GOVINDDAS RAJARAMDAS GUJAR Vs. GANPATDAS NAROTTAMDAS GUJAR

JUDGEMENT

(1.) [His Lordship, after stating the facts, proceeded:] The first question which arises in this case is whether the present suit is barred by res judicata or by Section 47 of the Civil Procedure Code. The house was not included in the plaint in the previous suit. It was a subsequent acquisition by defendant No. 1 on behalf of the family, and in the decree passed by the Subordinate Judge partition could not have been and was not in fact ordered with regard to the plaint house. It is clear, therefore), that the suit is not barred by res judicata.

(2.) The next question is whether it is barred under Section 47 of the Civil Procedure Code. Reliance is placed on behalf of the defendants on the order of the commissioner approved by the First Class Subordinate Judge on August 11, 1910. If the order of the First Class Subordinate Judge, dated August 11, 1910, be construed as a decree for partition of the house, the present suit would be barred under Section 47 of the Civil Procedure Code. If, on the other hand, the decree be considered as merely a declaratory decree declaring the rights of the parties in the house and out-standings and the rent, the present suit would not be so barred. The order says that "the parties had agreed to divide the house of the aforementioned Sonar half and half and the plaintiffs agreed to pay to the defendant half the expenses of the execution." The house did not come into the possession of the family till 1912, that is, two years after the date of the order, and it cannot be supposed that the Court intended to direct partition of a house which did not then come into the possession of the parties and with regard to which the parties only agreed to make a division between themselves. It was held in First Appeal No. 282 of 1921, in execution proceedings of the previous decree that "the plaintiff can either come to an arrangement with the defendant for partition of the house or he can file another suit.

(3.) In Lade V/s. Sadashiva (1903) 6 Bom. L.R. 35 it was held, following Chidambaram Chettiar V/s. Gouri Nachiar (1879) L.R. 6 I.A. 177, that a decree directing a partition, or the equivalent of a decree substantially undistinguishable from the decree under consideration is a declaratory decree converting the parties into tenants-in-common; that a tenant-in-common is entitled as of right to have a partition made of the property which ha holds in common with others, whatever the means whereby he acquired that character; and, that where a partition in interest is once effected by a decree between the coparcener, a suit, and not an application under Section 244 of the Civil Procedure Code (corresponding to Section 47 of the present Code), is the proper procedure whereby to obtain a partition by metes and bounds. To the same effect is the decision in Jagu Babaji V/s. Balu Laxman (1912) I.L.R. 37 Bom. 307 s.c. 14 Bom. L.R. 1198 where the case of Soni V/s. Munshi (1900) 3 Bom. L.R. 94 was distinguished on the ground that the partition decree directed allotment of the southern half to one party and the northern half to another, and the ruling in Nasrat-ullah V/s. Mujib-ullah (1801) I.L.R. 13 All. 309 was apparently approved in so far as it held that the decree declaring a, right to partition not having been given effect to by the parties proceeding to partition in accordance with it, it is competent for the parties or any of them, if they still continue to be interested in the joint property, to bring another suit for enforcing their right by partition by metes and bounds in case their right is called in question at a time when, by reason of limitation or otherwise, they cannot put into effect the decree first obtained.