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TMI Blog1955 (1) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s Court, Repalle, for partition and separate possession of all the joint family properties. Item 2 of the plaint schedule in the present suit was included as item 8 in the plaint in O. S. No. 318 of 1939 District Munsif's Court, Repalle. The B Schedule attached to the plaint in the former suit related to the property alienated by the defendant. The defendant contended in the prior suit that the latter, dated 20-11-1936, and marked as Ex. A--1 in the present suit was nominal one, that the plaintiff's father Akkayya gave up his interest in the joint family and was not entitled to any share in the suit properties. The trial Court having dismissed the suit, the plaintiff preferred A. S. No. 128 of 1943, before the Subordinate Judge's Court, Tenali. The appellate Court held that Akkayya did not give up any share in the family properties, that the letter dated 20-11-1936, was not a nominal share in the plaint schedule properties. As findings were not recorded on some of the issues, the suit was remanded to the trial Court. The plaintiff filed a memo into Court that he did not press for any relief in regard to B Schedule property alienated in favour of third parties and pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omitted from the preliminary decree by mistake. The plaintiff who was examined in the case as P. W. 1 deposed as to the circumstances under which the mistake crept in the preliminary decree. The defendant did not go into the witness box and suggest any reasons why relief was not given to the plaintiff in respect of item 8. I accept the evidence of the plaintiff. I have no doubt in my mind that the omission to include item 8 in the preliminary decree was the result of a pure mistake. The amendment application in respect of item 8 ought to have been allowed, as in the case of item 6 and no court-fee as for review ought to have been demanded. 3. The Subordinate Judge of Tenali held that the present suit is barred by res judicata by reason of the proceedings in O. S. No. 318 of 1939, district Munsif's Court, Repalle. Mr. K. Kotayya, the learned Advocate for the appellant, contended that the finding on the question of res judicata was unsustainable. He urged that if by mistake or by consent of the parties, a partition is effected of only some of the properties, a subsequent suit for partition of the other joint properties is maintainable. He strongly relied on the decision in -- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on suit, only partial partition had taken place and that therefore, the property covered by the mortgage bond remained joint family property. Per Sadasiva Iyer J., that a complete partition having taken place between the father and the son, the latter was not a necessary party to the suit on the mortgage bond. At page 762, Napier J., followed the decision of the Calcutta, High Court in -- 'Jogendranath Rai v. Baldeo Das', (A). Though Sadasiva Iyer J., did not specifically refer to this decision he held as follows: It follows that after such a partition, none of the parties to it holds any of the properties (till then held jointly) along with any other party, unless the partition agreement or the partition award or decree itself provides for such joint holding or unless there has been accident, mistake or fraud in the non-conclusion of some of the property at the division ............... (except on the ground of accident, mistake of fraud, therefore, there cannot be second partition . 4. Mayne sets out the law in his treatise on Hindu Law (11th Edition) at page 567 as follows: Where at a partition intended to be final some part of the property has been overlooked or fraudule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated the suit as an application for the passing of a final decree in the earlier suit, it was not really necessary for them to consider the correctness of the decision of the Calcutta High Court in 35 Cal 961 (A). Moreover when there is a conflict between two Bench decisions of the Madras High Court, it is open to me, as stated by Salmond in his book on Jurisprudence (10th edition) at page 189 to prefer and follow the Bench decision which is in accordance with justice and legal principles. I prefer to follow the earlier judgment in AIR 1917 Mad 761 (D). In -- 'Subramaniam v. Lakshminarasamma', AIR 1927 Mad 213 (F), Devadoss J., has also taken a view, differing from that of Sadasiva Ayyar J., in AIR 1918 Mad 751 (E). Moreover the decision in -- 'Abhirami Ammal v. Challammal', AIR 1938 Mad 287 (G), is in accordance with the principle laid down in 35 Cal 961 (A). What was held in that case was that a subsequent suit for partition was maintainable and was not barred by Res Judicata, if the parties agreed not to take advantage of the earlier decree for partition and had continued to be in joint possession of the properties. 6. Moreover the rule laid down by Sadasiva Ayy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is raised that the present suit is barred by the terms of O. 2, R. 1, Civil P. C. The decision of the Supreme Court in -- 'Sankar Sitaram v. Balakrishna Sitaram', [1955] 1 SCR 99 (L), only related to a question as to how for a compromise decree operated as Res Judicata and it has, therefore, no bearing on the question to be decided in this appeal Reliance was placed by the learned Advocate for the respondent on the decision in -- 'Kachu v. Lakshmansingh', 25 Bom 115 (M), and 'Sreekisto Biswas v. Joy Kristo Biswas', 24 WR 304 (N), in support of the proposition that the plaintiff is bound to raise every title on which he can succeed and to obtain a decision upon every part of his case and that if it be found that any part of the case which he made has been neglected by the Court which tried the suit, he is at liberty to bring a fresh suit in respect of such party. Those decisions are not applicable as item 2 in the present suit was included as item 8 in the prior suit. Mr . K. Kotayya, the learned advocate for the appellant relied on the decision in -- 'Gouri Sankar v. Gurupada Haldaar', in support of the contention that where a decree is silent as reg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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