Mahadei v. Kaliji Birajman — 1969 DIGILAW 225 (ALL)

JUDGMENT H.N. Seth, J. - This is a defendants first appeal against the judgment and decree passed by the Civil Judge, Allahabad, dated 31st January 1949, decreeing the plaintiffs' suit for possession over house No. 541-544 and 619 to 621 new comprised in old house No. 476 and for recovery of Rs. 720 as mesne profits. The plaintiffs have filed cross objection and have prayed that the decree passed by the court below relating to past mesne profits be modified and that the future and pendente lite mesne profits be awarded in their favour at the rate of Rs. 1000/- per annum as claimed by them in the plaint. 2. On 29th July, 1912 one Baijnath Saudagar, resident of Mohalla Colonelganj in the city of Allahabad executed a will. In the will he made the provision that he was to remain owner in possession of entire property, details of which were given therein, during his life time. After his death, his wife Smt. Parago was to become and remain the owner in possession of the properties as a Hindu widow. After the death of Smt. Parago, the entire estate mentioned in the will was to become a waqf and trust and five Panches from amongst the members of Kesharwani caste were to remain managers in possession thereof. The trustees were directed to meet the expenses of temple of Kaliji, Shivalaya and Thakurdwara, which had been established by the testator, to the east of Bharadwaj and were to maintain an account therefor. They were prevented from utilising the income for their own use, or spending the same for any other purpose. They were also directed to perform obsequies of the testator and his wife. The testator further directed that after the death of his wife, his daughter or daugher's sons will not have any right to.get his estate. Thereafter, the testator nominated certain persons of Kesharwani caste to be the trustees for looking after the management of the property and to incur expenses in connection with Kaliji, Chivala Mahadevji and Thakurdwara and to look after the management of the Pucca well, Phulwari (garden) and temple, etc. The will also mentioned the properties which belonged to the testator and which were being made waqf under it. These properties consisted of a number of houses, including old house No. 476 the corresponding new number of which is 541-545 and 619 to 621. 3. The will also mentioned the properties which belonged to the testator and which were being made waqf under it. These properties consisted of a number of houses, including old house No. 476 the corresponding new number of which is 541-545 and 619 to 621. 3. Smt. Parago died on 13th November, 1940. After her death dispute arose between the trustees appointed under the will of Baijnath, dated 29th July, 1912, and certain relations of Baijnath, regarding the right to the properties mentioned in that will. A suit No. 36 of 1941 was filed, on behalf of the three deities-viz. Sri Kaliji, Sri Shivaji Maharaj Birajman in the temple known as Shivala and Thakurji Maharaj Birajman in the Thakurdwara through the trustees appointed under the will, against those relations of Baijnath (who were his daughters and daughters' sons) for a declaration that the properties mentioned in the plaint was waqf for the maintenance and upkeep of the three deities and that the defendants had no concern with it. The suit was contested by the defendants and they denied due execution of the will and contended that at the time the will is said to have been executed by Baijnath, he was suffering from paralysis and other ailments and was not possessed of sound disposing mind. The will was not the outcome of free volition of L. Baijnath. They claimed that even if the alleged will was held to be genuine and valid the right of trusteeship and management of the properties in dispute did not vest in plaintiffs, but it vested in them. This suit was dismissed by the learned Civil Judge. He found that the will in dispute had not been duly executed, and that it was not shown that L. Baijnath had such a disposing mind as to understand contents of the will intelligently. The defendants were in possession of the residential house belonging to L. Baijnath, and the suit in respect of this house was barred under Section 42 of the Specific Relief Act. On a construction of the deed, he held that neither Sri Ram Kishun nor his own nominated trustee through whom the present suit had been filed had any right to file the same, with the result the suit was dismissed. On a construction of the deed, he held that neither Sri Ram Kishun nor his own nominated trustee through whom the present suit had been filed had any right to file the same, with the result the suit was dismissed. The plaintiffs went up in appeal to the High Court; which disagreed with the findings given by the learned Civil Judge, and held that when L. Baij Nath executed the will he was not deprived of his capacity to comprehend matters and that he was possessed of a sound disposing mind. The learned Judges of the High Court, thereupon, held that the will had been validly executed, but so far as the residential house was concerned, relief in respect of that house was barred by provisions of Section 42 of the Specific Relief Act, as the defendants were in its possession. Since the rest of the properties were in possession of the receiver, and not in possession of the defendants, a declaration in respect of those properties as prayed for by the plaintiffs was granted. It may be mentioned here that the residential house in question was the old house No. 476 which now corresponds with new house No. 541 to 544 and 619 to 621. Before judgment was given in that case, the plaintiffs moved an application on 5th March 1948 praying that they may be permitted to amend the plaint and to seek possession over house No. 476 and that they may be allowed time to make up the deficiency in court-fee. This application was rejected by an order dated 12th April, 1948 on the ground that the same had been presented after close of arguments in the appeal and that it was not possible to permit the amendment at that late stage. 4. The plaintiffs thereupon filed the suit from which the present first appeal arises, being suit No. 21 of 1949, for possession over house No. 541 to 544 and 619 to 621 (new) corresponding 'to old house No 476, situated at Colonelganj, Allahabad, They have also claimed that mesne profits at the rate of Rs. 1,000/- per year be awarded to them for last three years. This suit was based on the allegation that in the earlier suit No. 36 of 1941 against the daughters and their sons, validity of the will had been established. 1,000/- per year be awarded to them for last three years. This suit was based on the allegation that in the earlier suit No. 36 of 1941 against the daughters and their sons, validity of the will had been established. The suit had been decreed in respect of all the properties excepting for the residential portion of the house in respect of which declaration had been refused as possession of the same had not been sought. As the High Court had found that the plaintiffs were out of possession over these houses the present suit for possession and recovery of mesne profits has been filed. This suit was again contested by the defendants, who contended that the will dated 29th-of July, 1912 had not been duly executed and attested according to law, and was therefore invalid and unenforceable. They were daughters and daughters' sons of L. Baijnath and were entitled to the property in dispute along with other property left by him as his heirs. Even if the will was genuine the right to trusteeship and management vested in them. They further pleaded that, as plaintiffs' suit No. 36 of 1941 in connection with these houses had been dismissed by the High Court, the present suit was barred by principles of res judicata. Since the defendants had been in possession of the disputed house and had been realising its rent and the plain-tiffs having omitted to claim the relief for its possession in suit No. 36 of 1941, the present suit was barred under the provisions of Order 2, Rule 2, C. P. C. It may be pointed out, at this stage, that in the plaint the details of various houses in dispute including their rentals were mentioned. The defendants filed supplementary written statement on 28-5-1951 and did not dispute the rentals of the various houses mentioned in the plaint,. excepting for house No. 619 which was stated to be Rs. 20/- only instead of Rs. 25/- and that the rental for the portion in occupation of Sri Ram Prakash Sharma was Rs. 11/4/- instead of Rs. 9/- as shown in the plaint. 5. Neither of the parties produced any oral evidence in the case. excepting for house No. 619 which was stated to be Rs. 20/- only instead of Rs. 25/- and that the rental for the portion in occupation of Sri Ram Prakash Sharma was Rs. 11/4/- instead of Rs. 9/- as shown in the plaint. 5. Neither of the parties produced any oral evidence in the case. The trial court came to conclusion that, in view of the decision of the High Court in First Appeal No. 345 of 1948, arising from suit No. 36 of 1941, it was not open to the defendants to raise the question about due execution and validity of the will dated 29th July 1912. It also held that the present suit for possession over house No. 476 (old) and present No. 541-544 and 619 to 621 was not barred either by principles of res judicata or the provisions underlying Order 2, Rule 2, C. P. C. It, accordingly, held that the plaintiff is were entitled to possession over the house in dispute. So far as mesne profits claimed by the plaintiffs were concerned, the trial court came to the conclusion that house No. 541 to 544 portion of house No. 620 and 621 were in occupation of various tenant. No evidence was led by any party to show that defendants had realised any rent from those tenants. It was open to the plaintiffs to recover the same by filing a suit against the tenants directly. It, therefore, held that the plaintiffs could not hold the defendants responsible for the payment of mesne profits in respect of these houses. So far as house No. 619 and part of house No. 620 were concerned the defendants admitted that they were in occupation of the house. The details of the rentals mentioned in the plaint showed that the rental of house No. 619 was Rs. 25/-; but there was no evidence about the rental of house No. 620, which was said to be in occupation of the defendants. The defendants claimed that rental of house No. 619 was Rs. 20/- and not Rs. 25/-. The trial court, decreed the plaintiffs' suit for recovery of mesne profits in respect of house No. 619 only calculating it at the rate of Rs. 20/- per month. The total mesne profits for three years therefore came to Rs: 720/-. 6. The defendants claimed that rental of house No. 619 was Rs. 20/- and not Rs. 25/-. The trial court, decreed the plaintiffs' suit for recovery of mesne profits in respect of house No. 619 only calculating it at the rate of Rs. 20/- per month. The total mesne profits for three years therefore came to Rs: 720/-. 6. The defendants have now come up in first appeal before this Court contending that the court below was not at all justified in granting the decree for possession over house No. 476 (old) and mesne profits at the rate of Rs. 20'- per month. The plaintiffs have filed a cross-objection contending that the mesne profits awarded were low, and they should have been granted at the rate of Rs. 1,000/ per annum as claimed by them. 7. Sri Shanker Sahai Verma appearing for the appellants contended before us that in the earlier suit, viz. suit No. 36 of 1941, it was open to the plaintiffs-respondents to claim possession over the property in dispute. They having omitted to claim possession, the present suit is barred by Order 2, Rule 2, C. P. C. As a matter of fact, the plaintiffs made an unsuccessful attempt to get their plaint amended by including relief for possession and the High Court having rejected the amendment sought for, the plaintiffs cannot be allowed to agitate the same question by means of a separate suit. 8. Order 2, Rule 2, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, and that if a person is entitled to more than one relief in respect of the same cause of action he may sue for all or any of such reliefs, but if he omits, except with the leave of the court, to sue for all such reliefs he shall not afterwards sue for any such relief so omitted. It will therefore have to be seen whether the cause of action on the basis of which declaration was sought for in respect of house No. 476 in suit No. 36 of 1941 is the same as the cause of action for claiming possession over house No. 476 in suit No. 21 of 1949 from which the present first appeal arises. If the two causes of action are the same, the present suit would be barred, as the plaintiff did not include the relief of possession while seeking the relief for declaration in suit No. 36 of 1941. On the other hand, if the causes of action for seeking relief for declaration in suit No. 36 of 1941 and for possession in suit No. 21 of 1949 are not the same, no question of bar of Order 2, Rule 2 C.. P. C. will arise. 9. In the case of Darbo v. Kesho Rai, ILR 2 Allahabad 356 the plaintiff on the death of her husband sued Kesho Rai for a declaration for title to succeed as her husband's heir to certain property. The court of first instance dis-missed the suit on the ground that the plaintiff was not in possession of a large portion of the property and should, there-fore, have sued for possession. The plaintiff subsequently filed another suit against Kesho Rai for possession over the property. The court of first instance held that the claim was barred under the provisions of Section 7 of Act VIII of 1859. On appeal a Full Bench of the High Court consisting of four Judges held that, in so far as the appellant claimed possession of the property for which she formerly claimed a declaration of title, the present suit was clearly not barred. Section 7 of Act VIII of 1859 like Order 2, Rule 2, C. P. C. provided that every suit was to include the whole of the claim arising out of the cause of action and if a plaintiff relinquished or omitted to sue for any portion of the claim a suit for the portion shall not be entertained afterwards. It is, therefore, clear that this court was of opinion that a suit for declaration is not based on the same cause of action as a suit for possession. Again in the case of Ram Sevak Singh v. Nakched Singh, ILR 1 Allahabad 261 certain persons brought a suit for declaration in respect of their proprietary rights in certain estate and to have a gift set aside. The court trying the suit dismissed it, on the ground that it was barred by Section 42 of the Specific Relief Act, 1877. The court trying the suit dismissed it, on the ground that it was barred by Section 42 of the Specific Relief Act, 1877. The court held that the plaintiff had omitted to sue for possession although they were not in possession and were able to sue for it. These persons thereafter filed fresh suit claiming possession of the estate to the extent of their share. It was held by majority that the causes of action in the two suits being different a second suit was not barred by the provisions of Section 43 of the Civil Procedure Code. It may be mentioned that provisions of Section 43 of the Civil Procedure Code of 1877 are similar to the provisions of Order 2, rule 2 of the Code of Civil Procedure of 1908. This Full Bench case, therefore, is a clear authority for the proposition that the causes of action in a suit for declaration of title is different from the cause of action in a suit for recovery of possession. In the case of Sarsuti v. Kunj Behari La1, ILR 5 Alld. 345 this Court held that a suit for possession was not barred under Section 7 of Act VIII of 1859, even though the claim for declaration of right had been granted in an earlier suit and in which a decree for possession had not been claimed. The Full Bench relied upon the case. Darbo v. Kesho Rai and Kalidhun Chatturpadhya v. Shiba Nath, ILR 8 Cal. 483. In the case of Mohan Lal v. Bilaso, ILR 14 Alld. 512 a Division Bench of this Court observed as follows. "The short question is whether Section 43 of the Code of Civil Procedure is a bar to a suit for possession of land in relation to which the plaintiff had brought a previous suit under Section 42 of the Specific Relief Act for a declaration of title, which suit had been dismissed on the ground that the plaintiff was not in possession. We are not aware of any authorities of this Court. We have not been referred to any case in this Court in which it was even suggested that Section 43 of the Code of Civil Procedure was applicable to such a case. The point has been decided by the High Court at Calcutta in Jibunti Nath Khan v. Shiv Nath Chuckerbutty, ILR 8 Cal. We have not been referred to any case in this Court in which it was even suggested that Section 43 of the Code of Civil Procedure was applicable to such a case. The point has been decided by the High Court at Calcutta in Jibunti Nath Khan v. Shiv Nath Chuckerbutty, ILR 8 Cal. 819 and we think, rightly.. In our opinion Section 43 does not apply to such a case as this. The appeal is dismissed with costs." In the case of Ram Charan v. Tulsi Ram, A.I.R. 1929 Alld. 306 Mr. Justice Mukherji observed as follows :- "The earlier suit was brought to obtain the cancellation of the alleged deed of gift and the suit was in the nature of a declaratory one. It is true that the defendants in the earlier suit did plead that they were in possession and had been put in possession by virtue of the deed of gift by Durga Prasad, himself. .....It further follows that the defendants obtained possession either in the teeth of Durga Prasad's opposition or on his death. The question then would be, whether the fact that the defendants obtained possession would alter the original cause of action or whether it should be taken that cause of action for the two suits are one and the same. .......... Where, however, the former suit is one for pure declaration and the second suit is for possession, I am of opinion it must be taken that the two causes of action are different." 10. Similarly Mr. Justice Niamatullah observed as follows :- "The suit out of which the present appeal has arisen is based on a different cause of action and has a different object in view. The immediate desire of the plaintiff is to obtain possession of the house which is wrongfully withheld by the defendant, who, as already shown, has no title whatever. In other words the scope of the present suit is to obtain possession from a rank trespasser. The immediate desire of the plaintiff is to obtain possession of the house which is wrongfully withheld by the defendant, who, as already shown, has no title whatever. In other words the scope of the present suit is to obtain possession from a rank trespasser. No reference to the deed of gift was necessary in the plaint as part of the plaintiffs' cause of action........" As my learned brother has shown, possession of defendants 1 and 2 is not referable-to the deed of gift, but must have been obtained by them apart from it, and if it is right to hold that the defendant have no title under the gift, their possession is unwarranted and gave a cause of action to the plaintiffs if withheld from them when they demanded it........" 11. In the present case also the defendants are not claiming possession of the properties under the will. They contend that the will is invalid and they are in possession of the property in their own right. Facts of the present case are quite similar to those of the case reported in A. I. R. 1929 Allahabad 307. 12. It is well known that the words 'cause of action' mean bundle of facts which is necessary to be proved to entitle the plaintiff to a declaration and that it refers entirely to the grounds set out in the plaint as the cause of action or, in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour. It has no relation to the defence set up or to the reliefs prayed for in the plaint. Applying the aforesaid test for determining whether the causes of action in suit no. 36 of 1941 and 21 of 1949 are the same or not, we find that suit no. 36 of 1941 was based on the allegation that the defendants were threatening to take possession of the entire property of the deceased, and therefore the court should give a declaration about plaintiffs rights under the will. The allegation made in suit no. 21 of 1949, however, is that the High Court found the defendants to be in possession of house no. 476 and as such a decree for possession should be granted. The allegation made in suit no. 21 of 1949, however, is that the High Court found the defendants to be in possession of house no. 476 and as such a decree for possession should be granted. In the earlier suit all that the plaintiffs had to establish was that they had title to the property and that the defendants were threatening to interfere with their rights. In the present suit, apart from establishing the title, the plaintiff has to establish that the defendants have taken possession of the property. The allegation on the basis of which the two suits are founded are different. The facts which the plaintiffs have to prove in the two suits are also different. Under the circumstances it cannot be said that the cause of action in the two suits is the same. 13. Another test for finding out whether cause of action in the two suits is the same or not, will be to see whether on the allegations made in the earlier suit the relief claimed in the subsequent suit could also be granted. If for the grant of a relief in the subsequent suit certain other facts are to be proved and established, it cannot be said that the cause of action in the second suit will be the same as in the first suit. The first suit having been brought on the allegation that the defendants were threatening to take possession of the property no relief for possession could be granted. In our opinion, therefore. the causes of action in the two suits are different and the present suit would not be barred by the provisions of Order 2, rule 2, C. P. C. 14. Under the law, it may be possible for a plaintiff to claim more than one reliefs in respect of one cause of action, and, if in respect of that cause of action further relief is not claimed, subsequent suit may be barred under the provisions of Order 2, rule 2, C. P. C. If the two causes of action are different then merely because it was possible to join the two causes of action in one suit and to claim reliefs in respect of them in the same suit, it will not be possible to say that the cause of action became one and the same. If separate suits are brought in respect of two causes of action it cannot be said that subsequent suit based on the second cause of action will be barred by Order 2, rule 2, C. P. C. on the ground that the two causes of action could be joined in one suit. Present is a case where it was possible for the plaintiff to have sought the relief for possession on the alternative ground that in case they were found out of possession, a decree for possession may also be granted. In other words, it was possible for the plaintiffs to have joined the second cause of action with that in the earlier suit and to have claimed the relief prayed for here. But it does not mean that the two causes of action are the same, and, as such, provisions of Order 2, rule 2, C. P. C. apply. No law has been shown to us which compels a plaintiff to join two different causes of action in one suit, and on his failure to do so to bar entertainment of the second suit on the basis of second cause of action. 15. Learned counsel relied upon the case of Mohammad Hafiz v. Mirza Muhammad Zamariya, A.I.R. 1922 PC 23 and wanted to contend that in view of this, and other cases, of which reference will be made shortly, the view taken by the various cases of the Allahabad High Court mentioned earlier was wrong and stood over-ruled. In this case the mortgage deed provided that if the interest was not paid for six months the creditor should be competent to realise either the unpaid amount of interest due to him or the amount of principal and interest by bringing a suit in court without waiting for expiration of the time fixed. The plaintiff more than three years after the time fixed brought a suit for interest alone and got a decree. It was held that under the circumstances the creditor must be deemed to have relinquished his claim for further relief he having exercised the option of suing for interest alone, second suit for principal and arrears of interest was not maintainable. This case in our opinion does not support the contention of the counsel for the appellant that it has the effect of over-ruling the various Allahabad cases. This case in our opinion does not support the contention of the counsel for the appellant that it has the effect of over-ruling the various Allahabad cases. Observations made in this case do- not run counter to those made in the Allahabad cases. In this case it was possible for the plaintiffs to have obtained a relief or a decree for the principal and arrears of interest exactly on the same allegation in which the suit for part of interest alone was brought and decree obtained. The causes of action for the two suits were the same. The Privy Council further observed that "the cause of action referred to in the rule is the cause of action which gave occasion to and forms the foundation of the suit and that cause enables a man to seek for larger and wider reliefs than to which he limits his claim. He cannot afterwards seek to recover the balance 13) independent proceedings." In the case before us the cause of action for declaration mentioned in 'the earlier suit-viz. that the defendants were threatening to take possession could never have enabled the plaintiffs to obtain a wider relief for possession. Applying the test laid down by the Privy Council to the facts of this case, it cannot be said that the cause of action in suit No. 36 of 1941 was the same as in suit No. 21 of 1949. 16. The learned counsel for the appellant then relied upon the case Naba Kumar Hazra v. Radhashyam Mahish, A.I.R. 1931 PC 229. This case also laid down that relief for rent and profits which could have been prayed for in the previous suit for conveyance of properties and arising out of the same cause of action cannot be prayed for in a subsequent suit. Their Lordships of the Privy Council observed as follows :- "It is, their Lordships think equally clear that this relief could have been claimed in the previous suit .......... They evidently claimed this relief in the trial Court, but the subordinate Judge thought that as there was no appropriate prayer in the plaint he could not grant it. The respondent went to the High Court on the contention that the Subordinate Judge was wrong, and that he ought to have ordered the conveyance of the properties. They evidently claimed this relief in the trial Court, but the subordinate Judge thought that as there was no appropriate prayer in the plaint he could not grant it. The respondent went to the High Court on the contention that the Subordinate Judge was wrong, and that he ought to have ordered the conveyance of the properties. The High Court accepted this contention and granted the relief with the respondents so sought. If this was right, and their Lordships have no doubt that it was, it is obvious that the respondents could also have claimed an account of the rents and profits, and not having done so, or having abandoned the claim, they cannot seek this relief in a subsequent suit." 17. It is clear from the aforesaid quotation that their Lordships of the Privy Council were of opinion that the relief for accounts could also have been claimed on the basis of the allegations made in the earlier plaint and that being so, a subsequent suit for accounts would be barred under Order 2, Rule 2, C. P. C. This case does not in any way run counter to the earlier Full Bench decisions of the Allahabad High Court. 18. Learned counsel for the appellant then relied upon the case of Mohammad-Khalil Khan v. Mahboob Ali Mian, A.I.R. 1949 PC 78. In this case after considering the various authorities their Lordships of the Privy Council laid down certain principles for .determining Whether the case falls under Order 2, Rule 2, C. P. C. and whether the claim in a new suit is in fact founded upon a cause of action distinct from -that which was the foundation for the former suit. Their Lordships held that the cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. They held that if the evidence to support the two claims is different then the causes of action are also different. Further the cause of action has no relation whatsoever to the defence that may be set up by the defendant. Nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asked the court to arrive at a conclusion in his favour. Further the cause of action has no relation whatsoever to the defence that may be set up by the defendant. Nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asked the court to arrive at a conclusion in his favour. Applying this test we find that the facts which the plaintiff had to prove: in order to succeed in suit No. 36 of 1941 was that the defendants in that suit were: threatening to take possession, whereas the: fact which the plaintiffs have to allege in: the present suit is that the defendants are in possession and therefor the court should' pass a decree for possession. These twos facts cannot be said to be the same. It necessarily follows that the evidence in support of the two claims would also be different. It is immaterial whether in the earlier suit the defendants were able to show that they had obtained possession. In our opinion, this case instead of supporting the argument raised by the learned counsel for the appellant supports the view taken by the earlier Allahabad cases to the effect that cause of action in a suit for possession is different from the one in a suit for declaration of title. 19. Learned counsel for the appellant then placed reliance on the case of Shanker Sitaram Sontakke v. Balkrishna Sitaram Sontakke, A.I.R. 1954 SC 352. There is nothing in this case which runs counter to the Full Bench decisions of the Allahabad High Court mentioned earlier or which runs counter to the tests for determining whether causes of action in the two suits are the same or not as laid down in A. I. R. 1949 P. C. 78. 20. In the case of Radha Gobinda Roy v. Sri Nilkanth Narayan Singh, A.I.R. 1951 Patna 556, it was held that a plaintiff is not bound to seek all the remedies open to him. If he omits to sue for any particular relief arising out of a cause of action he Will at most forfeit his right to sue afterwards in respect of that relief. There is nothing in this case which would go to show that the causes of action for declaration and for recovery of possession are one and the same. If he omits to sue for any particular relief arising out of a cause of action he Will at most forfeit his right to sue afterwards in respect of that relief. There is nothing in this case which would go to show that the causes of action for declaration and for recovery of possession are one and the same. This case also does not lay down any principles for finding out whether the causes of action in the two suits are one or not, different from those laid down in A. I. R. 1949 P. C. 78. 21. Learned counsel for the appellant then relied upon the case of Subhan Ali v. Imami Begum, A.I.R. 1922 Nagpur 129. The learned Judges at page 134 observed as follows :- "But if, as is urged and we must asusume, the declaration claimed by them and given to them was one of their right to a share in the estate itself, they were bound to sue also for possession in that suit, and their failure to do so clearly precludes them from asking for it now under Rule 2, of Order II of the Civil Procedure Code and makes the -question of their right to that possession res judicata against them under Explanation IV of Section 11 of the same Code." 22. Apart from making this observation, the learned Judges have not considered the reason whether the causes of action in the two suits would be the same or not. In view of the Full Bench decisions of this Court, and after applying the principle as laid down in 1949 P. C. 78, we do not think that this case has the effect of shaking the consistent view taken by this court on this point. 23. In view of the aforesaid discussion we agree with the trial court that the present suit for possession over old house No. 476 present Nos. 541-544 and 619 to 621 is not barred by provisions of Order 2, Rule 2, C. P. C. 24. Munshi Ambika Prasad, appearing on behalf of the appellants then argued that the will of Baijnath dated 29th July, 1912 did not create any religious endowment, and even if it created one it was bad for being uncertain. He argues that as the will did not provide for vesting of endowed properties in the deities or anybody else; no religious endowment was created. He argues that as the will did not provide for vesting of endowed properties in the deities or anybody else; no religious endowment was created. He further contends that the mere provision in the will for spending the income of the properties in connection with Kaliji, Shivala Mahadevji and Thakurdwara and for looking after the management of the Pucca well, Phulwari and temple cannot be held to be proper dedication unless the deity is 'certain and it is known what proportion of the income was to be spent on each deity. He also contends that the gift for the management of pucca well and Phulwari was not for, any religious purpose and since it was not known how much of money was to be spent on religious purpose and how much on secular purpose the entire bequest will be invalid. 25. Sri R. C. Ghatak, learned counsel for the respondent has however urged that the appellant should not be permitted to raise this ground, as in his written statement he never raised the question that no valid. religious endowment was created under the will. According to him the defendants attacked the will only on the ground that it had not been executed by L. Baij Nath, and if it had been so executed, L. Baijnath was not in a sound disposing mind. The defendants merely denied due execution and attestation of the will in accordance with law and contended that it was invalid and unenforceable for this reason. They took up an alternative case that even if the will be held to be genuine and valid, the right to trusteeship and management did not vest in the plaintiffs but vested in the defendant. Further even in the grounds of appeal the objection, that the will, if its valid execution was proved did not have the effect of creating an endowment, was not raised. It is then urged that since in the previous suit No. 36 of 1941 and appeal No. 345 of 1948 this point was not taken as a ground of defence in the earlier suit, this defence is barred under the provisions of Section 11 of the Code of Civil Procedure. 26. We find substance in the objection raised by Sri Ghatak. 26. We find substance in the objection raised by Sri Ghatak. Section 11 of the Civil Procedure Code provides that-"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties." Explanation 4 provides that- "Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit." It is therefore clear that if the point about non-creation of a valid endowment sought to be raised on behalf of the appellant at this stage was a point which might and ought to have been made as a ground of defence in the earlier suit, the appellant would be barred in raising that plea. Suit No. 36 of 1941 could have been defended by the appellants on the ground that the will of Sri Baij Nath did not have the effect of creating an endowment and as such the plaintiffs of that suit have no right to maintain the suit. We find that no such plea was raised by defendants in that suit and they cannot raise this plea now in the present proceedings. Sri Ambika Prasad contended that the plea that Sri Ram Kishun and his nominated trustees had no right to bring the suit was actually raised in suit No. 36 of 1941 and was decided by the trial court. When it held that Ram Kishun or his own nominated trustees had no right to file the suit. He contended that the plea that no valid endowment has been created was implicit in it. This question was dealt with by the trial court in that suit under Issues Nos. 7, 8 and 9. A perusal of the written statement filed in that suit shows that the defendants did not take up the case that the will in question did not have the effect of creating a valid endowment. The case taken up by them was that it had not been executed by Baijnath and if execution was proved it was bad because it was brought about by coercion and undue influence and was not the outcome of free volition of L. Baijnath. The case taken up by them was that it had not been executed by Baijnath and if execution was proved it was bad because it was brought about by coercion and undue influence and was not the outcome of free volition of L. Baijnath. In the alternative a case was taken up that even if the alleged will was genuine and valid the right of trusteeship and management of the properties in dispute vested in the defendants and not in the plaintiffs. A perusal of the judgment in that case shows that the argument that prevailed with the trial court was that on construction of the terms of the will it come to the conclusion that the five trustees who filed that suit were not properly constituted and that no one trustee could arrogate to himself the function of the entire board of trustees and file that suit. This argument is very different from the argument that is now sought to be raised-viz. that the will did not have the effect of creating a valid endowment. Moreover, in the appeal against the judgment of the trial court in suit No. 36 of 1941 the High Court upheld the plaintiffs' right to maintain the suit and passed a decree in their favour. It therefore follows, by necessary implication, that the decision of the court that Rain Kishun and the other nominated trustees had no right to sue had been reversed by the High Court. Under the circumstances, we are of opinion that the defendants cannot raise the argument that the will did not have the effect of creating the valid endowment and that it was invalid on the ground of uncertainty. 27. Moreover we find that there is no sub- stance in the argument raised on behalf of the appellants that the will has not the effect of creating a valid religious endowment in as much as by its own terms it does not vest the property in any person. Under the Hindu law, only thing necessary for creation of a religious or charitable endowment is that there should be dedication for religious purposes or charity and by dedication is meant that the person dedicating divests himself of the property which is to be utilised for charitable or religious purpose indicated by him. It is not necessary that the person dedicating must provide that the property should vest in somebody. It is not necessary that the person dedicating must provide that the property should vest in somebody. It will vest in an idol or in an institution according to the circumstances in which the dedication is made. In his lectures on the Hindu Law of Religious and charitable Trusts Sri B. K. Mukerji observed as follows :- "It is undoubtedly possible for a founder to dedicate property in the form of a gift. He can also if he likes create a trust through the medium of trustees; but neither of them is necessary. As was said by Sale, J. in Bhuggobutty Prosonno v. Gooroo Prosonno, ILR 25 Cal. 112, no express words or gift either directly or indirectly in the shape of a trust are required to create a valid dedication. All that is necessary is that the religious purpose or object of the donor shall be clearly specified and that the property intended for the endowment should be set apart and dedicated to those purposes. As I have said already in the introductory lecture according to Hindu ideas, dedication is something different from secular gift which presupposes acceptance by a sentient being. According to the Thandogya Upanishad' he who presents an oblation has made an offering in all worlds, for all beings, for all souls'. A dedication really benefits the entire Universe which is pervaded by the devine spirit though estensibly it might be made in favour of a particular deity or temple. Sankalpa and Utsarga are the two religious formalities through which dedication is ordinarily effected by a pious Hindu. By Utsarga or Samarpana the founder renounces his ownership in the property dedicated, while the Sankalpa or formulary resolve indicates the purpose for which renouncement is made. It is not necessary that any particular person should accept the property dedicated as is required in a secular gift ........." (1952 Edition pp. 89-90) . 28. Similarly in the case of Dasaratharami Reddi v. D. Subba Rao, A.I.R. 1957 SC 797 at page 800 it was observed by Gajendragadkar, J. as follows :- "The principles of Hindu Law applicable to the consideration of question of dedication of property to charity are well settled. Dedication to charity need not necessarily be instrument or grant. 89-90) . 28. Similarly in the case of Dasaratharami Reddi v. D. Subba Rao, A.I.R. 1957 SC 797 at page 800 it was observed by Gajendragadkar, J. as follows :- "The principles of Hindu Law applicable to the consideration of question of dedication of property to charity are well settled. Dedication to charity need not necessarily be instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity. On the other hand, in many cases Courts have to deal with grants or gifts showing dedication of property to charity." 29. In our case the will of Sri Baijnath provides that after the death of Smt. Parago his entire estate shall become a wakf and that the same would be managed by five Panches who were described as trustees. The will further provided that the income of the properties could not be used except for the purposes mentioned therein. The recitals clearly show that Sri Baijnath en-tended that after his death his heirs will have nothing to do with the property and the same was completely dedicated to the purposes mentioned therein. If those purposes are charitable and religious purposes there is complete dedication to charity. After such a dedication has been made it may be that the property so dedicated vests in the three deities named in the will. We are, therefore, of opinion that the will of Sri Baijnath had the effect of creating an endowment of which the trustees mentioned in the will were the managers and they had the right to maintain the present suit. 30. Sri Ambika Prasad wanted to raise the argument that since the will provided for spending money for the management of the pucca well and Phulwari which was a secular purpose and as it did not specify the amount that was to be spent over the maintenance of the pucca well and Phulwari, it was at the sweet will of the trustees to spend any amount on those two properties and as such the entire bequest was invalid on account of vagueness. This point was not raised by his clients in the court below, nor was it raised in the earlier suit. This point was not raised by his clients in the court below, nor was it raised in the earlier suit. In the present suit no evidence has been led for showing that the pucca well and the Phulwari are secular properties. The well and the Phulwari may well be a part of the temples of Kaliji, Shivala Mahadevji and Thakurdwara, and they might have been constructed or set up for use by the devotees coming to these temples. In such a case they would not be secular properties but would be validly endowed properties. Since the question whether pucca well and Phulwari are secular properties or endowed properties is a question which can be answered only on evidence, the counsel for the appellant cannot be permitted to raise this point at this stage. It has not been shown that any part of the income is to be spent for the maintenance of property which is secular and not endowed, and, as such, the argument that the bequest is invalid for uncertainty is not tenable. We therefore find that the argument, now sought to be raised on behalf of the appellant, that the plaintiffs had no right to maintain the present suit. has no valid endowment was created, is with out force and is rejected. 31. Sri S. S. Verma one of the counsel appearing for the appellant argued that although originally the plaintiff had claimed a relief for possession of houses Nos. 541 to 544 and 619 to 621 he subsequently made an application for amendment of the plaint. It was mentioned that relief for possession of the property be substituted and that the defendants be ordered to vacate lower portion (ground floor) and the second and third storey of old house No. 476 (No. 620 new) in the actual occupation of the defendants and that this application was allowed by an order dated 16th October, 1952. He contends that by making this application the plaintiffs confined their relief only to that portion of house No. 476 old which was in the actual occupation of the defendants and they relinquished their claim in respect of those portions of house No. 476 old that were in occupation of the tenants and the trial court erred in decreeing the plaintiffs' suit for possession over the whole of house No. 476 old. The case that the plaintiffs had at any stage relinquished a part of their claim was not taken by the defendants. either in the court below or in the grounds of appeal filed before the High Court. Whether a party has relinquished part of its claim or not is a question of fact which has to be determined on the basis of evidence to be produced in the case. We are not prepared to permit the counsel for the appellant to raise this ground. It may also be mentioned that after the order dated 16th October, 1952 no actual amendment was carried out in the plaint. Further we find that another application dated 21st February, 1951 for amendment of the plaint was moved on behalf of the plaintiff. By this application the relief sought for in respect of all the houses in dispute was got reintroduced. This application was allowed by an order dated 19th March, 1951. In the circumstances it cannot be said that the plaintiffs relinquished or gave up any part of his claim. We, therefore find that there is no substance in any of the contentions sought to be raised on behalf of the appellants and the appeal filed by them deserves to be dismissed. 32. We will now deal with the cross-objection filed on behalf of the plaintiffs-respondents. As pointed out by us earlier the plaintiffs' suit for recovery of mesne profits in respect of that portion of house No. 619 only has been decreed, which was in actual occupation of the defendants at the rate of Rs. 20/- per month. Plaintiffs claim for mesne profits in respect of houses Nos. 541 to 544 and the portion of house No. 620 that was in occupation of the various tenants, was rejected on the ground that it had not been shown that the defendants had realised rent from the tenants. In our opinion the court below was not justified in rejecting the claim for mesne profits on the ground that the property was in occupation of the tenants and no evidence had been produced to show that the defendants have realised rents of those portions. The word mesne profit has been defined in Section 2 (12) of the Code of Civil Procedure. It means those profits which the person in wrongful possession of such property actually received or might with ordinary deligence have received therefor. The word mesne profit has been defined in Section 2 (12) of the Code of Civil Procedure. It means those profits which the person in wrongful possession of such property actually received or might with ordinary deligence have received therefor. Since the defendants were in possession of the properties in suit they could have with ordinary diligence realised the rents from the tenants. No evidence has been produced for showing that the rent could not be realised by the defendants with ordinary diligence. We, are, therefore, of opinion that the trial court was not justified in rejecting the plain tiffs' claim for recovery of mesne profits in respect of properties that were in occupation of various tenants. 33. We have now, to find actual mesne profits of the property in dispute from the material on record. In the plaint the plaintiff gave the rental value of each of the houses that were in occupation of various tenants and on the basis of that he claimed that he was entitled to mesne profits at the rate of Rs. 1,000/- per year. The defendants filed written statements but they did not deny that the rental value of the various houses as given in the plaint was wrong. They filed an additional written statement verified on 28th May, 1951. In paragraph 7 of this written statement the defendants stated as follows :- "The rent of the following houses has been wrongly shown. Rent of house No. 619 was Rs. 20/- and not Rs. 25/-, The rent of the portion in occupation of Ram Braksh Sharma is Rs. 11/4/-." 34. It will thus be seen that the defendants merely challenged that two of the rental figures mentioned in the plaint were wrong. By implication, they admitted the other figures about rental value of various houses given in the plaint as correct. A decree, calculating the mesne profits on the basis of the rental value given in the plaint could therefore he passed. The plaintiffs however filed a document which is report of the receivers in suit No. 6 of 1941 Ex. 19 for showing the rents that were payable by the various tenants to the receiver in the year 1944 and also the arrears which were due against them. The plaintiffs however filed a document which is report of the receivers in suit No. 6 of 1941 Ex. 19 for showing the rents that were payable by the various tenants to the receiver in the year 1944 and also the arrears which were due against them. A perusal of the report of the receiver shows that rental value in, respect of some of the houses was less than what was mentioned in the plaint. Since Ex. 19 is a paper filed On behalf of the plaintiffs-respondents we think that it will be safe to calculate the mesne profits treating the 'rental value of the various houses in dispute, as mentioned therein. The total, rental value of the various houses in dispute as given in the receiver's report is as follows :- House No Rent. 541 Rs. 8/- 542 Rs. 7/- 543 Rs. 6/- 544 Rs. 5/- 619 Rs. 20/- 620 Rs. 9/- " Rs. 1/50 " Rs. 4/00 " Rs. 2/50 621 Rs. 20/- ________ Rs. 83/- ________ 35. We therefore hold that the total rental realisable by the defendants was Rs. 83/-per month. Munshi Ambika Prasad thereafter contended that out of this amount the defendants must have had' to pay house tax, water tax and the cost of repairs of the properties and as such the plaintiffs could not be entitled to mesne profits calculating them at the rate of Rs. 83/- per month. We find that there is substance in this argument raised on behalf of the appellants. A deduction to the extent of 25% should be made out of rental value of the aforesaid houses for payment of house tax, water tax and repairing charges for the maintenance of the properties. It, therefore, follows that a sum of Rs. 21/- should be deducted from Rs. 83/- and mesne profits of the properties in dispute should come to Rs. 62/- per month, and this is the rate at which mesne profits for a period of three years should be calculated. The plaintiffs are therefore entitled to mesne profits amounting to Rs. 2,232/- instead of Rs. 720/- decreed by the lower court. ORDER 36. In view of the aforesaid discussion the appeal fails and is dismissed with costs. '- Cross objection is partly allowed. Plaintiffs' claim for recovery of Rs. 2,232/- as past mesne profits is decreed with proportionate costs. The plaintiffs are therefore entitled to mesne profits amounting to Rs. 2,232/- instead of Rs. 720/- decreed by the lower court. ORDER 36. In view of the aforesaid discussion the appeal fails and is dismissed with costs. '- Cross objection is partly allowed. Plaintiffs' claim for recovery of Rs. 2,232/- as past mesne profits is decreed with proportionate costs. The plaintiffs will also get pendente Ike and future mesne profits at the rate of Rs. 62/- per month.