Hakim Singh v. Natin and Mst. Hawan Kuer — 1954 DIGILAW 236 (ALL)

JUDGMENT R.N. Gurtu, J. - This is an appeal by two of the Defendants in the suit. 2. In order to appreciate the point which has been argued before me, it is necessary, before I set out the facts relating to the present suit, to state the facts relating to an earlier suit No. 337 of 1947, as the contention of learned Counsel for the Appellants before me has been that the present suit is barred by Order II, Rule 2 of the CPC Code. 3. Suit No. 337 of 1947 was also brought by the present Plaintiffs as against the present Defendants. It was a reversioner's suit for a declaration that the deed of transfer dated 31st January 1947 executed by one Smt. Hawan Kuer, Defendant No. 1, in favour of Hakim Singh and Prag Singh, the other Defendants in the suit, was not binding on the Plaintiffs beyond the lifetime of Smt. Hawan Kuer. 4. The Plaintiff's allegation in that suit was that on the death of Smt. Hawan Kuer's husband's brother, Murli, in 1942, Smt. Hawan Kuer entered into possession of the property as a widow holding a limited estate. The Plaintiffs claimed that they were the nearest reversioners of Murli and that Hakim Singh and Prag Singh had obtained the deed of transfer from Smt. Hawan Kuer by influencing her and that the deed was without any consideration and legal necessity. They, therefore, asked for a declaration as set out earlier. 5. Hakim Singh and Prag Singh alleged that the deed from Smt. Hawan Kuer was perfectly valid and binding, that she was in adverse possession of the property in suit and thus could alienate it and that the Plaintiffs were not the reversioners and, as such, had no right to sue. They also pleaded the bar of Section 42 of the Specific Relief Act. 6. This suit No. 337 of 1947 was dismissed by the learned Munsif of Fatehabad on 23rd August 1948. He held that the Plaintiffs were the nearest heirs of Murli and that Smt. Hawan Kuer had not acquired any title by adverse possession. They also pleaded the bar of Section 42 of the Specific Relief Act. 6. This suit No. 337 of 1947 was dismissed by the learned Munsif of Fatehabad on 23rd August 1948. He held that the Plaintiffs were the nearest heirs of Murli and that Smt. Hawan Kuer had not acquired any title by adverse possession. Then he held that the suit had proceeded on a wrong basis because Smt. Hawan Kuer was not Murli's widow but was the widow of his brother, Karan Singh, and Smt. Hawan Kuer's husband having died prior to the death of Murli, she could not have been in possession as a limited owner and, therefore, Murli's heirs, the present Plaintiffs, were entitled to immediate possession of the property on Murli's death and, therefore, they should have sued for possession also and not for a declaration only. The suit was, therefore, dismissed. 7. After the dismissal of Suit No. 337 of 1947, the Plaintiffs in that suit brought the present suit out of which this appeal arises. They impleaded Hakim Singh, Prag Singh and also Smt. Hawan Kuer. 8. The plaint in the present suit alleged that on the death of Karan Singh, his brother, Murli, inherited the right and interest of the deceased and on Murli's death in 1942, Smt. Hawan Kuer got her name mutated in revenue records by entering into wrongful possession of the whole Zamindari with the help of Defendants 1 and 2. They alleged that they were the heirs of Murli and that Smt. Hawan Kuer's possession was without any right and title, and that she had been persuaded by Defendants 1 and 2 to execute an inoperative deed of gift in their favour on 31st January, 1947, that the possession of the Defendants was wrong and the Plaintiffs had repeatedly asked the Defendants to give up their possession and redeliver the Zamindari property to the Plaintiffs but they had refused. The Plaintiffs prayed for a decree for possession over the Zamindari after eviction of the Defendants and for such further relief as the court considered just. 9. The Defendants Nos. 1 and 2 entered defence. They admitted that Smt. Hawan Kuer had executed a deed in their favour and pleaded that the Plaintiffs had no cause of action against them. The Plaintiffs prayed for a decree for possession over the Zamindari after eviction of the Defendants and for such further relief as the court considered just. 9. The Defendants Nos. 1 and 2 entered defence. They admitted that Smt. Hawan Kuer had executed a deed in their favour and pleaded that the Plaintiffs had no cause of action against them. They further pleaded that they themselves were the nearest heirs of Murli and Karan Singh and that Murli and Karan Singh lived separate from each other. They pleaded that the deed in their favour could, in any case, be operative as a surrender deed. They then pleaded that the suit was barred by Section 42 of the Specific Relief Act and by Section 11 of the CPC Code. 10. Now on these pleadings, the parties in the present suit went to court. The armed Munsif framed several issues, these ate as follows:- 1. Are the Plaintiffs nearest survivors of Murli and Karan Singh? 2. Did Mst. Hawan Kunwar execute by deed of gift in favour of the Defendants? Is it null and void as alleged in the plaint? 3. Is the suit barred by Section 42, specific Relief Act? 4. Is the suit barred by res-judicata? 5. Whether the Plaintiffs are entitled to possession of the Zamindari property on dispute? 6. To what relief, if any, are the Plaintiffs entitled? 11. The learned Munsif found in favour of the Plaintiffs on issue No. 1. He held hat Smt. Hawan Kuer had no interest on the property and that the deed executed by her in favour of the Defendants was null and void. He held that Section 42 of the Specific Relief Act did not bar the suit, nor was the suit barred by Section 11 of the CPC Code. The suit was ultimately decreed with costs. 12. Upon appeal, the learned lower appellate court held that the Plaintiffs were the heirs of Murli and that the suit was not barred by res judicata u/s 11, CPC Code. Apparently, these were the only two points argued before it. In the end, the lower appellate court dismissed the appeal with costs. 13. The Defendants, Hakim Singh and Prag Singh, have preferred this appeal and have impleaded the Plaintiffs and Smt. Hawan Kuer as Respondents. It appears that Smt. Hawan Kuer has not been served. Apparently, these were the only two points argued before it. In the end, the lower appellate court dismissed the appeal with costs. 13. The Defendants, Hakim Singh and Prag Singh, have preferred this appeal and have impleaded the Plaintiffs and Smt. Hawan Kuer as Respondents. It appears that Smt. Hawan Kuer has not been served. There was some controversy whether she was dead or not. In any case, she did not put in a written statement and therefore, I do not consider that the failure to serve her brings about an abatement of the appeal. She has now no further interest left in the property and is practically a pro forma Defendant. 14. Learned Counsel has not attacked the judgment of the lower appellate court on any other ground than that the suit was barred by Order II, Rule 2. This was a ground which was not taken at any stage, but it has been mentioned in the grounds of appeal and learned Counsel says that order II, Rule 2 is but another aspect of the law of res judicata and that he should be allowed to argue the point. The point raised is a point of law and the facts are not in dispute. I have therefore, allowed him to do so. 15. Learned Counsel has argued that the present suit is based on the same cause of action as suit No. 3(sic)7 of 1947 and, is therefore, hit by Order II, Rule 2. He has cited certain cases in support of this proposition with which I will now deal. 16. The first case relied upon is Ram Lal and Ors. v. Mir Jahangir Ali 5 Indian Cases, page 126. In that case, one Mst. R. had brought a suit against the Defendants for damages on the ground that the Defendants had dispossessed her from the lands in suit by ploughing up her standing crops on the said land and taking possession of the standing trees. She did not include in the suit a claim for recovery of possession. Subsequently in 1907, R. executed a lease in respect of the land in favour of the Plaintiff, who sued for recovery of possession and for mesne profits. She did not include in the suit a claim for recovery of possession. Subsequently in 1907, R. executed a lease in respect of the land in favour of the Plaintiff, who sued for recovery of possession and for mesne profits. It was held that: The suit was barred by Section 43 of the Code of Civil Procedure, 1882, inasmuch as the Plaintiff's lessor, R. omitted to include in her previous suit the claim for possession which she was entitled to make at the date of instituting her suit. 17. There can be no doubt that upon the allegations with which Mst. R. had come to court, she was entitled in the 1907 suit to make a claim for possession and, therefore, the suit was hit by Order II, Rule 2. 18. In Ganga Narain v. Ramesh Chand 1944 A.W.R. 5 (sic) the Plaintiff Respondent had brought a suit to recover arrears of rent relating to Kharif and Rabi 1343 Fasli, Kharif 1344 Fasli and Rabi 1348 Fasli, The suit was decreed by the learned Assistant Collector only for the rent relating to Rabi 1348 Fasli. The learned Assistant Collector held that the suit for the other years was barred by Order II, Rule 2, CPC Code. In appeal, the learned Additional Civil Judge took an entirely contrary view and decreed the entire claim of the Plaintiff Respondent. The Defendant went up in second appeal and relied upon Order II, Rule 2. The Plaintiff Respondent replied that his omission to sue earlier was not intentional but that was because he did not know whether he was entitled to bring that part of the suit while Act XVIII of 1939 was in force, and that Order II Rule 2 would not apply. The contention however was not accepted. 19. This was really a case where the Plaintiff Respondent could be taken to have relinquished the rest of his claim even though on a mistaken view of his right to sue and it was on that basis that the second appeal in this Court was disposed of. 20. In Kashi Rai v. Mt. Kali Kueri and others AIR 1923 All, 554 a Plaintiff who was out of possession throughout sued for a declaration that he be declared an occupancy tenant. His suit was dismissed on the ground that he had not substantiated his position as occupancy tenant. 20. In Kashi Rai v. Mt. Kali Kueri and others AIR 1923 All, 554 a Plaintiff who was out of possession throughout sued for a declaration that he be declared an occupancy tenant. His suit was dismissed on the ground that he had not substantiated his position as occupancy tenant. He filed another suit for possession against the Defendants. It was held that: His suit was barred by res judicata; and that he could not be allowed to contend in the second suit that the Court should not have gone into the merits in the former suit, as in that suit he would have failed only on the ground that he sued for mere declaration, when he ought to have sued for possession as well. 21. This is not really a case under Order II, Rule 2. 22. In Rangayya Goundan and Anr. v. Nanjappa Rao and others 28 Indian Appeals, page 221 the purchasers had brought a suit against the vendors for specific performance of their agreement. It appears that previously both parties had filed cross-suits. The purchasers in the cross-suit had omitted to seek the relief now claimed. It was held that the subsequent suit was barred by Section 43 of the CPC Code. 23. This was, therefore, a case where a relief, which could be sought, was omitted. 24. In Muhammad Hafiz and Anr. v. Muhammad Zakariya and others 49 Indian Appeals, page 9 a simple mortgage had been executed in 1910 and it provided by Clause 2 that the interest should be paid monthly, and that if it was not paid for six months, the mortgagee could realise either the unpaid interest only, or both the principal and interest, by bringing a suit without waiting for the expiration of the time provided for repayment of the principal by Clause 7, which provided that if the principal, with interest, was not paid within three years the mortgagee could sue for principal and interest, together with incidental expenses. In 1914 the mortgagee sued in respect of the interest d(sic) and obtained a decree. In 1915 (sic) brought a second suit in respect of the principal and the interest then due, (sic) was held that the second suit could n(sic) be maintained having regard to Order II, Rule 2(1). In 1914 the mortgagee sued in respect of the interest d(sic) and obtained a decree. In 1915 (sic) brought a second suit in respect of the principal and the interest then due, (sic) was held that the second suit could n(sic) be maintained having regard to Order II, Rule 2(1). Their Lordships at page 14 have remarked as follows: In Rajah of Pittapur v. Venkita Mah(sic) patisurya ILR (1885)12, I.A. 116 it is said that the cause (sic) action means the cause of action for which the suit is brought, and it does not say that every suit includes ever cause of action. Their Lordships s(sic) no reason to attempt to qualify or (sic) extend those words, because they a(sic) in fact nothing but a repetition of the exact words of the Code; the cause (sic) action is the cause of action which give occasion for and forms the foundation of the suit, and if that cause enables man to ask for larger and wider relief than that to which he limits his claim he cannot afterwards seek to recover the balance by independent proceedings. It is because the Plaintiffs in the second suit were obviously trying t(sic) recover the principal by an independence suit that Order II, Rule 2 became applicable. 25. In all the cases covered by Order II Rule 2 cited by learned Counsel for the Appellants, the bundle of facts which had to be proved in the two litigation were identical. Therefore, the cause of action was the same and an omission to claim, in the previous suit, all the reliefs that could be previously claimed whether such omission was by mistake or otherwise, had the result of deprivin(sic) the Plaintiffs of the right to claim the omitted portion of the relief in the sub sequent suit by reason of Order II Rule 2. 26. Now the relief which the present Plaintiffs were asking for in the earlie(sic) suit was a relief to which they would have been entitled upon establishing the facts that they alleged. The facts that they alleged were that they were the nearest reversioners of Murli, Secondly they were alleging that the widow Hawan Kunwar, had succeeded as Hindu widow with a limited estate. The facts that they alleged were that they were the nearest reversioners of Murli, Secondly they were alleging that the widow Hawan Kunwar, had succeeded as Hindu widow with a limited estate. The third fact was that she had executed deed of gift in favour of the other two Defendants in the case which was with out legal necessity and so beyond he power. It is true that the death of Murli in 1942 was alleged to be the foundation of their case, but they had alleged those several other facts also and they had to prove all these facts before they could have got their relief. The essential facts, which had to be proved in the case, constituted the cause of action in that case. The relief which the Plaintiffs were claiming could have been granted to them only if the facts alleged by them had been established. Theirs was a claim as reversioners who were not entitled to immediate possession during the lifetime of Smt. Hawan Kunwar and they sought a declaration that the deed would not be effective against them after the lifetime of Smt. Hawan Kunwar. 27. It appears from the judgment in that case that parties were then agreed that Smt. Hawan Kunwar was a widow with a life interest. It is only because the Judge suo moto examined the legal position that he came to the conclusion that Smt. Hawan Kunwar could not be held to be holding a widow's estate and it is on that basis that he dismissed the suit for declaration without giving any opportunity to the parties to correct their mistake. 28. Now what are the bundle of facts which the present Plaintiffs have to establish in the present case? They must of course, establish that Murli died in 1942. They must then establish that Karan Singh died before his brother, Murli, and that, therefore, the widow, Hawan Kunwar, could not succeed to any widow's estate. They must then establish that they are the nearest heirs of Murli, that the Defendants are in possession and further that the deed was beyond the power of Smt. Hawan Kunwar. The relief they ask for in an immediate relief for possession following upon their assertion that succession had opened out to them in 1942 and that there was no body else who stood between them and the succession. The relief they ask for in an immediate relief for possession following upon their assertion that succession had opened out to them in 1942 and that there was no body else who stood between them and the succession. It would thus appear that the facts which had to be established in the former case are, in many ways, different from the facts which have got to be established in this case. In order to establish their cause of action, it is not only necessary for the Plaintiffs to establish in this case that they are the nearest heirs of Murli and that Murli died in 1942, but other facts also, which are different from the facts which they bad to establish in the earlier case, have to be established in this case, to enable the relief to be granted. 29. Now I propose to examine some of the cases cited on behalf of the Respondent. 30. In Muthish Chottiar v. N.M. Bayalu Ayyar, Nagaswami Ayyar & Co. and Ors. AIR 1944 Mad, 98 the facts were these: v. who was the do facts manager of the joint Hindu family consisting of himself, his father and his minor son and carried on the family trade as the accredited agent of the family, borrowed a debt for purposes of the family trade by the execution of a mortgage of certain properties which were described in the deed as his self acquired properties but which in fact were the joint family properties though they had been acquired in the name of V. with ulterior motives and not in assertion of a hostile claim by V. In the suit by the mortgagee to enforce the mortgage, the other members of the family viz. A and B applied by separate petitions to be impleaded as Defendants in that suit, impugning the validity of the mortgage, but claiming at the same time a right to redeem it, if valid, on the ground that the properties belonged to the joint family. These petitions were opposed by the mortgagee on the ground, inter alia, that the Petitioners were claiming a paramount title and therefore they were neither necessary nor proper parties to that suit. The Court upheld the objection and dismissed the petitions. The decree was subsequently passed against V's interest alone in the hypothecate which was found to be joint family property. The Court upheld the objection and dismissed the petitions. The decree was subsequently passed against V's interest alone in the hypothecate which was found to be joint family property. The sale of V's interest having proved insufficient to discharge the mortgage debt, the mortgagee brought a subsequent suit which was decreed against A and B for recovery of the balance by the sale of the remaining portion of the hypotheca on the basis that v. executed the mortgage on behalf of and for purposes binding on the family. It was held that: Order 2, Rule 2 did not compel a person to join in the same suit every cause of action or every claim which he had, but compelled him to include in the suit the whole of the claim arising-out of the cause of action for which the suit is brought. 31. In Haripada Mukherjee, Shebait of Kali Mata and Another Vs. Shaila Bala Devi Banerjee, AIR 1940 Cal 530 it was held that:- Where in a suit by the Plaintiff against the mortgagee, the claim of the Plaintiff is founded upon an absolute title treating the mortgagee a as trespasser and no question of the Plaintiff's right of redemption is raised, a subsequent suit by the Plaintiff on the dismissal of the prior one for redemption of the mortgage is not barred. 32. As pointed out by me, in the present instance also in the earlier suit of 1947, the question was never raised between the parties that Smt. Hawan Kunwar was not a widow holding a limited estate. 33. In Ram Lakshman Janki Ji and Ors. v. Mikund Lal Sahu and others AIR 1949 Patna, page 358 the earlier suit was brought by the Plaintiff as lessor to eject the Defendants on the allegation that they ware tenants and the tenancy had terminated on the expiry of notice to quit. The alleged lease not being made out, the suit was dismissed. The Plaintiff then brought a (sic)it for a declaration of title to and for possession of the very property by (sic)spossessing therefrom the Defendants trespassers. It was held that: The subsequent suit was no barred it was based on a cause of action different from that in the earlier suit. 34. The Plaintiff then brought a (sic)it for a declaration of title to and for possession of the very property by (sic)spossessing therefrom the Defendants trespassers. It was held that: The subsequent suit was no barred it was based on a cause of action different from that in the earlier suit. 34. In Chandra Sarup and another v. (sic)nhaiya Lal A.W.R. 1937 245 a sale deed did not correctly set forth the property sold and (sic) specification given was, inadvertent-(sic), of a wrong property. When the mistake was discovered the vendee brought a suit for rectification of the sale deed, but he subsequently amended his plaint by giving up the relief of rectification and asked instead for possession of the property really sold. The suit was dismissed on the ground that as the sale deed stood unrectified the Plaintiff was not entitled to claim possession of any property not mentioned therein. The vendeethen filed a second suit for rectification as well as for possession. The trial court in its judgment held that the Plaintiff was entitled to both the reliefs, but in the decree only possession was awarded and there was an omission to direct that the sale deed be rectified. The Defendants appealed, but the Plaintiff did not appeal against the said omission. It was held that:- The suit was not barred by Order II, Rule 2 of the Civil Procedure Code, nor was it barred by res judicata Order II, Rule 2 is directed to securing the exhaustion of the reliefs claimable on the same cause of action, and not to the inclusion in the same suit of different causes of action, even though they arise out of the same transaction. 35. 35. In Bavana Reena Saminathan and another v. Pana Lana Palaniappa, 41 Indian Appeals, page 1 where the Plaintiffs had sued upon promissory notes but the action had failed owing to a material alteration in the notes and the Plaintiffs had subsequently sued to recover a part of the consideration for which the promissory notes had been given, it was held that: Although the claims in the two actions arose out of the same transaction, they were in respect of different causes of action and that, consequently, the second action was not brought contrary to S, 34 of the Code (The Ceylon CPC 1889, the terms whereof are the same as that of the Indian CPC 1859, Order II, Rule 2) and could be maintained. 36. At page 147 of the Report, there is a passage to the following effect:- Their Lordships are of opinion, as has already been stated that the form of the claim was faulty inasmuch as the sole existing liability was under the agreement set out in the receipt. But they are also of opinion that the arrangement for the discharge of the amount found due by means of the promissory note only expressed the mode of payment contemplated and arranged for at the time. This was essentially a matter of form only, the substance of the award being that the specified amount was actually due from the Appellants to the Respondent. Through an innocent act the promissory notes have become incapable of being enforced, and the appellants have availed themselves of this and have refused to pay the notes, so that payment in the form contemplated has failed. But this does not affect the substance of the ward of the basis of the arrangement, which was liability, and therefore, it was open to the Respondent to bring an action for the unpaid balance of the sum found due, i.e., for the amount of the promissory notes. He has brought his action for an amount less than this and based it on wrong grounds, but, other hand, the Appellants omitted to rai(sic)e their true defence in their pleadings, when there would have been an opportunity for the Respondent to correct the grounds of his claim...... 37. He has brought his action for an amount less than this and based it on wrong grounds, but, other hand, the Appellants omitted to rai(sic)e their true defence in their pleadings, when there would have been an opportunity for the Respondent to correct the grounds of his claim...... 37. To sum up the position, as it appears to me, in order to succeed in the present suit, the Plaintiffs would have to establish several facts which are quite different from the several facts which they had to establish in the earlier suit. Therefore, although one of the important facts in both the suits is the same, namely, the death of Murli, there are separate parts on which the distinct in the two suits are based. The relief in the latter suit could not have been obtained on proof of the facts alleged in the former suit and vice versa. In my view, therefore, the present suit was not hit by Order II, Rule 2 of the CPC and the contention of learned Counsel for the Appellants must, therefore, fail. 38. The result is that this appeal fails and in dismissed with costs. 39. Leave to file a special appeal is asked for and is granted. Appeal dismissed.