Norman Macleod, Kt., C.J.
1. The plaintiffs sued for partition and separation of their half share in the plaint lands. The first issue was whether the suit was barred by Order II, Rule 2, Civil Procedure Code. That issue was found in the affirmative by the trial Court, and the plaintiffs' claim for partition was disallowed, but a decree was passed against certain of the defendants for Rs. 150, being the plaintiffs share of the profits of the suit property. An appeal against that decree was dismissed. It has been found that the plaintiffs were entitled to a moiety of the Mulgeni lease relating to the land, and in the Record of Rights of 1909, the plaintiffs were entered as Mulgenidars along with the defendants' family.
2. Then, in 1916, the plaintiffs claimed to have let their moiety of the Mulgeni to defendants on Chalgeni for Rs. 50 a year, and they claimed live years' accumulation of unpaid rents. The Court held that there was no evidence of any Chalgeni, But it held also that plaintiffs and defendants were tenants-in-common, and as the defendants could not prove exclusion, they had to pay the plaintiffs their half share of the mesne profits.
3. In this suit they asked for partition, in addition to the profits belonging to their share. Now it will be seen that the cause of action on which the plaintiffs relied in the suit of 1916 was a Chalgeni lease. It was found that there was no such lease. The Court, however, gave them something which they did not ask for, namely, profits belonging to their share as Mulgenidars. It is difficult to see then how it could possibly be said that the cause of action in the present suit has any connection with the cause of action in the suit of 1916. But even if the plaintiffs in that suit had claimed a half share of the profits in the suit property, which belonged to them and the defendants as tenants-in-common, without suing for partition, I cannot see how such a suit would bar a later suit for partition under the provisions of Order II, Rule 2. It is always open to a tenant in-common to claim his half share of the profits of the land which is jointly owned, and there is no obligation lying on him in his suit for profits, also to claim partition. The cause of action in a suit for profits would be the fact that there is a tenancy-in-common, the fact that one of the tenants has collected the whole of the rents, and the fact that the other tenant is entitled to his share, and the relief which could be claimed on that cause of action would be half a share of the profits. There must always be a constantly recurring right for one tenant to demand partition from the other. Therefore it would always be open at any time, as long as the tenancy-in-common continued, for one tenant to file a suit for partition irrespective of any suit or suits which had been filed between them for a share of the profits during the continuance of the tenancy-in-common. Therefore it is clear that Order II, Rule 2, does not apply to this case, and the claim for partition must be tried on its merits. The appeal must be allowed and the suit returned to the trial Court for disposal. The appellant will be entitled to his costs in this Court and in the lower appellate Court. The costs in the trial Court will be costs in the cause.
4. It seams to me clear that the cause of action in the previous suit is not identical with the cause of action in the present suit. The words 'cause of action' must, I think, be interpreted with reference to those facts which the plaintiff set out as grounds for the relief he claimed. In the previous suit he sued as a landlord to recover rent. In that suit it is difficult to see how he could have claimed partition of the property. That in the course of that trial it was held that he was jointly interested in certain properties and was therefore entitled to a share in the profits does not alter the cause of action on which the suit was based. The cause of action for the later suit is the co-tenancy which was held proved in the former suit; and it is clear that those two causes of action are not identical, and, therefore, Order II, Rule 2, has no application here. Indeed it would be unfortunate if we were compelled to dismiss the suit on any such grounds, for that would clearly lead to most inconvenient results.