JUDGMENT
Henry Richards and Pramada Charan Benerji, J.
1. This appeal arises out of a suit for partition of a house. The plaintiff alleged that he was entitled to three fourths of the house whilst the defendants were entitled to one fourth. The court below, without going into the merits of the case, held that the suit is not maintainable upon the ground that there was a previous suit between the plaintiff and the predecessor in title of the defendants for partition of this very house which was dismissed on the 11th of November, 1905, and the plaintiff did not obtain permission to bring a fresh suit. It appears that when the previous suit was instituted the predecessor in title of the defendants agreed to execute a sale deed to the plaintiff of all his rights in the house for the sum of Rs. 5,750. It is admitted on both sides that this agreement was never carried out. The plaintiff says in his plaint that after repeated attempts to get the sale deed executed the predecessor in title of the defendants refused to execute the sale. We think the decision of the court below was wrong. As soon as the defendants or their predecessor in title failed to carry out the compromise the parties were relegated to their rights as they existed prior to the compromise. The right to bring a suit for partition unlike other suits is a continuing right incidental to the ownership of joint property. It may be that at one time the desire for partition may cease, circumstances may again occur which make it desirable or necessary that partition should take place. Reliance has been placed by the respondents on the case of Gulkandi Lal v. Manni Lal (1901) I.L.R. 23 All. 219, where the facts were very similar to the facts of the present case. We find that the question involved had been previously decided in the case of Nasrat-ullah v. Mujib-ullah (1891) I.L.R. 13 All. 309. This case was followed in the case of Bisheshar Das v. Ram Prasad (1906) I.L.R. 23 All. 627, one of the learned Judges being the same as had decided the case of Gulkandi Lal v. Manni Lal. There is a Calcutta ruling to the same effect, viz., Madon Mohon Mondul v. Baikanta Nath Mondul (1906) 10 C.W.N. 839.
2. We may observe that no question of title was determined in the previous litigation and so no question of res judicata arises.
3. We allow the appeal, set aside the decree of the court below and remand the case to that court with directions to re-admit it under the original number on the file, and proceed to hear and determine the same, according to law. The appellant will have his costs of this appeal. Other costs will be costs in the cause.
