2 CPC is that the defendant of second suit must be able to show that second suit was also in respect of the same cause of action as that on which the previous suit was based. When the cause of action to claim the respective relief were different so also the ingredients for claiming the relief, the plea of Order 2 Rule 2 CPC cannot be allowed to be raised by the defendant. Since such plea, if upheld, results in depriving the plaintiff to file the second suit, it is necessary for the court to carefully examine the entire factual matrix of both the suits, the cause of action on which the suits are founded, the relief claimed in both the suits and lastly, the legal provisions applicable for grant of relief in both the suits. The ingredients to file a suit for temporary and permanent injunction are different than that of the suit for specific performance of the agreement. In case of former, the plaintiff is required to make out the existence of prima facie case, balance of convenience and irreparable loss likely to be suffered by the plaintiff on facts with reference to the suit property as provided in Section 38 of the Specific Relief Act, 1963 read with Order 39 Rules 1 and 2 CPC. In case of former, the plaintiff is required to make out the existence of prima facie case, balance of convenience and irreparable loss likely to be suffered by the plaintiff on facts with reference to the suit property as provided in Section 38 of the Specific Relief Act, 1963 read with Order 39 Rules 1 and 2 CPC. Whereas, in case of the latter, the plaintiff is required to plead and prove her continuous readiness and willingness to perform her part of the agreement and to further prove that the defendant failed to perform her part of the agreement as contained in Section 16 of the Act. In the present case also, the earlier suit was founded on the award and its consequential enforcement. Earlier suit having been dismissed for defect in the jurisdiction of the court, which, even though decided most of issues in favour of plaintif, was not able to enforce the same for the reason of its non-registration. Rights of plaintiff in the subsequent suit filed on the basis of title and share in ancestral and common properties of the firm did not get extinguished thereby and still survived. It is in order to vindicate those rights that plaintiff could legitimately file a suit for partition and recovery of possession of properties of his share which, as noted above, besides being a different cause of action, is recurring cause of action. The Supreme Court in Kunjan Nair Sivaraman Nair(supra) was dealing with a case where the appellant was Defendant No. 1 in the suit for recovery of possession and mesne profit on the strength of title, instituted by seven persons as plaintiff. Case of the plaintiffs-respondents in a nutshell was that the plaint schedule property originally belonged to their deceased father, NN and his mother on the basis of a partition. On the death of the mother, her right also devolved on NN, who died in August, 1975. The suit was filed on the ground that the plaintiff-respondents were the only legal heirs and hence they had title over the plaint schedule property. The appellant resisted the suit saying that she was a co-owner, as NN was his uncle. On the death of the mother, her right also devolved on NN, who died in August, 1975. The suit was filed on the ground that the plaintiff-respondents were the only legal heirs and hence they had title over the plaint schedule property. The appellant resisted the suit saying that she was a co-owner, as NN was his uncle. Both NN and his mother were looking after him and after the partition which took place when he was very young, NN gave the plaint schedule property to him and since then he was in possession and in enjoyment of the property. Though the application before the Land Tribunal for the purchase of the janmam right and the appeal were dismissed, the rights obtained from NN and his mother remained unaffected. Even if title of the plaintiff-respondents had been found, that was no longer in operation. In any event, it was pointed out that the suit was barred in terms of Order 2 Rule 2 CPC. It was further stated that his son was residing in the property by constructing a building and effecting improvements and, therefore, he was entitled to get the value of the building and the improvements. The courts below found that the first suit was one for mere title and injunction and the cause of action was not the same as that of the later suit, therefore, Order 2 Rule 2 CPC has no application. Similarly, it was held that the provisions of the Kerala Compensation for Tenants Improvements Act, 1958 had no application to the facts of the case as there was no material regarding any improvements. In any event, the applicant was not a tenant as defined under the Compensation Act. In those facts, it was held by the Supreme Court that for attracting provisions of Order 2 Rule 2 CPC, it must be shown that the second suit is based on the identical cause of action on which the earlier suit was based. One great criterion, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit, is whether the same evidence will maintain both actions. One great criterion, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit, is whether the same evidence will maintain both actions. It was clarified that the rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transaction. The Supreme Court in Para 8, 9, 10, 16 and 19 of the judgment(supra) observed as under: “8. A mere look at the provisions shows that once the plaintiff comes to a court of law for getting any redress basing his case on an existing cause of action, he must include in his suit the whole claim pertaining to that cause of action. But if he gives up a part of the claim based on the said cause of action or omits to sue in connection with the same, then he cannot subsequently resurrect the said claim based on the same cause of action. So far as sub-rule (3) is concerned, before the second suit of the plaintiff can be held to be barred by the same, it must be shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is the same in both the suits and if in the earlier suit plaintiff had not sued for any of the reliefs available to it on the basis of that cause of action, the reliefs which it had failed to press into service in that suit cannot be subsequently prayed for except with the leave of the court. It must, therefore, be shown by the defendants for supporting their plea of bar of Order 2, Rule 2, sub-rule (3) that the second suit of the plaintiff filed is based on the same cause of action on which its earlier suit was based and that because it had not prayed for any relief and it had not obtained leave of the court in that connection, it cannot sue for that relief in the present second suit. 9. The above position was again illuminatingly highlighted by this Court in Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co. (1997) (1) SCC 99. 10. 9. The above position was again illuminatingly highlighted by this Court in Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co. (1997) (1) SCC 99. 10. Order 2 Rule 2 sub-rule (3) requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based. Therefore, there must be identical cause of action in both the suits, to attract the bar of Order 2 sub-rule (3). The illustrations given under the rule clearly brings out this position. Above is the ambit and scope of the provision as highlighted in Gurbux Singh Vs. Bhooralal, AIR 1964 SC 1810 by the Constitution Bench and in Bengal Waterproof Ltd (supra). The salutary principle behind Order 2 Rule 2 is that a defendant or defendants should not be vexed time and again for the same cause by splitting the claim and the reliefs for being indicated in successive litigations. It is, therefore, provided that the plaintiff must not abandon any part of the claim without the leave of the Court and must claim the whole relief or entire bundle of reliefs available to him in respect of that very same cause of action. He will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the Court. 16. The expression "cause of action" has acquired a judicially-settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in "cause of action". 19. In Inacio Martins v. Narayan Hari Naik (1993) (3) SCC 123, an almost identical question arose. In that case, the plaintiff had prayed for protection of his possession by a prohibitory injunction. That prayer was refused. Subsequent suit was for recovery of possession. 19. In Inacio Martins v. Narayan Hari Naik (1993) (3) SCC 123, an almost identical question arose. In that case, the plaintiff had prayed for protection of his possession by a prohibitory injunction. That prayer was refused. Subsequent suit was for recovery of possession. This Court held that in the former suit the only relief that the Court could have granted was in regard to the declaration sought for which the Court could not have granted in view of the provisions of Specific Relief Act. The cause of action for the first suit was based on the apprehension about likely forcible dispossession. The cause of action of the suit was not on the premise that he had, in fact, been illegally and forcefully dispossessed and needed the Courts' assistance for restoration of possession. In that background this Court held that subsequent suit was based on a distinct cause of action not found in or formed the subject-matter of the former suit. The ratio of the decision has full application to the facts of the present case.” The Constitution Bench of the Supreme Court in Gurbux Singh Vs. Bhooralal, AIR 1964 SC 1810 in para 6 held as under: "In order that a plea of a bar Order 2, Rule 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2, Rule 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identify of the cause of action in the two suits. It is common ground that the pleadings in CS No. 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under Order 2, Rule 2, Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the stage of the appeal the learned District Judge noticed this lacuna in the appellant's case and pointed out, in our opinion, rightly that without the plaint in the previous suit being on the record, a plea of a bar under Order 2, Rule 2, Civil Procedure Code was not maintainable." The Supreme Court in Deva Ram Vs. Ishwar Chand, (1995) 6 SCC 733 held that where the previous suit was for recovery of loan, which was dismissed on the ground that the document on the basis of which the suit was filed was not a sale deed but agreement for sale, subsequent suit for recovery of possession on the basis of title was not hit by Order 2 Rule 2 CPC as the cause of action in two suits were not identical or one and the same. The Division Bench of this Court in Birdhi Chand Sumermal (supra) had the occasion to deal with a case which was somewhat identical to the present case. In that case too, an award was passed by the arbitrator on 26.04.1947 making the defendants therein liable to pay a sum of Rs. 26,199.60 as damages to the plaintiffs therein, but the defendants did not comply with the award. In that case too, an award was passed by the arbitrator on 26.04.1947 making the defendants therein liable to pay a sum of Rs. 26,199.60 as damages to the plaintiffs therein, but the defendants did not comply with the award. It was thereafter that the plaintiffs filed a suit for recovery giving reference to the commencement of agreement between the parties for sale and purchase of the goods in question and thus based the suit on the original demand. In para 15 of the plaint pertaining to the cause of action, the plaintiffs specifically stated that it arose between 12.03.1947 and 16.03.1947 when the defendants committed breach of contract and the goods were resold by the plaintiffs in the market. Objection was raised that the original cause of action stood extinguished by passing of the award with the result that neither the award can be enforced, nor the suit can be decreed on the basis of original cause of action. Further objection was that the suit was barred by Sections 32 and 33 of the Indian Arbitration Act, 1940. If it is considered as a suit based on the original cause of action, it is not maintainable, as a valid award operates to merge and extinguish all claims embraced in the submission. The Division Bench of this Court noted that none of the parties took any steps for making the alleged award a rule of the Court according to the provisions of the Arbitration Act, 1940. Of course, once an award has been made rule of the Court and judgment has been pronounced according to the award and a decree has followed, even no appeal shall lie from such a decree except on the ground that it is in excess of, or not otherwise in accordance with the award. The important question which was considered by the Division Bench of this Court was whether after coming into force of the Arbitration Act, 1940, the original cause of action is extinguished and gets merged into the award as soon as the award is given? It was held that if this is so, undoubtedly the plaintiffs will have to be non-suited. But, on the other hand, if the original cause of action remains alive and does not get merged in an un-filed award, the plaintiffs’ suit will be maintainable. It was held that if this is so, undoubtedly the plaintiffs will have to be non-suited. But, on the other hand, if the original cause of action remains alive and does not get merged in an un-filed award, the plaintiffs’ suit will be maintainable. Even though, findings recorded by the learned trial court on Issue No. 1, 2, 3, 4, 6, 7, 9, 10 and 11 in favour of the plaintiff-appellant have been assailed by the respondents-defendants, but this Court is not persuaded to upturn any of those findings, which are based on objective analysis of evidence. As regards discussion made on Issue No. 2, the trial court has rightly observed that property described at Serial No. 1 of Schedule 'Ka' appended to plaint known as 'katare wali dukan' was purchased by defendant Bhajan Lal on 05.06.1936 in a public auction at the time when the firm M/s. Bhajan Lal Bala Bux was in existence. The said property was purchased in execution proceedings initiated by the firm against one Chotelal. The sale price was adjusted against the decreetal amount, which was due to the firm. That is why this property became property of the firm. It was a matter of mere convenience that the property was purchased by defendant in his name because he was senior partner of the firm and was managing and looking after its affairs. Defendant specifically set up a plea that after purchase of the said property, he was debited with the purchase money of the property and the amount was entered on the debit side of his account in the account books of the firm. But, the trial court rightly observed that this plea does not bear a moment's scrutiny, the reason being that the best evidence which could consist of the account books of the firm has been with-held by defendant in this case. Evidence clearly proved that the account books of the firm remained with the defendant, which is clear from two facts. Firstly, as a result of the award dated 31.07.1939, which dealt with movable properties, defendant was to pay a sum of Rs. 20,201/-to plaintiff in return for the entire movable assets of the firm, which remained with him. It is, therefore, natural to conclude that account books of the firm remained with defendant. Firstly, as a result of the award dated 31.07.1939, which dealt with movable properties, defendant was to pay a sum of Rs. 20,201/-to plaintiff in return for the entire movable assets of the firm, which remained with him. It is, therefore, natural to conclude that account books of the firm remained with defendant. Secondly, Maganlal(D.W.9), who is son of the defendant, admitted in cross-examination that all the account books were with his father Bhajan Lal. As regards properties described at Serial No. 2 of Schedule 'Ka' appended to plaint consisting of two shops and one godown situated at Rani Ganj Nagar Gan Kherli, which were purchased by Bhajan Lal in the name of the firm, as per plaintiff's case, but defendant maintained that these properties were his own properties and the firm had nothing to do with it. Pattas of the aforesaid properties dated 19.02.1925 were marked as Exhibit 14 and 18, which are in the joint names of M/s. Bhajan Lal and Bala Bux. This demolishes contrary plea of defendant. Further plea that pattas did not belong to these properties was also rightly not accepted by the trial court because no such question was put to plaintiff(P.W.1) in his cross-examination. Pleadings of defendant with regard to these properties were also very vague. In para 5 of written statement, defendant alleged that he was sole owner of northern shop with half of the godown behind it and southern shop with the remaining half of the godown behind it was the property of Budhilal, which fell to his share and he was in possession thereof for the last 30 years. But another plea in that very para 5 of written statement set up by the defendant was that properties described at Serial No. 2 along with property No. 4 fell to his share during the life time of his father Budhilal, which implied that in the very beginning, he was not owner of northern shop with half of the godown at the back of it. In para 30 of the written statement, it was alleged that properties described at Serial No. 1, 2 and 3 of Schedule 'Ka' to plaint were all purchased in the name of the defendant, which completely annihilates the earlier plea set up by defendant in para 5 of written statement. In para 30 of the written statement, it was alleged that properties described at Serial No. 1, 2 and 3 of Schedule 'Ka' to plaint were all purchased in the name of the defendant, which completely annihilates the earlier plea set up by defendant in para 5 of written statement. Plaintiff Bala Bux appearing as P.W. 1 maintained that the properties described at Serial No. 2 of Schedule 'Ka' of plaint were of the firm and he testified to the genuineness of Exhibits 14 and 17. Defendant appearing as D.W.1 alleged that he purchased this property, which plea did not inspire any confidence. Similarly, statement of Baij Nath(D.W.2) was rightly discarded by the trial court. Madan Lal(D.W.3), Charanlal(D.W.4) and Motilal(D.W.5) only speak about possession of defendant and not otherwise. Properties described at Serial No. 2 of Schedule 'Ka' appended to plaint were, therefore, rightly held to be belonging to the firm. Property described at Serial No. 3 of Schedule ‘Ka’ appended to plaint known as ‘Liladhar Gopaldas Wali Dukan’ situated at Village Kherli consisted of two shops and one godown attached to them, which according to defendant was acquired by him personally and the firm had nothing to do with it. Contrarily, plaintiff maintained that this was property of the firm. Sale Deed dated 02.09.1937 indicated that this property was purchased by defendant Bhajan Lal in his name, but the circumstances surrounding the case point to the conclusion that this property was acquired by Bhajan Lal on behalf of the firm, which was still in existence as defendant was managing affairs of the firm and the very fact that the property was purchased in the name of Bhajan Lal alone does not make any difference. Account books of the firm, as already discussed above, were not produced and, therefore, adverse inference was rightly drawn against him. Defendant Bhajan Lal as D.W.1 stated that he purchased the property by himself, but Plaintiff Bala Bux as P.W.1, on the contrary, has deposed that this property was purchased by defendant on behalf of the firm. Defendant(D.W.1) had further spent Rs. 15,000/-on additions and alterations of this property. Statement of Baij Nath (D.W.2) in this regard was also not found to be worthy of reliance. Documentary evidence produced by the plaintiff in this behalf supported his case. Defendant(D.W.1) had further spent Rs. 15,000/-on additions and alterations of this property. Statement of Baij Nath (D.W.2) in this regard was also not found to be worthy of reliance. Documentary evidence produced by the plaintiff in this behalf supported his case. This property was subject matter of dispute in previous suit No. 4/1942 between the parties wherein it was described at Serial No. 4 in the schedule attached to the plaint and Issue No. 3 was framed in this regard therein. The said issue was decided in favour of the plaintiff. Finding of the District Judge, Alwar was affirmed by the High Court, but no relief could be granted to the plaintiff because the award was not found to be registered. Therefore, this property has rightly been held to be property of the firm by the trial court. As regards property described at Serial No. 4 of Schedule ‘Ka’ appended to plaint, this was known as ‘Gujarati Wali Dukan’, this property was originally belonging to deceased Budhi Lal and categorical case of the plaintiff throughout has been that this property at the time of initial of partition of properties of deceased Budhi Lal fell to his share as a result of award given at Bharatpur. Defendant, however, claimed that this property fell to his share. The trial court observed that Bharatpur Award dated 29.05.1938(Exhibit 4/1) showed that this property fell to the share of plaintiff. This award was given out of the Court during trial of a civil suit filed by Chimanlal against Kedarnath and others including defendant herein in the Court of District and Sessions Judge, Bharatpur. Copy of that plaint was marked as Exhibit 9/1. The agreement to refer the dispute to Arbitrator dated 28.05.1938 was Exhibit 10/1. Copy of the judgment dated 18.11.1940 passed by District Judge, Bharatpur was Exhibit-5. That suit was decreed in favour of Chimanlal. Another suit titled Sheonarain Girraj Prasad Vs. Bhajanlal Balabux was also filed on the basis of the award(Exhibit 4/1). That plaint dated 01.12.1950 was marked as Exhibit 7/1. Written statement dated 26.05.1951 put in by the defendant in that suit was marked as Exhibit-8/1 and order of the District Judge, Bharatpur passed on 11.05.1953 was marked as Exhibit-11, whereby award(Exhibit 4/1) was held to be admissible in evidence. Copy of judgment dated 27.05.1954 passed by the District Judge, Bharatpur was marked as Exhibit-6 by which the suit was decreed. Copy of judgment dated 27.05.1954 passed by the District Judge, Bharatpur was marked as Exhibit-6 by which the suit was decreed. Another suit on the basis of award(Exhibit 4/1) was filed by defendant on 11.12.1950 against Kashi Nath Mahesh Chandra in the court of Civil Judge, Bharatpur. Copy of that plaint was marked as Exhibit-15 and copy of written statement of Kashi Nath dated 19.10.1951 was marked as Exhibit-16. Copy of order dated 14.10.1957 passed by Civil Judge, Bharatpur staying proceedings was marked as Exhibit-18. Defendant filed this suit for the recovery of a property situated at Nadbai, which fell to his share in the award(Exhibit 4/1). Another suit on the basis of award(Exhibit 4/1) was filed by Chimanlal in the Court of Civil Judge, Alwar for possession of one shop situated within the jurisdiction of the Court at Alwar. Copy of order dated 13.05.1952 was marked as Exhibit A/14. The trial court, therefore, concluded and in the opinion of this Court rightly so, that as many as four suits had the basis of their claims on the award(Exhibit 4/1) and when defendant himself has filed suit in the Court of Civil Judge, Bharatpur in the year 1950 for recovery of the property situated at Nadbai, which fell to his share on the basis of aforesaid award(Exhibit 4/1), “the defendant cannot approbate and reprobate and blow hot and cold at one and the same time. Now, it is too late in the day for the defendant to say that this award cannot be acted upon and made the basis of the claim.” Claim of the defendant that he was in possession of this property for the last 35 years was also not held to be proved by the trial court in view of the rent note(Exhibit A/11) of Mangsir Sudi 5, 2015, which corresponds roughly to a period in the early 1960s. There is no other documentary evidence, not a single one, to prove that defendant was in possession of the property in dispute for last 35 years. And the rent note (Exhibit A/11) related to a period when litigation was going on between the parties to the suit. Plaintiff(P.W.1) has stated that this property fell to his share in the Bharatpur award. Defendant did not make any cross-examination on this aspect from the plaintiff, which detracts from the value, which is otherwise to be attached to his statement. Plaintiff(P.W.1) has stated that this property fell to his share in the Bharatpur award. Defendant did not make any cross-examination on this aspect from the plaintiff, which detracts from the value, which is otherwise to be attached to his statement. Nehnalal (P.W.3), who was one of the Arbitrators giving the award(Exhibit4/1), who stated that the award was given by them. Statement of this witness has rightly been relied by the trial court because he was not only one of the Arbitrators, but also brother-in-law of defendant himself. Nemi Chand (P.W.4) had identified signatures of his father on the arbitration agreement (Exhibit 10). Girraj Prasad(P.W.5) also identified signatures of his father on Exhibit 10. He also stated that the property in dispute fell to the share of the plaintiff. Kashi Nath(P.W.6) also testified to genuineness of agreement(Exhibit 10) and award(Exhibit 4/1). These witnesses, Nemi Chand(P.W.4), Girraj Prasad(P.W.5) and Kashi Nath(P.W.6) are the nephews of the defendant, whose evidence was worthy of reliance. As against this, the evidence adduced by the defendant was shaky and shifty. Defenfant Bhajan Lal(D.W.1) stated that property in dispute was given to him by his father and at the time of partition it fell to his share, but he could not stand scrutiny of cross-examination wherein he scuttled from one point to another. He admitted his signatures on the arbitration agreement(Exhibit-10) and pleaded ignorance as to what happened to the suit from which the award(Exhibit 4/1) arose. He also avoided to answer various questions put to him, but admitted his signatures on the written statement(Exhibit-8). He also admitted plaint(Exhibit-15), which he filed on the basis of the said award(Exhibit 4/1). He also refused to give answer to the question whether the award(Exhibit 4/1) was the same on which the suit was based. At another place, he stated that he did not remember what properties were left by deceased Budhi Lal at the time of his death. Statement of Baij Nath(D.W.2) was rightly not relied by the trial court. Charan Lal(D.W.4) pleaded ignorance about ownership of the property in dispute. Kapur Chand(D.W.6) and Ram Swaroop(D.W.7) were the tenants in the property in dispute, who also were unable to give any answer to the questions regarding ownership of the property in dispute. Statement of Baij Nath(D.W.2) was rightly not relied by the trial court. Charan Lal(D.W.4) pleaded ignorance about ownership of the property in dispute. Kapur Chand(D.W.6) and Ram Swaroop(D.W.7) were the tenants in the property in dispute, who also were unable to give any answer to the questions regarding ownership of the property in dispute. Therefore, property described at Serial No. 4 of Schedule ‘Ka’ appended to plaint was rightly held to have fallen to the share of plaintiff in the Bharatpur award by the learned trial court. In view of above discussion, while the cross objection filed by the respondents is rejected, the appeal deserves to succeed and is accordingly allowed in the following terms: (1) Findings recorded by the learned trial court on Issue No. 5 and 8 are reversed. Consequently, suit filed by the plaintiff-appellant for partition and recovery of possession of the properties of the firm is decreed. (2) Plaintiff is held entitled to 1/2 share of properties mentioned at Serial No. 1, 2 and 3 in Schedule 'Ka' appended to plaint. He is therefore held entitled to possession of 1/2 of his share of the aforesaid properties. (3) Plaintiff is also held entitled to mesne profit amounting to Rs. 1,500/-for properties mentioned at Serial No. 1, 2 and 3 of the Schedule 'Ka' appended to plaint for the period of three years preceding the date of filing the suit and also Rs. 500/-per year as future mesne profit for the aforesaid properties from the date of filing the suit till partition of said properties by metes and bounds and restoration of possession of share of the plaintiff. (4) Plaintiff is held entitled to possession of the property mentioned at Serial No. 4 of Schedule 'Ka' appended to plaint. (5) Plaintiff is held entitled to mesne profit amounting to Rs. 900/-for the property mentioned at Serial No. 4 of Schedule 'Ka' appended to plaint for period of three years preceding the date of filing the suit and also Rs. 300/-per year as future mesne profits for the aforesaid property from the date of filing the suit till restoration of possession of the said property to the plaintiff. Office is directed to accordingly draw the preliminary decree. Consequently, trial court is directed to proceed to frame final decree for partition and possession of the properties between the parties by metes and bounds. Office is directed to accordingly draw the preliminary decree. Consequently, trial court is directed to proceed to frame final decree for partition and possession of the properties between the parties by metes and bounds. Parties are left to bear their own costs.