JUDGMENT
E. Padmanabhan, J.
1. The defendant on the file of the District Munsif Court, Palani who had succeeded before the trial court and lost before the first appellate court is the appellant in this second appeal. This second appeal is directed against the judgment and decree of the Sub Court, Dindigul made in A.S. No. 9 of 1986, dated 23.1.1987 in modifying the decree of the trial court and allowing the first appeal in part.
2. At the time of admission the following substantial questions of law were framed by this Court:
(i) Whether the learned Subordinate Judge is right in holding that the attestation by the defendant in Ex.A-2 would amount to admission of plaintiff’s title?
(ii) Whether the learned Subordinate Judge is right in referring the decision of the trial court by placing reliance on Ex.A-5, commissioner’s report and plan filed in the earlier suit?
(iii) Whether the learned Subordinate Judge is right in granting a decree for the alleged suit cart track, when the plaintiff has other cart to his properties and when the existence and user of the alleged suit cart track was never proved by the plaintiff?
(iv) Has not the learned Judge committed an error in not framing the issue and not considering the principle of res judicata?
3. In additions to the above Miss. Meera, the learned Counsel for the appellant with the leave of the court raised an additional question of law, namely, bar of the suit under Order 9, Rule 9 of the Code of Civil Procedure as the earlier suit instituted by the plaintiff stands dismissed under Order 9, Rule 8, C.P.C. The learned Counsel for the respondent was given an opportunity to meet the additional contention.
4. For convenience, the parties will be referred as arrayed before the trial court.
5. The plaintiff instituted the suit for partition separate possession of his 1/3rd share in Survey No. 591/1: for declaration that the plaintiff is entitled to red marked cart track set out in Survey No. 591/2 as an easement of necessity; for declaration that the plaintiff is entitled to the extents in S.Nos.582 and 592 and for consequential permanent injunction.
6. The suit was resisted by the defendants on merits and also on the ground that earlier suit filed in O.S. No. 538 of 1973 having been dismissed will constitute a bar in respect of the present suit under Order 9, Rule 9, C.P.C.
7. After contest the trial court held that the dismissal of earlier suit O.S. No. 538 of 1973 will not constitute res judicata as it is not a disposal on merits and granted a declaration in respect of the land comprised in Survey No. 582 as well as for permanent injunction while rejecting the other reliefs prayed for in the suit.
8. On appeal, the lower appellate court allowed the appeal and modified the judgment and decree of the trial court holding that the plaintiff is entitled to partition and separate possession of 1/3rd share in Survey No. 591/1, declaration and permanent injunction in respect of 2.08 acres in Survey No. 592/1 and the red marked cart track in Survey No. 592/1 as an easement of necessity besides confirming the findings of the trial court in respect of the Survey No. 582 Being aggrieved the defendant preferred this second appeal. The plaintiff had not preferred any cross objections.
9. Before taking up the substantial question of law raised by the appellant and main contentions which are required to be decided, it is essential to set out the reliefs prayed for by the plaintiff in the earlier suit as well as in the present suit. For convenience, the reliefs prayed for are set out side by side.
O.S. No. 1128 of 1981 O.S. No. 538 of 1973 (a) For a partition and separate possession The relief of partition not prayed for. of the plaintiff's 1/3rd share in S. No. 591/1 marked Blue in the sketch and directing the defendant to delivery possession of the same to the plaintiff after allotment of the share in the final decree. (b) For a declaration that the plaintiff is (b) Declaring that the plaintiff is entitled to the Red entitled to the Red marked cart track situate marked cart track in S. No. 591/2 as an easement of to the south of S. No. 591/2 as an easement necessity to enjoy S. No. 592/1 and in consequence thereof of necessity to enjoy the plaintiffs property restrain the defendant from in any way interfering with in S. No. 592/1 and as consequential relief the plaintiffs using the said cart track. 1 thereof. (c) For a permanent injunction restraining the defendant, his men and agents from in any way interfering with the plaintiff's user of the said cart track. (d) For a declaration that the plaintiff is (b) Declaring the plaintiff is abosolutely entitled to S. entitled to the extents in S. No. 582 and S. No. 582 and 592/1 and as a consequence thereof restrain No. 592/1 and as a consequential relief the defendants from interferring with the plaintiffs thereof. enjoyment of S.Nos.582 and 592/1. (e) For a permanent injunction restraining the defendants, his men and agents from in any way interfering with the plaintiff's peaceful possession of the said S.Nos.582 and 592/1. 10. A perusal of the reliefs prayed for as well as the description of properties in both the suits would disclose the following difference. (i) In the earlier suit relief of partition and separate possession of the plaintiff's 1/3rd share in Survey No. 591/1 marked blue in the plaint Sketch had not been prayed for. (ii) In the earlier suit, suit first item in the present suit namely Survey No. 591/1 measuring 38 cents with a salai had not been included.
11. Excepting these two difference there is no other difference in the reliefs prayed for the suits. All the other reliefs and the remaining two items of the properties in the present suit were the subject matter of claims in the earlier suit O.S. No. 538 of 1973.
12. Miss. Meera the learned Counsel appearing for the appellant while pointing out the above factual aspects contented that the suit claim in respect of the items 2 and 3 in the present is barred and the plaintiff is precluded from bringing the suit in respect of the same cause of action in terms of Order 9, Rule 9 of the Code of Civil Procedure as admittedly the earlier suit O.S. No. 538 of 1973 stands dismissed under Order 9, Rule 8 of the Code of Civil Procedure.
13. The learned Counsel for the appellant submitted that the plea is not one of res judicata, but one of preclusion by Order 9, Rule 9 of the Code of Civil Procedure.
14. It is fairly admitted by counsel for the respondent that the earlier suit O.S. No. 538 of 1973 by the same plaintiff had been dismissed and Order 9, Rule 8 of the Code and the plaintiffs attempt to restore the suit under Order 9, Rule 8 had been rejected by the trial court and confirmed in revision as well. However, the learned Counsel for the respondent in this appeal contended that in respect of one of the reliefs which was not sought for in the earlier suit is not statutorily precluded by the application of Order 9, Rule 9, Civil Procedure Code.
15. It was further contended by Mr. Gopalarathan, the learned Counsel for the respondent in this appeal that the provisions of Order 9, Rule 9 will not preclude the plaintiff from bringing a suit for partition.
16. In this respect the learned Counsel for the appellant placed reliance a decision of This Court in Kannikandath Kizha Purakkal Vella’s Son Thayyan v. Kannikandath Kizha Purakkal A.I.R. 1935 Mad. 458 (D.B.), SubbaRao v. Raju A.I.R. 1950 P.C. 1 and Madura Gramani v. Thummala Sesha Reddy A I.R. 1926 Mad. 1018 (D.B.).
17. The learned Counsel for the respondent/plaintiff also contended that unless the appellant/defendant had raised a plea with respect to Order 9, Rule 9, this Court shall not allow the appellant/defendant to raise the same as it would amount to waiver. In this respect, the learned Counsel relied upon the decision of this Court in Commissioner, H.R. & C.E. v. Krishnaswamy . As such a plea could always be waived by the party concerned. As a matter of fact in the present suit a plea has been raised by the defendant in the suit and it cannot be said that the defendant had not raised the plea, nor it could be stated that the defendant had waived the same. It is true that in , a Division Bench of this Court held thus:
A Bench of this Court of Moturi Seshayya v. Venkatadri Apparao, 31 M.L.J. 219: A.I.R. 1917 Mad. 950, has held that the plea of res judicata is one which does not effect the jurisdiction of the court and it is only a plea in bar of a trial of a suit or an issue as the case may be, which a party is at liberty to waive. , Even so, in respect of a plea under Order 9, Rule 9, Civil RC, it is one which a party can choose to waive and defend a later action on the strength of this case and on the merits of the controversy. Having invited the court to render a decision on merits it will be most inequitable if the party is allowed to fall back upon a technical plea and oppose an action of the other party when such a plea was wholly available to him even at the very inception of the action and which plea he failed to put forward and instead chose to hazard a decision of the case on merits. We are therefore clearly of the opinion that the further contention of Thiru Kumaraswami that even if Ex.B-7 will not operate as res judicata to the suit instituted by the plaintiff, it would nevertheless preclude the plaintiff under Order 9, Rule 9, Civil RC, from coming forward with the action cannot be sustained. The resultant position will therefore be that the plaintiff succeeds, on both the points which arise for consideration in appeal. In the result, we find that the appeal is deviled of merits, consequently, the appeal will stand dismissed. There will be no order as to costs.
18. Apparently it is clear that the defendant had not only raised a plea, but also produced Ex.B-1 (plaint copy in O.S. No. 358 of 1973) Ex.B-2 (certified copy of decree in O.S. No. 538 of 1973) and the plaintiff also produced Ex. A-6, a certified copy of the order of this Court in C.R.P. No. 274 of 1978 by which this Court confirmed the order passed under order of this Court in C.R.P. No. 274 of 1978 by which this Court confirmed the order passed under Order 9, Rule 9 and declined to restore the suit.
19. However, the court below on a misconception had proceeded as if the said plea is one of res judicata, that the dismissal of the earlier suit would constitute res judicata and had answered the said plea in favour of the plaintiff as there is no decision on merits. Before the appellate court had also failed to consider the same. Therefore it cannot be said that the appellant/defendant had failed to raise the objection or given up the plea put forward before the courts below. This Court holds that the defendant/appellant had not given up the objection raised, nor it can be deemed that the appellant had waived the objection raised in this respect.
20. Coming to the plea viz., bar of fresh suit under Order 9, Rule 9, it is to be pointed out that parties to the suit, the plaintiff is the same so also the defendant. Exception one of the items, the other two items are identical and excepting the relief relating to first item, the relief prayed for in respect of other items viz., 2 and 3 are identical in all respects. Order 9, Rule 9, C.RC. precludes the plaintiff in the present suit from filing a fresh suit as the earlier suit filed by the very same plaintiff against the same defendant had been dismissed under Order 9, Rule 8 and the cause of action was substantially the same in respect of the said two items.
21. There is no difference with respect to the suit items 2 and 3, plea set out in the plaint and the reliefs prayed for. It is not in dispute that Order 9, Rule 9 gets attracted to the present suit as admittedly the earlier suit by the same plaintiff had been dismissed under Order 9, Rule 8 and the application filed under Order 9, Rule 9 had been negatived by the trial court and confirmed in revision by this Court. That being the factual position, the bar of suit adumbrated in Order 9, Rule 9 of the Code definitely preclude the filing of the present suit in respect of substantial portion of the decree.
22. In respect of two out of the three items the relief is not for partition, but one for declaration and consequential relief of injunction. Therefore, it follows the reliance placed by the counsel for the respondent/plaintiff on Kannikandath Kizha Purakkal Vella’s Son Thayyan v. Kannikandath Kizha Purakkal A.I.R. 1935 Mad. 458: 156 I.C. 109 (D.B.), will have no application. It is true the Division Bench of this Court as early as in 1935 held that dismissal of a partition suit for default does not bar the subsequent suit as even after the dismissal of the former suit the jointness continues and there is a continuing cause of action. The Division Bench succinctly answered the point thus:
The first point is whether the present suit is barred under Order 9. Rule 9 by reason by reason of the former suit. Cases of a second suit of partition may fall under three classes. (1) where the former suit ended in a final decree e.g., Soni v. Munshi, 3 Bom L.R. 91(1) distinguished in Madan Mohan v. Baikantha Nath, 10 C.W.N. 839(2), cases where there was a preliminary decree but not a final decree example of this are Mukarjir v. Atul Beg A.I.R. 1915 All. 1, (3) Madamamasababi v. Joyanan, I.L.R. 33 Cal. 1101 (4) and Sethu Rama Sahadev v. Chettru Rama Sahib A.I.R. 1918 Mad. 751 (5) (3) cases where the suit was dismissed for default: Bhishekuer Promed v. Ram Par shad, I.L.R. 28 All. 627 (6).
The case before us falls under the last heading. Following the decisions in Bhishekuer Promed v. Ram Parshad, I.L.R. 28 All. 627(6) and Madura Gramani v. Thummala Sesha Reddy, 1926 Mad. 1018(7), we hold that the present suit is not barred. The reason is that, even after the dismissal of the former suit, the jointness continues and there is a continuing cause of action. It is unnecessary to consider the decision in Sethu Rama Sahadev v. Chettru Rama Sahib A.I.R. 1918 Mad. 751 (5) and whether Madamamasababui v. Joyanan, I.L.R. 33 Cal. 1101 (4) was rightly dissented from in it. The only other point relates to interest. The plaintiff will have interest only from the date of plaint vide: Nachappa Gounden v. Ittichana Mannadiar, 1930 Mad. 727(8). The decree is affirmed subject to this modification. As the appellant has substantially failed, he will pay the costs of the respondent.
23. The learned Counsel relied upon Thota China Subba Rao and Ors. v. Matta Palli Raju and Ors. A.I.R. 1950 EC. 1. The case before the Federal Court related to a suit for redemption of a mortgage where the Federal Court held that the provisions like Order 9, Rule 9 or Order 23, Rule 1 will not debar the mortgagor from filing a second suit for redemption because as in a partition suit the cause of action in a redemption suit is a recurring one. The Federal Court held thus:
It was next argued on behalf of the respondent that although the right to redeem may not be extinguished the remedy was barred. In support of that contention, the learned Counsel relied on the words of Order 23 Rule 1, Civil P.C. In our opinion, the High Court did not properly appreciate the effect of the termination of the former suit of 1929. When that suit reached hearing on 9th November, 1932, the Subordinate Judge wrote a judgment in which, after reciting that the suit in forma pauperis to redeem the three mortgages was filed and four issues were raised, he stated as follows: “the plaintiff has been examined and a number of documents have been marked and suit stands posted to this day of arguments. But today plaintiffs vakil reports that he got intimation not to proceed with the case and filed the letter which he got from his client. This is not a case of withdrawal of a suit but an abandonment of it. Suit is dismissed with costs. Plaintiff shall pay the court fees to Government. The letter from the mortgagor to the vakil is not on the record, but the terms thereof are not material as they will contain only the instructions of a lay client to his pleader. The record shows that the court was informed,’ that the plaintiff was not proceeding with the case. The court interpreted it as a case not of withdrawal but of abandonment and “dismissed the suit with costs.” The circumstances under which the litigation ended show that the case did not fall under the provisions of Order 23, Rule 1 at all. There was no question of a formal defect, or withdrawal of a suit, or abandonment of a part of the claim. Order 23, Rule 1 does not provide for a court’s order dismissing the suit. Order 9, Rule 8, Civil RC, is more properly applicable to the facts. The question then is whether a fresh suit for redemption is barred under the provisions of Order 9. Rule 9, Civil P.C. The material part of that rule runs as follows:
24. It is also to be pointed out that the Apex Court in Chandrakanta v. Balakrishna , held that the dismissal of a suit after a preliminary decree for partition will not operate to wipe out the preliminary decree for partition already passed. The Apex Court held thus:
It appears that after this preliminary decree was passed by the court, a commissioner was appointed. But ultimately the suit was dismissed on the ground that the commissioner’s fee was not paid. But the dismissal of the suit cannot operate to wipe out the preliminary decree.
25. Therefore it is clear that the partition suit as well as the suit for redemption are of such character to which as has been repeatedly laid down, the statutory bar under Order 9, Rule 9 will have no application. In the present case in respect of the reliefs prayed for in the earlier suit ((a) (b) In the former suit) and (b) (c) (d) (e)in the present suit, it is clear they are precluded under Order 9, Rule 9 of the Civil Procedure Code and therefore the plaintiff cannot seek the reliefs as was prayed for and the nature and the basis of the claim are identical in all respects.
26. Only in respect of the first item of the suit property, with respect to which the relief of partition has been prayed for, it was fairly stated by Miss. Meera that the bar imposed by Order 9, Rule 9 will have no application. It is fairly stated and admitted by the counsel for the respondent that first item of the suit property in the present suit was not the subject matter of claim in the former suit and further the relief of partition also was not asked for in the former suit in respect of the first item. Even if so, the relief of partition being asked for in the present suit is not barred under Order 9, Rule 9 as has been held by the Division Bench of This Court in Kannikandath Kizha Purakkal Vella ‘s Son Thayyan v. Kannikandath Kizha Purakkal A.I.R. 1935 Mad. 458 and Commissioner, H.R. & C.E., Madras v. Krishnaswamy .
27. The relief of partition prayed for in respect of 1/3rd share prayed for in respect of Survey No. 591/1 was negatived by the trial court, while the first appellate court had granted a decree in respect of plaintiff’s claim of 1/3rd share in survey No. 591/1. Survey No. 591/1 among other lands were originally purchased by Karmakkal and Subiah Naicker under registered sale deed dated 27.6.1906. This has been accepted by both the parties. Before the first appellate court it was contended that the property was jointly purchased by Karmakkal and Subiah Naicker and Karmakkal was entitled to 1/3rd share while Subbiah Naicker was entitled to 2/3rd share.
28. The plaintiff further pleaded that the said Karmakkal and Subbiah Naicker had orally divided the property purchased by them jointly and Karmakkal was in enjoyment of 1/3rd share while Subbiah Naicker was in enjoyment of 2/3rd share. The plaintiff had claimed the 1/3rd share of Karmakkal; through his father Muthu Naicker who is the admitted son of Kakakkal. Therefore it follows that the plaintiff will be entitled to 1/3rd share in Survey No. 591/1. Though the plaintiff had put forward a case of oral partition between Kamakkal and Subbiah Naicker who are entitled to 1/3rd share and 2/3rd share respectively and who had been in enjoyment of their respective portions, the present suit has been filed for partition and legally there could be no objection for grant of partition.
29. The decree granted in favour of the plaintiff in the present suit for portion in respect of 1/3rd share in the suit first item alone is confirmed and there will be a preliminary decree in this respect. In other respects, the suit instituted by the plaintiff in respect of suit items 2 and 3 and the reliefs prayed for, as already held is barred under Order 9, Rule 9 and the plaintiff has to fail.
30. In view of the above conclusion it is not necessary to refer to the other contentions raised by the counsel appearing for either side as well as the other questions of law framed in this second appeal.
31. In the result, the judgment and decree of the two courts below are set aside and there will be a preliminary decree in O.S. No. 1128 of 1981 on the file of the District Munsif Court, Palani declaring that the plaintiff is entitled to 1/3rd share in Survey No. 591/1 (suit first item) and in other respects the suit will stand dismissed.
32. It is made clear that a preliminary decree for partition is passed in favour of the plaintiff with respect to his 1/3rd share in Survey No. 591/1 (suit first item) and in the final decree proceedings the division will be effected according to law. It is also made clear that the plaintiff has not made out a case for grant of delivery of ‘Blue’ marked portion in the sketch, nor the plaintiff is entitled to the allotment of the said portion and delivery straightaway as the division has to be effected in the final decree proceedings.
33. Both the parties shall bear their respective costs throughout.