Research › Search › Judgment

Andhra High Court · body

2007 DIGILAW 923 (AP)

Kasarapu Sujatha v. Veera Velli Veera Somaiah

2007-09-21

B.SESHASAYANA REDDY

body2007
JUDGMENT :-Unsuccessful defendants in the trial Court as well as in the lower appellate Court are the appellants in this second appeal. 2. The respondent is the plaintiff in O.S. No.169 of 1994 on the file of the Junior Civil Judge, Suryapet. He filed the suit for declaration of his title and injunction. He also sought for relief of recovery of possession of certain extent of land wherein some structures exist. It is the case of the plaintiff that he purchased the suit schedule land comprising Survey No.475 admeasuring Ac.2.05 guntas; Survey No.476 admeasuring Ac.0.26 guntas and Survey No.477 admeasuring Ac.0.26 guntas from Kotha Rami Reddy and his son Kotha Yakava Reddy under EX.A2 registered sale deed dated 5.8.1976. He got his name mutated in the revenue records as Pattedar and he paid the cist for the said land till the State Government exempted collection of cist for the agricultural land in the year 1984. The defendant No.1 along with his sister Prameela filed O.S. No.440 of 1980 against him and three others seeking partition and separate possession of their shares. Ultimately, they got the suit clismissed as withdrawn. - Few years thereafter, the defendants tried to interfere with his possession over the suit schedule land. Therefore, he filed O.S. No.168 of 1986 seeking perpetual injunction. The defendants approached the plaintiff with a proposal to settle the dispute out of Court. He agreed and withdrew the suit as not pressed on 21.1.1993. The elders failed to mediate and expressed their inability to compel the defendants for settlement out of Court. When the defendants tried to interfere with his possession on 30.8.1993, he filed a suit for declaration of title, perpetual injunction and for recovery of possession of certain extent of land wherein some structures exist. 3. The first defendant filed written statement and the second defendant, who is no other than the husband of the first defendant, filed memo adopting the written statement of first defendant. It is the case of the first defendant that the suit schedule property is her ancestral property, Kotha Rami Reddy, Kotha Malia Reddy, Kotha Somi Reddy and Kotha Anantha Reddy were brothers and they constitute a Hindu Joint Family. They possessed the suit property along with some other properties. Of the four brothers, two of them viz., Malia Reddy and Anantha Reddy went in adoption. They possessed the suit property along with some other properties. Of the four brothers, two of them viz., Malia Reddy and Anantha Reddy went in adoption. Therefore, Rami Reddy and Somi Reddy enjoyed the properties jointly. Somi Reddy died intestate about 20 years back. He was survived by a son viz., Narsi Reddy and two daughters viz., first defendant Sujatha and her sister Prameela. Narsi Reddy died as a bachelor. Rami Reddy also died leaving behind his two sons viz., Yakava Reddy and Damodar Reddy. When Yakava Reddy started moving in bad company and became prey to vices, the first defendant along with her sister Prameela filed O.S. No.440 of 1980 against Yakava Reddy and his brother Damodar Reddy and two others seeking for partition and separate possession of their shares. The plaintiff herein was one of the defendants in the said suit. Pending the suit, the plaintiffs therein and their cousins who were the defendants I and 2 in the said suit entered into a compromise.' In the said compromise, Ac.1.20 guntas in two bits, one bit admeasuring Ac.1.00 guntas and another bit admeasuring Ac.0.20 guntas allotted to the first defendant. The first bit of Ac.I.OO is bounded by : North: Land of S. Narasimha Reddy and S. Janardhan Reddy; South : Land of plaintiff; East : Land of Plaintiff and West: PWD Road. The second bit of Ac.0.20 guntas is bounded by : North : Land of S. Narasimha Reddy and S. Janardhan Reddy; South : Land of plaintiff; East : PWD Road, and West : Land of Pathepuram Mallaiah. Subsequent to the settlement, the defendants herein did not pursue the said suit and consequently, the said suit came to be dismissed for default. The defendants constructed, two room residential house over an extent of 12 x 6 Sq. yards in Ac.1.00 of land. Apart from putting up constructions over an area of 12 x 6 Sq. yards, they also raised green gram and black gram crops in a portion of the land. The Gram Panchayat after verifying the ownership of the first defendant entered the name of the first defendant in the Gram Panchayat records as owner of the house existing on the land. The plaintiff filed O.S. No.168 of 1986 seeking for injunction and subsequently withdrew the same. The Gram Panchayat after verifying the ownership of the first defendant entered the name of the first defendant in the Gram Panchayat records as owner of the house existing on the land. The plaintiff filed O.S. No.168 of 1986 seeking for injunction and subsequently withdrew the same. The withdrawal of the said suit indicates of plaintiff being not in possession of Ac.1.20 guntas claimed by the defendants. 4. The trial Court settled the following issues for trial : (1) Whether the plaintiff is the owner and possessor of the suit land ? (2) Whether the plaintiff is entitled for perpetual injunction? (3) Whether the plaintiff is entitled for restoration of possession in case if he is out of possession over the suit land on the date of filing of the suit or subsequent to it ? (4) Whether the Sale Deed No.1431/76, dated 5.8.1976 is true and genuine? (5) Whether the subject-matter of the suit was already decided by competent Court and the principles of res judicata is applicable ? (6) To what relief? 5. On behalf of the plaintiff, he got himself examined as PW.1 and examined two more witnesses viz., Kanneboina Komaraiah and Panikar Somaiah as PW s.2 and 3 and marked 13 documents as Exs.Al to A13. On behalf of the defendants, 2nd defendant got himself examined as DW.1 and examined San kepa by Janardhan Reddy and Rathapuram Somaiah as DWs.2 and 3 and marked 8 documents as Exs.B 1 to B8. 6. The trial Court, on considering the evidence brought on record and on hearing Counsel for the parties, came to the conclusion that the plaintiff is the owner of the suit schedule land and he is entitled for injunction and also for recovery of possession over which some structures exist. Accordingly, suit came to be decreed, by judgment dated 18.1.1999. 7. The defendants assai led the judgment and decree dated 18.1.1999 passed in O.S. No.169 of 1994 by filing O.S. No.2 of 1999 on the file of the Senior Civil Judge, Suryapet. It was contended before the lower appellate Court that the plaintiff failed to prove his title over the suit schedule land and therefore, he was not entitled for permanent injunction. It was also contended that since the earlier suit filed by the plaintiff for injunction ended in dismissal as withdrawn, the subsequent suit is hit by the principles of res judicata. 8. It was also contended that since the earlier suit filed by the plaintiff for injunction ended in dismissal as withdrawn, the subsequent suit is hit by the principles of res judicata. 8. The lower appellate Court fOID1ulated the following points for determination: (1) Whether the Sale Deed No.l,431/76 dated 5.8.1976 is true and genuine? (2) Whether the plaintiff is the owner and possessor of the suit land ? And entitled for a permanent injunction ? (3) Whether the plaintiff is entitled for restoration of possession in case if he is out of possession over the suit land on the date of filing of the suit or subsequent thereto ? (4) Whether the principles of res judicata are applicable to the suit ? (5) Whether the judgment and decree of the trial Court are illegal and if so the same is liable to be set aside ? (6) To what result? 9. The lower appellate Court, on reappraisal of the evidence brought on record and on hearing Counsel for the parties, came to the conclusion that the plaintiff established his title over the suit schedule land and also possession except to the extent of structures exist therein. A further findings has been given that the subsequent suit of the plaintiff is not hit by the principle of res judicata since the relief sought for in the earlier suit and the subsequent suit is not one and the same. The earlier suit is being only suit for injuction and the subsequent suit is being suit for declaration of title as well as injunction and for recovery of possession. With the above observations, the lower appellate Court dismissed the appeal, by judgment dated 31.7.2002. The judgment passed by the lower appellate Court is under challenge in this second appeal. 10. The second appeal came to be admitted on 18.11.2002 on the following \ substantial question of law : "Whether the : withdrawal of the suit as No.168 of 1986 filed for perpetual injunction earlier by the plaintiff without the leave of the Court would bar the present suit O.S. No.169 of 1994 or not ?" 11. Heard learned Counsel appearing for the appellants/defendants and learned Counsel appearing for the respondent/ plaintiff. 12. Learned Counsel appearing for the appellants/defendants submits that the subsequent suit O.S. No.169 of 1994 is barred by limitation and therefore, the respondent/plaintiff is not entitled to claim any relief. Heard learned Counsel appearing for the appellants/defendants and learned Counsel appearing for the respondent/ plaintiff. 12. Learned Counsel appearing for the appellants/defendants submits that the subsequent suit O.S. No.169 of 1994 is barred by limitation and therefore, the respondent/plaintiff is not entitled to claim any relief. A further submission has been made that subject-matter in earlier suit O.S. No.168 of 1986 and in the subsequent suit O.S. No.169 of 1994 is one and the same and that in view of the earlier suit being dismissed as withdrawn by the respondent/plaintiff, he cannot claim any relief in respect of the selfsame subject-matter in the subsequent suit. In support of his submissions, reliance has been placed on the following decisions: (1) T. Ponnirula Pillai v. Western India Oil Distributing Co. Ltd., AIR (33) 1946 Mad 470. (2) Jajala Narayana Reddy v. K. Mohan Reddy and another, 2004 (6) ALD 694. (3) Tummalapalli Anasuya v. Yenduri Parvathi and others, 2006 (4) ALD 266. (4) Jonnala Swya Reddy and another v. Tityyagura Srillivasa Reddy and others, 2003 (6) ALD 513 = AIR 2004 AP 222 . 13. In T. Ponirrula Pillai v. Western India Oil Distributing Co. Ltd. (supra), the Madras High Court held that defendant who prefers a counter claim is in the position of the plaintiff. When he allowed the decree to be passed declaring his set off to withdraw without permission to institute fresh proceedings, he could not institute a fresh suit. For better understanding" the facts therein are required to be narrated, and they are thus : The plaintiff was the commission agent of a company for the sale of petrol and fuel oil. He was also a share-holder in the same company and in 1937 had failed to pay his final call due in respect of his shares. Hence, the company forfeited his shares and sued him in the Bombay High Court to recover a certain sum of money as the amount of his final call. On 15th November, 1937 the agent filed a written statement claiming set off, against his liability for calls, what was due to him by way of commission trom. 30th June, 1935. The parties agreed to a settlement of this suit. On 15th November, 1937 the agent filed a written statement claiming set off, against his liability for calls, what was due to him by way of commission trom. 30th June, 1935. The parties agreed to a settlement of this suit. The relevant clause in the agreement was 'Declare that the claims of set off under various heads by the defendant do stand withdrawn with liberty to be settled and disposed of by mutual consent of parties out of Court.' A decree was drawn in terms of the agreement but the clause about the withdrawal of set off therein read as follows: 'Doth further order that the claims of set off under various heads made by the defendant be and they are hereby allowed to be withdrawn.' In a subsequent suit for an account of commission by the agent : It has been held that even if the decree were deemea to have incorporated the whole of clause of the agreement of compromise, viz., 'with liberty to be settled and disposed of by mutual consent of parties out of Court,' the plaintiff could not enforce his claims to set off. According to Order 8 Rule 6 the written statement filed by the agent in the Bombay suit had the effect of a plaint in the cross suit so as to enable the Court to pronounce a final judgment in respect of both the claim and the set off. Hence, he should have obtained Court's permission to institute a fresh suit under Order 23 Rule 1 when he withdrew his claim to set off if he had a mind to institute legal proceedings should the negotiations for settlement outside the Court fail. 14. In Jajala Narayana Reddy v. K. Mohan Reddy and another (supra), a Single Judge of this Court set aside the direction given in favour of the plaintiff while dismissing the suit as withdrawn as to demolition of wall. The facts in the cited case are : Suit was filed by the plaintiff therein for the relief of perpetual injunction against the defendants. He filed LA. No.38 of 2004 seeking permission to withdraw the suit with liberty to file fresh suit on the same cause of action or any cause of action that may arise after the date of Commissioner's report viz., 10.7.2003. The defendants filed a counter-affidavit resisting the application. He filed LA. No.38 of 2004 seeking permission to withdraw the suit with liberty to file fresh suit on the same cause of action or any cause of action that may arise after the date of Commissioner's report viz., 10.7.2003. The defendants filed a counter-affidavit resisting the application. According to the defendants, the plaintiff has undertaken certain constructions in the suit schedule property on the strength of an order of temporary injunction obtained in the suit and he cannot be permitted to withdraw the suit abruptly. They also pleaded that they incurred an expenditure of about Rs.20,000/- to defend themselves and that the plaintiff be required to make good the same. The trial Court through its order dated 21. 7 .2004 directed the defendants to remove the wall said to have been constructed by the plaintiff during the pendency of the suit. It also refused the leave to the plaintiff to file a fresh suit on t11e same cause of action; and ultimately dismissed the suit as withdrawn with costs. Feeling aggrieved by the observations made and conditions imposed by the trial Court, the plaintiff filed the CRP. For better appreciation Paras 8 to 10 of the cited judgment need to be noted and they are : "8. Reverting to the facts of the case, it is evident that the suit in question is still at the stage of trial. The purport of the precedents referred to above, is that as long as a decree is not passed in a suit, the right of a plaintiff to withdraw the suit is almost unfettered. If the plaintiff has secured any benefit in the form of interim orders, before withdrawing the suit, the trial Court can take the same into account and pass appropriate orders. So far as reserving the liberty of the plaintiff is concerned, it is with reference to the subject-matter and not cause of action. This assumes significance in the suits for perpetual injunction. The reason is that the cause of action in a suit for preventive remedy does not survive once the suit is withdrawn. It shall always be open to the plaintiff in such suits, to file fresh suit on the basis of subsequent cause of action. This assumes significance in the suits for perpetual injunction. The reason is that the cause of action in a suit for preventive remedy does not survive once the suit is withdrawn. It shall always be open to the plaintiff in such suits, to file fresh suit on the basis of subsequent cause of action. The very fact that the plaintiff has chosen to withdraw the suit for injunction discloses that there did not exist any valid cause of action pleaded by him in it while filling. A cause of action, which did not either exist or survive in an earlier suit, cannot constitute the basis for the subsequent suit. 9. It is in this background that the three directions issued by the Trial Court viz., direction to the respondents to remove the wall, award of costs and rejection of liberty to the plaintiff to file fresh suit on the same cause of action, need to be considered. The direction to the respondents to remove the wall is almost meaningless. It is not known whether the trial Court intended to issue such direction to the petitioner or the respondents herein. Either way, it is outside the scope of the application filed under Order XXIII Rule I CPC. The suit was for injunction simplicitor. With the withdrawal of the suit, the temporary injunction granted in favour of the petitioner gets dissolved and he will no longer be entitled to protect such temporary injunction. The parties have to work out their remedies as per their entitlement. 10. Learned Counsel for the petitioner does not make much of the grievance as to the costs. He states that the decree that was drawn pursuant to the order under revision did not reflect any costs. Hence, it is not necessary to delve into the same. So far as the last aspect is concerned, the very request of the petitioner that he be permitted to reserve the liberty to file a fresh suit on the same cause of action is opposed to Rule I of Order XXIII CPC. What is permitted to be reserved under sub-rule (3) is the liberty to file a suit in respect of the same subject-matter and not on the same cause of action. Added to that, the cause of action in a suit for perpetual injunction, as observed earlier, cannot spill over the withdrawal of the suit. What is permitted to be reserved under sub-rule (3) is the liberty to file a suit in respect of the same subject-matter and not on the same cause of action. Added to that, the cause of action in a suit for perpetual injunction, as observed earlier, cannot spill over the withdrawal of the suit. Hence, the permission accorded to the petitioner for withdrawing the suit has to be treated as the one, without prejudice to the liberty of the petitioner herein to file a suit for the same subject-matter." 15. In Tummalapalli Anasuya v. Yenduri Parvathi and others (supra), the plaintiff therein filed a suit for declaration of title in respect of the suit schedule property. The very same property was one of the items of the schedule in the earlier suit being O.S. No.84 of 1992 for the relief of partition. The plaintiff figured as first defendant in the partition suit. A preliminary decree was passed on 13.11.1998. The plaintiff filed O.S. No.12 of 2002 on 12.11.2001. The first defendant entered appearance and filed LA. No.757 of 2003 with a prayer to try the issue of limitation as a preliminary issue. The contention was that she filed the suit for partition, way back in the year 1992, in respect of the subject-matter in O.S. No.12 of 2002 and certain other property, and that the plaintiff was very much a party to that suit. She pleaded that with the inclusion of the said item in O.S. No.84 of 1992, the title of the plaintiff stood challenged; the limitation for seeking a declaratory relief expired in the year 1995, and that the present suit was barred by limitation. The trial Court allowed LA. on 28.8.2003 and considered the same as a preliminary issue. It recorded a finding that the suit was barred by limitation and dismissed O.S. No.12 of 2002 on 5.7.2004. CMA No.28 of 2004 filed the plaintiff did not yield any fruitful result. Therefore, he filed CMSA No.15 of 2006. This Court while dismissing the CMSA observed as under : "It is a matter of record that the property in respect of which, the appellant seeks declaratory relief in O.S. No.12 of 2002, was one of the items in O.S. No.84 of 1992, and that the appellant herein is defendant No.1 in that suit. This Court while dismissing the CMSA observed as under : "It is a matter of record that the property in respect of which, the appellant seeks declaratory relief in O.S. No.12 of 2002, was one of the items in O.S. No.84 of 1992, and that the appellant herein is defendant No.1 in that suit. In a partition suit, one of the important steps taken by the Court is, to ascertain the properties that are available for partition. In that process, it 'undertakes the adjudication of title, vis-a-vis the said properties. The appellant did claim ownership, in respect of the said item, and it was adjudicated by the trial Court. At any rate, the inclusion of the property and claim for partition, vis-a-vis that item, brings about a change of exclusive title of the appellant. Therefore, the limitation can be said to have commenced with the presentation of O.S. No.84 of 1992. The present suit was liable to be dismissed, not only on the ground of limitation, but also on the ground of res judicata. Viewed from any angle, the filing of O.S. No.12 of 2002 cannot be sustained, and the trial Court has taken appropriate step in deciding the issue." 16. In Jonnala Sura Reddy and another v. Tityyagura Srinivasa Reddy and others (supra), a Single Judge of this Court held that when earlier suit filed by the plaintiff withdrawn without seeking permission to file fresh suit, subsequent suit for the same relief is barred. The facts in the cited case are as follows : The plaintiff filed O.S. No.14 of 1984 on the file of Court of II Additional Munsif Magistrate, Guntur, on 18.1.1984 against the appellants seeking an injunction restraining them from interfering with his possession over the plaint schedule property alleging that on 13.5.1964 they tried to interfere with his possession over the plaint schedule property and filed IA. No.42 of 1984 in that suit under order 39 Rule I of the Code of Civil Procedure seeking an interim injunction against the appellants during pendency of the said suit. The Court ordered notices to the appellants without granting ex parte interim injunction in favour of the plaintiff. No.42 of 1984 in that suit under order 39 Rule I of the Code of Civil Procedure seeking an interim injunction against the appellants during pendency of the said suit. The Court ordered notices to the appellants without granting ex parte interim injunction in favour of the plaintiff. Thereafter, the plaintiff, Somireddy filed the present suit O.S. No.16 of 1984 for the same relief and on the same cause of action alleging that on 13.5.1964 the appellants tried to interfere with his possession over the plaint schedule property and sought for permanent injunction restraining the appellants from interfering with his possession, and filed an application seeking interim injunction pending the suit against the appellants. An ex parte injunction was granted in his favour. an 19.1.1984 plaintiff filed a memo in O.S. No.14 of 1984 withdrawing the suit. The learned District Munsif by his order dated 19.1.1984 advanced the said suit and dismissed it as not pressed. In this suit the contentions of the appellants is that the suit is not maintainable in view of Order 23 Rule I CPC and in any event since plaintiff did not come to Court with clean hands he is not entitled to the injunction sought for. The trial Court decreed the suit and the lower appellate Court confirmed the same. Thereupon the defendants filed second appeal. This Court allowed the second appeal on the ground that the plaintiff withdrew the earlier suit without reserving the liberty to file fresh suit on the same cause of action. For better appreciation, I may refer Paras 6 to 10 of the cited decision, and they are thus: "6. The plaint in this case was presented on 19.1.1984. Exs.B.28 and B.29 show that the earlier suit O.S. No.l4 of 1984 was withdrawn on 19.1.1984. So, it is clear that withdrawal of suit O.S. No.l4 of 1984 and filing of this suit took place on the same day, i.e., on 19.1.1984. Even assuming that this suit was filed only after the order permitting withdrawal of O.S. No.14 of 1984 was passed, this suit is clearly barred by Rule I of Order 23 CPC because the plaintiff, while withdrawing O.S. No.14 of 1984 did not seek permission of the Court to file a fresh suit on the same cause of action. 7. Even assuming that this suit was filed only after the order permitting withdrawal of O.S. No.14 of 1984 was passed, this suit is clearly barred by Rule I of Order 23 CPC because the plaintiff, while withdrawing O.S. No.14 of 1984 did not seek permission of the Court to file a fresh suit on the same cause of action. 7. Since there is not even a whisper about the plaintiff filing a suit earlier in the plaint in this case, it is clear that plaintiff did not come to the Court with clean hands. It is well known that injunction which is an equitable relief would not be granted to a person who does not come to the Court with clean hands, and who is guilty of suppression of facts. 8. The facts in Satish Khosla v. Eli Lilly Ranbaxy Ltd., 1998 (71) DLT I (DB), an exactly similar to the facts in this case. In that case also plaintiff filed a second suit for injunction when in the earlier suit filed by it no interim injunction was granted. A Division Bench of Delhi High Court held that, filing of a second suit without making reference to the earlier suit, amounts to playing fraud to gain advantage and is but an attempt to overreach the Court. 9. Learned Counsel for the respondent relying on Mis. Vizag Medical Stores, Visakhapatnam v. M/s. Bharat Heavy Plate and Vessels Ltd., Visakhapatnam, 2002 (3) ALD 674 = 2002 (1) An.WR 350 (AP) = 2002 AIHC 1552, contends that this suit is maintainable. I am not able to agree with the said contention. In that case an application seeking to withdraw the suit with permission to file fresh suit was filed. Permission to withdraw the suit was given but permission to file a fresh suit was refused by the trial Court. When that order was challenged before this Court, a learned Single Judge held that application under Rule 1 of Order 23 cannot be dissected into two separate individual portions and a relief of permission to withdraw the suit without granting relief to file a fresh suit cannot be granted. The question whether a second suit can be filed without obtaining the leave of Court while seeking permission to withdraw the earlier suit was not considered in that case. 10. The question whether a second suit can be filed without obtaining the leave of Court while seeking permission to withdraw the earlier suit was not considered in that case. 10. In the present case, there was not even a prayer, in the memo filed in O.S. No.14 of 1984, for permission to file fresh suit. Therefore, the question of the Court granting permission to file afresh suit, when the plaintiff did not seek such relief does not arise. The conduct of the plaintiff is also apparent from the facts of this case. For the reason that plaintiff did not come to Court with clean hands he is not entitled to the injunction." 17. Learned Counsel appearing for the respondent/plaintiff submits that the earlier suit was for bare injunction and as soon as the defendants disputed the title in the earlier suit for injunction, the said suit came to be withdrawn because of the defendants therein came up for settlement out of the Court and subsequently the mediators expressed their inability to convince the defendants. His further contention is that subsequent to the dismissal of the earlier suit, the defendants tried to encroach on the property on 30.8.1993, the plaintiff filed the suit for declaration of title, injunction and also for recovery of the possession to the extent over which structures exist. In a way he submits that the cause of action for filing the subsequent suit is quite different. Therefore, the subsequent suit is not barred either under Order 2 Rule 2 CPC or under Order 23 Rule 1 CPC. In support of his submissions, reliance has been placed on the following decisions. (1) Dina Dinshaw v. Dinshaw Ardeshir, AIR 1970 Born. 341. (2) Vallabh Das v. Madanlal, AIR 1970 SC 987 . '- (3) Ramachander Naik v. Linga Ramachanderiah, AIR 1971 AP 395 . (4) Shri Inacio Martins v. Narayan Hari Naik and others, AIR 1993 SC 1756 . (5) Krishna Ceramics and Refractories v. Dr. v.s. Krishna Ceramics and Potteries, 2000 (5) ALO 1 (DB). (6) Smt. Nirmala v. Hari Singh, AIR 2001 HP 1 . (7) Mahadkar Agency and another v. Padmakar Achanna Shetty, AIR 2003 Born. 136. 18. In Dina Dinshaw v. Dinshaw Ardeshir (supra), the Bombay High Court held that to attract Order 23 Rule 1(3) CPC, subject-matter of the suit withdrawn and fresh suit must be the same. (6) Smt. Nirmala v. Hari Singh, AIR 2001 HP 1 . (7) Mahadkar Agency and another v. Padmakar Achanna Shetty, AIR 2003 Born. 136. 18. In Dina Dinshaw v. Dinshaw Ardeshir (supra), the Bombay High Court held that to attract Order 23 Rule 1(3) CPC, subject-matter of the suit withdrawn and fresh suit must be the same. Unless the relief claimed in the previous suit is the same and/or alike as the relief claimed in the subsequent suit, the subject-matters of the two litigations must be held to be different. 19. In Vallabh Das v. Madanlal (supra), the Supreme Court while interpreting Order 23 Rule 1 CPC, held that the 'subjectmatter' in Order 23 Rule 1 means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. Where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit. Para 5 of the cited judgment needs to be noted and it is thus : "5. RULE I Order 23, Code of Civil Procedure entitles Courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of the subject-matter of that suit on such terms as it thinks fit. The term imposed on the plaintiff in the previous suit was that before bringing a fresh suit on the same cause of action, he must pay the costs of the defendants. Therefore we have to see whether that condition governs the institution of the present suit. For deciding that question we have to see whether the suit from which this appeal arises is in respect of the same subject-matter that was in litigation in the previous suit. The expression "subject-matter" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. The expression "subject-matter" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the previous suit. Now coming to the case before us in the first suit Dr. Madan Lal was seeking to enforce his right to partition and separate possession. In the present suit he seeks to get possession of the suit properties from a trespasser on the basis of his title. In the first suit the cause of action was the division of the status between Dr. Madan Lal and his adoptive father and the relief claimed was the conversion of joint possession into separate possession. In the present suit the plaintiff is seeking possession of the suit properties from a trespasser. In the first case his cause of action arose on the day he got separated from his family. In the present suit the cause of action, namely, the serious of transactions which formed the basis of his title to the suit properties, arose on the death of his adoptive father and mother. It is true that both in the previous suit as well as in the present suit the factum and validity of adoption of Dr. Madan Lal came up for decision. But that adoption was not the cause of action in the first nor is it the cause of action in the present suit. It was merely an antecedent event which conferred certain rights on him. Merely identity of some of the issues in the two suits do not bring about an identity of the subject-matter in the two suits. As observed in Rukma Bai v. Mahadeo Narayan, ILR 42 Born 155 = AIR 1917 Born 1 O( 1), the expression "subject-matter" in Order 23 Rule 1, Code of Civil Procedure means the series of acts or transactions alleged to exist giving rise to the relief claimed. In other words "subject-matter" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. In other words "subject-matter" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. We accept as correct the observations of Wallis, c., in Singa Reddi v. Subba Reddi, ILR 39 Mad. 987 = AIR 1918 Mad 512 (2) (FE), that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the fIrst suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit. . 20. In Ramachander Naik v. Linga Ramachanderiah (supra), a Division Bench of this Court while interpreting Order 2 Rule 2 CPC, held that where the previous suit was based on the plaintiffs right to possession of land as a protected tenant, a subsequent suit for declaration that he is a Shaikmidar entitled to permanent occupancy rights being based on an independent cause of action, is not barred by Order 2 Rule 2 CPC. 21. In Shri Inacio Martins v. Narayana Hari Naik (supra), the Supreme Court held that dismissal of earlier suit for injunction on technical ground does not bar the plaintiff under Order 2 Rule 2(3) CPC to file a subsequent suit for declaration of title and recovery of possession. In the cited decision, former suit filed by the plaintiff for declaration that he was lessee and for injunction restraining defendants from interfering with his possession of suit property. The said suit was dismissed on technical ground that plaintiff was no more in possession of suit property and a suit for mere declaration cannot lie. The plaintiff •filed subsequent suit seeking for declaration as tenant and for recovery of possession. The Supreme Court held that subsequent suit is not barred by the principle of res judicata, since the question of status of plaintiff as lessee was not decided in earlier suit. Subsequent suit also not barred by Order 2 Rule 2(3) CPC since causes of action were different i.e., earlier suit was based on apprehension that defendants were likely to forcibly dispossess plaintiff while cause of action in subsequent suit was that plaintiff was illegally and forcibly dispossessed and claimed restoration of possession. 22. Subsequent suit also not barred by Order 2 Rule 2(3) CPC since causes of action were different i.e., earlier suit was based on apprehension that defendants were likely to forcibly dispossess plaintiff while cause of action in subsequent suit was that plaintiff was illegally and forcibly dispossessed and claimed restoration of possession. 22. In Krishna Ceramics and Refractories v. Dr. v.s. Krishna Ceramics and Potteries (supra), a Division Bench of this Court held that subsequent suit for possession and damages following the decree for specific performance for execution of lease deed and its registration is not barred under Order 2 Rule 2 CPC on the ground that the plaintiff filed earlier three suits, when the cause of action therein are different from those in the present suit. 23. In Smt. Niramala v. Hari Singh (supra), the Himachal Pradesh High Court held that subsequent suit is not barred if it is based on different cause of action though in respect of the same property. In other words, a suit on different cause of action is not barred under this rule even though the suit may be in respect of the same property. 24. In Mahadkar Agency v. Padmakar Achanna Shetty (supra), the Bombay High Court held that leave to file a fresh suit on new cause of action is not necessary once the party wants to file a suit on the basis of a cause of action different from the one in the suit which is to be withdrawn, then the question of leave or liberty to file a fresh suit does not arise at all. 25. In Kunjan Nair Sivaraman Nair v. Narayanan Nair, (2004) 3 SCC 277 = 2004 AILD 338 (sq, the Supreme Court held the requirement for attraction of Order 2 Rule 2(3) CPC, it must be shown that the second suit is based on identical cause of action. Paras 16 to 19 of the cited judgment need to be noted and they are thus : 16. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in "cause of action". 17. In Halsbury's Laws of England (4th Edition) it has been stated as follows: '''Cause of action' has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action." 18. As observed by the Privy Council in Payana Reena Saminathan v. Pana Lana Palaniappa, (1914) 41 IA 142 = 18 CWN 617, the rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transaction. One great criterion is, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit whether the same evidence will maintain both actions. (See Mohd. Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78 = (1948) 2 MU 318 = 75 IA 121). 19. In Inacio Marlins v. Narayan Hari Naik, (1993) 3 SCC 123 , an almost identical question arose. In that case, the plaintiff had prayed for protection of his possession by a prohibitory injunction. That prayer was refused. Subsequent suit was for recovery of possession. 19. In Inacio Marlins v. Narayan Hari Naik, (1993) 3 SCC 123 , an almost identical question arose. In that case, the plaintiff had prayed for protection of his possession by a prohibitory injunction. That prayer was refused. Subsequent suit was for recovery of possession. This Court held that in the former suit the only relief that the Court could have granted was in regard to the declaration sought for which the Court could not have granted in view of the provisions of the Specific Relief Act. The cause of action for the first suit was based on the apprehension about likely forcible dispossession. The cause of action of the suit was not on the premises that he had, in fact, been illegally and forcefully dispossessed and needed the Courts' assistance for restoration of possession. In that background this Court held that subsequent suit was based on a distinct cause of action not found in or formed the subject-matter of the former suit. The ratio of the decision has full application to the facts of the present case." 26. Keeping in view the proposition of law laid down in the above referred cases, it is required to be examined in this case whether withdrawal of earlier suit O.S. No.168 of 1986 filed by the plaintiff would bar him to file the subsequent suit O.S. No.169 of 1994. 27. The facts which are not in dispute are: The first appellant/first defendant along with her sister Premeela filed a suit O.S. No.440 of 1980 on the file of the Junior Civil Judge, Suryapet, seeking partition and separate possession of their share. The respondent/plaintiff was one of the defendants in the said suit. He was impleaded as one of the defendants in the said suit since he was a purchaser of the suit schedule property under Ex.A2 registered sale deed dated 5.8.1976 executed by Kotha Rami Reddy and Kotha Yakava Reddy. The first appellant/first defendant, who was one of the plaintiffs in the said suit, did not pursue the suit and consequently the suit ended in dismissal. Of course, she came forward with an explanation that pending the suit some settlement came to be arrived at between her and her sister on one side and her cousins on other side and therefore, she did not pursue the suit further. Of course, she came forward with an explanation that pending the suit some settlement came to be arrived at between her and her sister on one side and her cousins on other side and therefore, she did not pursue the suit further. She did not choose to enter into the box to spell her version nor examined anyone connected with the settlement of disputes between them. Both the trial Court as well as the lower appellate Court on thorough discussion of the evidence brought on record came to the conclusion that Ex.A2 registered sale deed is valid and the appellants/defendants failed to establish any settlement pending disposal of O.S. No.440 of 1980 and allotment of Ac.1.20 guntas out of the suit schedule property towards their share. Since the trial Court and the lower appellate Court recorded concurrent findings on these aspects, they are not required to be interfered with in this second appeal. 28. It is contended by the learned Counsel appearing for the appellants/defendants that the suit filed by the respondent/plaintiff is barred by limitation since the same was filed beyond the period of limitation and therefore, the same is liable to be dismissed in limni. Per contra, the learned Counsel appearing for the respondent/plaintiff submits that the appellants/defendants did not take the plea of limitation either in the trial Court or in the lower appellate Court and therefore, they cannot be permitted to canvass the issue of limitation in the second appeal. 29. Without going deep into that issue, it is suffice to say that the appellants/ defendants having impleaded the respondent/plaintiff as one of the defendants in the suit filed by them seeking partition, did not get the suit adjudicated on merits instead they got the suit dismissed as withdrawn. When the respondent/plaintiff filed the earlier suit being O.S No.168 of 1986 seeking for injunction simplicitor, the appellants/ defendants pleaded settlement between the members of their family and allotment of Ac.l.20 guntas out of the suit land to the share of the first appellant/ first defendant. The first defendant filed written statement in the year 1986. It can be said that the appellants/defendants denied the title for the first time in the year 1986. Under Article 65 of the Limitation Act, limitation for filing the suit for possession of immovable property or any interest therein based on title is 12 years. The first defendant filed written statement in the year 1986. It can be said that the appellants/defendants denied the title for the first time in the year 1986. Under Article 65 of the Limitation Act, limitation for filing the suit for possession of immovable property or any interest therein based on title is 12 years. The respondent/plaintiff filed the suit in the year 1994 seeking for declaration of title, injunction and for recovery of possession in respect of the extent wherein structures exist. The respondent/ plaintiff specifically pleaded that in the month of September, 1993, the appellants/defendants attempted to trespass over the suit schedule land. Even taking the denial of title of the respondent/plaintiff in the written statement filed by the appellants/defendants in O.S. No.168 of 1986, the subsequent suit of the respondent/plaintiff is within the limitation as provided under Article 65 of the Limitation Act, 1963. Therefore, the contention of the learned Counsel appearing for the appellants/defendants that the suit of the respondent/plaintiff is barred by limitation has no substance. 30. Order 23 Rule 1 CPC reads as under: Withdrawal and Abandonment of Suits 1. Withdrawal of suit or abandonment of part of claim :-{l) At any time after the institution of suit, the plaintiff may as against a1l or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules I to 14 of Order XXXII extend, neither the suit nor any part of the claim sha1l be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Whether the Court is satisfied- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter or a suit or part of a claim. (3) Whether the Court is satisfied- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter or a suit or part of a claim. It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (I), or to withdraw, under subrule (3), any suit or part of a claim, without the consent of the other plaintiffs." 31. The phrase subject-matter as contained in sub-rule (3) has caused some confusion. But, it has now been clarified that unless the relief claimed in the previous suit is the same and/or alike as the relief claimed in the subsequent suit, subject-matter of the two litigations must be held to be different. Vide the decision of Madras High Court in the case of Singa Reddi v. Subba Reddi, ILR 39 Mad. 987 = AIR 1917 Mad. 512(2)(FB). The Supreme Court on Vallabh Dasv. Dr. Madanlal (supra), observed that the subject-matter in Order 23 Rule 1 means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. Where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit. Mere identity of some of the issues in the two suits does not bring about an identity of the subject-matter in the two suits. 32. Mere identity of some of the issues in the two suits does not bring about an identity of the subject-matter in the two suits. 32. Learned Counsel appearing for the appellants/defendants by referring the meaning of subject-matter of the suit as stated in the Law Lexicon- contends that since the subject-matter in both the suits is one and the same, the subsequent suit is barred under Order 22 Rule 4 CPC. I do not see any substance in his contention in view of the proposition of law laid down in Vallabh Das v. Madanlal (supra). 33. At the cost of repetition I may state that the earlier suit O.S. No.168 of 1986 filed by the respondent/plaintiff is only for injunction simplicitor and whereas the subsequent suit O.S. No.169 of 1994 is for declaration of title, injunction and for recovery of a part of the extent over which structures exist. The respondent/plaintiff asserted that the cause of action for filing the subsequent suit arose in the month of September, 1993 when the appellants/defendants attempted to trespass and put up some constructions. Though the appellants/defendants pleaded that they put up constructions much earlier to 1993, they did not place any material to speak of the structures being in existence prior to 1993. Added to that the first appellant/first defendant who claims to have got Ac.l.20 guntas towards her share in family settlement did not choose to enter into box to speak out her case. DW.l is the husband of the first defendant. He did not place any material on record to show that structures exist as on the date of filing of the suit were made prior to 1993. The trial Court and the lower appellate Court on thorough appreciation of the material brought on record came to the conclusion that the appellants/defendants failed to establish of their putting up constructions over a part of the land soon after the alleged family settlement pending disposal of O.S. No.440 of 1980. 34. In view of the above discussion, find that the subsequent suit of the respondent/plaintiff is not barred either under Order 2 Rule 2 or Order 23 Rule 1 of CPC. 35. Accordingly, the second appeal fails and the same is hereby dismissed with costs.