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Ganesh Dutt v. Smt.Kiran Devi & Others - SECOND APPEAL No. 2649 of 1969  RD-AH 3071 (10 February 2006)
Second Appeal No.2649 of 1969
Srimati Kiran Devi & others
Hon. Sunil Ambwani, J.
Heard Shri Prakash Gupta, learned counsel for the appellant.
The order sheet of this appeal pending for thirty seven years shows that it took nine years for the respondents to be served. It was dismissed for want of prosecution on 8.4.2003 and restored on 10.3.2005.
In a suit for partition an objection was taken by the defendant that the earlier O.S. No.273 of 1938 was decreed on 22.2.39, for joint possession against which the civil appeal arising therein was dismissed. The plaintiff, thereafter, filed original suit No.93/1953, which was decreed on 3.11.1956, for partition of properties showing plaint map. The temple property adjoined the plaint propertries towards south and were omitted by mistake. An application for amendment of the plaint to include temple property was dismissed by Trial Court. The appeal was also dismissed, leaving the plaintiff with no other remedy but to file a fresh suit. The temple property subject matter of the suit was not included in the earlier suit, and thus it was pleaded by the defendant that the suit is barred by Order 2 Rule 2 CPC. The trial Court by its judgment and decree dated 18.9.67 dismissed the O.S. No.566 of 1963 for partition as barred by limitation
The Appeal No.369 of 1967 was however, allowed by the First Addl. Civil Judge, Agra, and the suit was decreed on 8.11.69, on the ground that temple properties were omitted by bonafide mistake, and that since the temple property marked by yellow colour was admittedly taken by the parties as tenant-in- common, the plaintiff had a separate cause of action for partition.
The appellate Court distinguished the judgment AIR 1953 Allahabad 541, Nageshar Tewari Vs. Dwarka Prasad & others, by relying upon AIR 1954 Raj.269, it was held that the general rule of Hindu Law is that where a suit for partition is brought by a coparcener against the other coparceners it should include the whole of family properties, is not applicable with full force to the case of partition between co-tenants.
It is not denied that the parties were tenants-in-common, and that the defendant had not pointed out in the earlier suit that the temple property, the offering of which were to be divided equally, were not partitioned.
Order 2 Rule 2 CPC mandates that the suit must include the whole claim in respect of the same cause of action. The plaintiff cannot split up the claim to omit one part of the claim. Order 2 Rule 2 CPC is based on the cardinal principle that the defendant should not be vexed twice for same cause of action and requires unity of all claims based on same cause of action in one suit. It must, however, be a case of deliberate and willful omission and not a bonafide mistake which was sought to be corrected in the previous suit by making an amendment application, which was rejected. In case of partition the whole claim means all the properties for which parties acquired the cause of action. The other principle is partial partition between co-sharers. The present case is not of partial partition, nor it was so pointed out by the defendant in earlier suit. A temple property, which is a tenancy-in-common was sought to be included in the previous suit, failing which it came up for partition in the present suit. The Appellate Court as such did not commit any illegality in decreeing the suit.
Shri Prakash Gupta raised an objection to the arrangement in the decree, where the parties are made entitled to offering for fifteen days each in a month. He submits that the Court should have allowed half of the offerings each day after accounting. Where a decree is for partition of the offerings, the discretion of the Court depends upon many factors including the past practice, custom, usage and the conduct of the parties. Once the parties seek partition, it was more appropriate to divide it on the basis of days, to allow parties to have exclusive possession and to avoid any possibility of litigation.
The second appeal does not offer any question of law to be answered, and is accordingly dismissed, with costs. The interim order dated 04.12.1969 is discharged.
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