1. This appeal by the defendants arises out of a partition suit. The facts are that the plaintiff Hari Nath, Madhu Sudan and Radha Charan (father of the appellants Sasi Mohan and others) were three brothers living jointly in the common ancestral house. In 1916 the present plaintiff Harinath instituted a suit for partition of their family properties against his two brothers. In that suit a Commissioner was appointed who proposed a partition of the homestead of the parties in a certain way. The matter came up before the Court which accepted the Commissioner's report with a slight modification with which we are not concerned at present. The decree passed in the suit was in effect that
the suit be decreed the Commissioner's report and map form parts of the decree, and the allotments made by the Commissioner subject to the modification noted above be the basis of the partition.
2. By that decree the residential portion of the homestead was partitioned but some portions were left ejmali or joint among the parties. They consisted of pathways, tanks, cremation ground, ditches &c...;&c....; Subsequent to this suit the plaintiff purchased the share of Madhu Sudan and is now entitled to two-thirds of the homestead. The present suit is brought by him for partition of those portions of the homestead which were kept ejmali and joint in the former suit. Both the Courts have decreed the plaintiffs' suit. They have held that the properties in suit were excluded from partition in the previous suit and hence are liable to re-partition. The learned District Judge in the appellate Court remarked:
It should be noted that at the request of the parties the properties which form the subject-matter of the present appeal were excluded from partition and were subsequently held jointly.
3. It is proper that at this stage we should understand correctly the position in which the parties stand at the present moment. The expression used by the learned Judge that the properties in suit were excluded from partition in the previous suit should be understood as meaning that the properties in suit were by agreement of parties left out of partition and allowed to remain joint as before. Objection is taken by the learned advocate for the appellant to this remark on the ground that it is not correct to say that the properties which were left joint under the former decree were so left at the request of the parties. He has placed before us the report of the Commissioner in the previous suit and we find on a perusal of it that the objection taken to the remark that at the previous partition the parties agreed that some of the properties should remain joint is not without substance.
4. It has been broadly argued before us on behalf of the respondent that under the law if a property is left undivided in a suit and continues to be joint it can be subsequently partitioned. As a bare proposition of law no exception can be taken to it. Co-owners have the absolute right to divide all joint properties amongst themselves either privately or through the assistance of the Court. They can by agreement, if they are so minded, divide some of the properties either out of Court or through the assistance of the Court leaving some in joint possession. Such properties which are left out with the consent of the parties at the time of partition may undoubtedly be partitioned later. But the present case stands on a different footing. The question to be decided in this case is whether the decree in the previous suit operates as res judicata in the present case in so far as it bars the plaintiff's right to claim partition of the properties which were dealt with in that suit.
5. In support of the proposition that has been argued before us by the learned advocate for the respondent, reference has been made to several cases. They are not exactly in point but there are observations in them which certainly support the respondent's contention. In Bhuban Mohini Dasi v. Kumudbala Dasi : AIR1924Cal467 the lower Court passed a preliminary decree for partition and ordered that an enquiry be made as to the extent of the joint properties to which the preliminary decree for partition should apply. Objection was taken in that case that such a decree was not a proper decree. The learned Judges, after holding that a decree like the one passed in that suit ordering a partition of the joint properties in suit and directing a subsequent discovery of such joint properties could be passed in a partition suit, observed that properties left out of partition might also be subsequently partitioned and hence the decree which ordered partition and directed ascertainment of all the joint properties of the parties some of which were not included in the suit could not be bad in law. In Jogendra Nath Rai v. Baladeo Das  35 Cal. 961, a mehal was partitioned among co-owners but a portion of it which was jungly was left out of partition by mistake. It was held that the portion of the mehal which was left out of partition by mistake could be re-partitioned. In Bhaxvani Prasad Shaha v. Juggemath Shaha  9 C.L.J. 133 the assets of the joint properties were determined but certain properties which were ignored ware not included in the amicable partition between the parties. The learned Judges held that if they were joint properties and were not included in the previous partition and if they still continued to be joint properties the plaintiff was entitled to a share therein. In the case of Monsharam Chakravarty v. Ganesh Chakravarty  17 C.W.N. 521 there was a suit for partition of properties held jointly by the plaintiffs and the defendants. Subsequent to the decree in that suit there was another suit brought by a party to that suit for partition of some of the properties which were owned and possessed jointly and were not partitioned by the previous suit. These properties fell under two heads; some of them were properties which were included in the previous suit but were left undivided by the consent decree made therein and some others were not included in the previous suit for partition. In respect of the latter class of properties the defendants contended that the claim was barred by Section 43, Civil P.C. (Order 2 Rule 2) of 1882. The trial Court overruled the objection but the lower appellate Court held that the suit was barred. The question that arose in that suit was whether one of two tenants-in-common who had sued for partition of a part of the properties jointly held by them was at liberty to bring a suit for partition of the remainder of the properties. This question was answered in the affirmative. In discussing the proper construction to be put on Section 43 and as to whether the cause of action alleged in the plaint in the subsequent suit was identical with the cause of action alleged in the former suit it was observed:
Where there has been an infringement of one right and one cause of action has arisen the plaintiff must make his whole claim, once for all, in one suit. Now, the right on the part of a tenant-in-common to have each field separately divided between himself and his co-tenant is one thing, his right to claim a partition of all the fields held by them as tenants-in-common is another thing, and the circumstances that there has been an adjudication as to certain parcels of land on the footing of an alleged right of the former sort does not preclude a subsequent suit for partition of what is still jointly owned and held by the co-parceners.
6. Their Lordships held that the causes of action of the two suits were not so identical as to attract the operation of Section 43, Civil P.C. No observation was made by the Judges with reference to the first class of properties which were left undivided by the consent decree made in the previous suit. These are all the cases in support of the respondents' contention.
7. There is a case of the Bombay High Court in which the observation made by one of the Judges lends support to the appellants' contention. In Shantaram Balkrishna v. Waman Gopal A.I.R. 1923 Bom. 85, the Acting Chief Justice held that where a strip of land was reserved as common passage for the use of the co-parceners who were Hindus, the land so reserved could not be partitioned subsequently according to the Hindu law. Crump, J., agreed with the view of the Hindu law taken by the learned Acting Chief Justice, but also based his decision on the general principle that when there is no bona fide error or that the partition was of a partial nature the effect of the decree in the previous suit was to decide that the properties of which partition was subsequently sought should be reserved as a common passage; it would follow from the decree itself that that passage was not property such as could be the subject of a further partition.
8. On an examination of these authorities and on considerations of justice and equity and of the law applicable the following results seem to be evident : (1) If in the previous suit for partition a property is left out either intentionally or by mistake and no objection is taken by party to a partial partion and the properties in that suit are partitioned a subsequent suit for partition of the property so left out and still held in joint possession is maintainable; (2) where properties included in the previous suit were left out of partition with the consent of parties who agreed that they should remain in joint possession of the parties they may also be partitioned in a subsequent suit; (3) where the decree in the previous suit dealt with the properties included in that suit and directed; that some of them should remain joint between the coparceners a subsequent suit for partition thereof cannot be maintained in view of the provisions of Section 11, Civil P.C. If a party institutes a suit invoking the assistance of the Court to partition the properties which he has held jointly with the defendant and the Court in effecting the partition holds that a certain portion of the properties cannot conveniently be partitioned or are in their very nature indivisible and impartible a subsequent suit for partition of such properties will not lie as that might mean a reopening of the partition made in the previous suit.
9. Applying these deductions which I have made to the facts of the present case it appears that proper enquiry has not been made in the Courts below with regard to the nature of the properties left joint under the decree in the previous suit. It is possible that some of the properties were left joint with the consent of parties. These will be according to the view I have ventured to take on the question of law capable of partition. But such portions of the properties in suit which the Court in that suit held as incapable of partition or should not be partitioned having regard to the equitable enjoyment of the other portions of the properties cannot be partitioned in a subsequent suit. It is necessary therefore that an enquiry should be made by the Court as to the nature of the properties left joint in the previous suit. It should be ascertained what portions of the properties in suit were left joint in the former suit by the decision of the Court. The suit with reference to such portions must fail. If any portions were kept joint with the consent of the parties or under such circumstances as not to make them subject of the decision of the Court and were not rendered subject of the decision of the Court they may be partitioned subject to the decision of the Court as to what portion of them should in justice and equity be not partitioned.
10. In the result the decrees of the Courts below are set aside and the ease remanded to the Court of first instance for decision according to law in view of the observations made above Costs of this Court as well as of the Courts below will abide the result and will be apportioned according to the extent of the success of 4bi parties.
11. I agree.