Mukerji and Dalal, JJ.
1. The plaintiffs' suit for partition was dismissed by the lower court on the ground that it was barred by the principle of res judicata. It appears that the plaintiffs, excepting one Lallu, subsequently born, had sued on the 8th of September, 1919, for partition. This suit was compromised and both the parties filed a joint petition on the 31st of August, 1920. It was to the effect:
In the above case the parties entered into a compromise at the remonstrance of a few respectable persons. The parties shall bear their own costs. The plaintiffs withdrew their claim. Hence the claim should be struck off.
2. This petition of compromise was verified by all the parties. A decree was passed in accordance with this compromise. The order was:
It is ordered and decreed that according to the compromise this case be struck off. The parties to bear their own costs.
3. The terms of the compromise are not given and the conclusion we draw is that at that particular time the plaintiffs did not desire to press their claim for partition. There was no decision arrived at, that the plaintiffs had no interest in the properties in suit, or that they were not joint holders of the properties with the defendants.
4. The learned Judge of the lower court has relied on a Division Bench ruling of this Court, Gulkandi Lal v. Nanni Lal (1901) I.L.R. 23 All. 219. That ruling, however, was not followed in a subsequent case of this Court, T.C. Mukerji v. Afzal Beg (1914) I.L.R. 37 All. 155, which ruling was based on a ruling of this Court, Nasratullah v. Mujibullah (1891) I.L.R. 28 All. 309, prior in date to the case reported in I.L.R. 23 All. Subsequent to 23 All, and prior to the 1914 ruling an the case of J.C. Mukerji, a Bench of this Court held in Bisheshar Das J. Ram Prasad (1906) I.L.R. 28 All. 627, that where a suit for partition was dismissed for default and a fresh suit instituted, there would be no bar under Section 13 of the (old) Code of Civil Procedure, because the right to enforce partition is a legal incident of a joint tenancy and as long as such tenancy subsists, any of the joint tenants may apply to the court for partition of a joint property. One of the Judges, who delivered the judgment in 1906, was one of the two who delivered judgment in 1901 in the case reported in I.L.R. 23 All. In 1906 the Calcutta High Court held, Madon Mohon Mondul v. Baikanta Nath (1906) 10 C.W.N. 839, that a fresh suit for partition is not barred by Section 13 of the Code of Civil Procedure, when a previous suit for partition by the plaintiffs has been compromised. The suit was subsequently dismissed on parties failing to appear during execution proceedings of the preliminary decree passed on compromise. The learned Judge observed, at page 840, col. 2, of the report, following the ruling in 13 All. page 309, that a suit for declaration of right for partition differs from most other suits in this respect that so long as the property is jointly held, a right to partition continues. For these reasons, we do not think that the lower court was correct in following the ruling in the case of Gulkandi Lal.
5. We set aside the decree of the lower court and remit the suit to it for trial on the merits. Costs here and heretofore shall abide the result.