1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO. 701 OF 2006 WITH CIVIL APPLICATION NO.1958 OF 2005 Govind Rama Patil & Anr. ...Appellants. v. Kisan Rama Patil & Ors. ...Respondents. Mr.Sachin Punde i/by R.L.Patil, advs. For the Appellants. Mr.B.G.Tangsali, adv. For the Respondents. CORAM : J.H. BHATIA, J. DATED : 11th September , 2009 P.C. 1 The respondent no.1 filed regular civil suit no.146/97 for partition and separate possession in respect of certain property. Plaintiff and defendant nos.1 and 2 are brothers inter-se. Defendant nos.3 to 5 are their sisters. Plaintiff filed suit for partition in respect of the property shown at Sr.Nos.1 to 5. According to him, property shown at Sr.Nos.6 to 10 were already sold away by the defendant nos.1 and 2 but he was unable to pay Court-fee and, therefore, he was not claiming partition of those properties but reserved his right to claim his share in those properties later on. Defendant nos.1 and 5 filed written statement and denied the claim of the plaintiff. According to them, oral partition had already taken place and plaintiff had also sold away one property. It was 2 also contended that he could not reserve right to claim partition of the property shown at Sr. Nos.6 to 10. It was contended that as the partition was not sought about all the properties, suit is liable to be dismissed. The trial Court after hearing the parties held that suit property was joint property of the parties. The trial Court rejected the contention of the defendant nos.1 and 5 that the oral partition had taken place. However, the trial Court dismissed the suit only on the ground that plaintiff could not reserve his right to claim share in the property shown at Sr. Nos.6 to 10 in future and as he had not claimed partition of all the property, suit is liable to be dismissed. Accordingly suit came to be dismissed. Plaintiff preferred regular civil appeal no.159/01. The appeal was allowed and decree for partition was passed in favour of the plaintiff. Therefore, original defendant nos.1 and 5 have preferred the present appeal. 2 Heard the learned counsel for the parties. On perusal of the record, it appears that both the Courts below gave concurrent finding that the suit property is joint family property of the plaintiff and the defendants. The trial Court also rejected the contention of the defendant nos.1 and5 that oral partition had taken place. The trial court noted that mutation entry was taken on the basis of alleged oral partition but that mutation entry was later on cancelled on the ground that it would create 3 fragments of the lands and fragments could not be permitted as consolidation of lands had already taken place. This oral partition was not recognised. The trial Court dismissed the suit only on the ground that the plaintiff was not seeking share in all the property and he could not reserve his right to claim partition and share in the property shown at Sr. Nos.6 to 10. Appellate Court held that the partition could not be refused in respect of property nos.1 to 5, which are proved to be joint family property. 3 Whether the plaintiffs can seek partition of the property shown at sr.nos.6 to 10 in subsequent suit need not be considered in the present litigation. The learned counsel for the appellants relied upon provisions of Order II Rule 2 of the C.P.C. Sub-rule 1 provides that every suit shall -include whole of the claim, which the plaintiff is entitled to make in respect of the cause of action but the plaintiff may relinquish in portion of this claim in order to bring suit within the jurisdiction of the Court. Sub-rule 2 provides that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. The bar against filing the second suit for partition under Order II Sub-rule 2 will be applicable only to the subsequent suit and not to the first suit. In 4 the present suit, the plaintiff has either relinquished his share or has omitted to sue in respect of some of the property. On that ground, present suit cannot be dismissed wherein he seeks partition of some of the property, which are joint family property. As and when he may file subsequent suit about the properties in respect of which he has omitted to sue in the present litigation, objection can be taken that the subsequent suit is not barred under Order II Rule 2 of the C.P.C. The objection to the tenability of the present suit under Order II Rule 2 is misconceived and is based on the misinterpretation of Order II Rule 2. 4 Taking into consideration the facts and the legal position, I find that no exception can be taken to the judgment and decree passed by the first appellate Court. No question of law is involved in the present appeal. Therefore, the appeal stands dismissed. 5 As the appeal itself is dismissed, Civil Application No. 1958/05 for stay does not survive and the same stands disposed off. (J.H. BHATIA,J.)