DILO RANA Vs. MUNSHI KUNJ BEHARI PRASAD

JUDGEMENT

(1.) This is a defendants second appeal against a decision of the learned Subordinate Judge of Hazaribagh reversing that of the Munsif of Giridih in a suit foe partition.

(2.) In so far it is necessary to determine this appeal the facts may shortly be stated as follows. There were two brothers, Sibban and Horil. who owned and possessed a moiety share in a certain holding bearing Khata No. 13 The plaintiffs respondents purchased the interest of Horil's branch in that Khata, from his son named Tojo, The plaintiffs had instituted a previous suit for partition, but as the heirs of one of the several defendants named Daso Rana had not been substituted in place of the deceased defendant the suit had naturally abated, but the plaintiffs took the precaution of obtaining leave from the court to institute a fresh suit after withdrawing that suit on the ground that it had become defective on account of defect of parties. That leave was granted, and the suit out of which this appear arises was instituted for the same relief, namely partition. The defendants- appellants contested the suit on several grounds which, it is no more necessary to recount except the ground of maintainability. Their contention on the question of law was that the second suit was not maintainable in view of the fact that the previous suit really had abated and that the plaintiffs obtaining permission from the Court to withdraw from the suit with liberty to bring a freak one did not make any change in the legal position.

(3.) The court of first instance gave way to this contention and dismissed the suit, but the lower appellate court reversed the decision on the ground substantially that a suit for partition instituted subsequently to the withdrawal of the former suit was based on a different cause of action from that alleged in the previous suit for partition, and that, therefore, the present suit was not, as alleged by the defendants, had on the ground that the previous suit had abated for non- substitution. Hence this second appeal.