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2008 DIGILAW 463 (JK)

Shamima Akhter v. Rashida Akhter

2008-12-02

MOHAMMAD YAQOOB MIR

body2008
1. By medium of this appeal Judgment and decree passed by Learned District Judge Anantnag is assailed, whereunder the suit filed by the appellants has been dismissed, as barred under Order 2 Rule 2 C.P.C. 2. For effectuating final decision upon the subject in dispute and for preventing multiplicity of litigation frame of the suit shall be such as may include whole of the claim, which the plaintiffs shall be entitled to in respect of the same cause of action, which takes into its sweep successive claim as well. 3. While framing suit for cancellation of Will deed the appellants have chosen not to include the claim for cancellation of Sale deed, as was available on the same cause when the parties in both suits were same. 4. Noticing of the precise factual matrix for proper adjudication is imperative. Deceased Mohammad Yaqoob Khan is survived by four daughters i.e. appellants and respondent No. 1, whereas respondent No.2 is the son of respondent No. 1. Deceased has executed Will deed, reduced into writing on 28.5.1992 and registered on 25.3.1996. The recitals of the Will deed indicate that the deceased had given the share of property in cash and kind to his daughters, whereas the eldest daughter respondent No. 1 was conferred the status of `Khananishin (resident daughter) and at the same time Basharat Ahmad (respondent No.2) son of respondent No. l stand adopted as son. The recitals of the deed further suggest that Basharat Ahmad shall be entitled to all the estate of the deceased. 5. Respondent No. 1 Rashida Akhter through her Attorney Habibullah (respondent No.5) has sold the land measuring 2 kanals to 3-1/2 marlas under Khasra No. 110 min, Khewat No. 147, Khata No. 107 including two storeyed tin roofed residential house standing thereon situated at village Sarnal (Lazbal) Anantnag vide Sale deed scribed and registered on 30.11.2006 in favour of respondent Nos. 3 and 4. 6. Appellants (three daughters of the deceased) instituted the suit for cancellation of the instrument (Will deed) on 25.5.2007, wherein beneficiary of the Will deed, respondent No. l and 2 as well as Attorney and vendees of the Sale deed are party respectively as defendants 1 to 5. Subsequently, appellants have filed one more suit on 30.5.2007 for cancellation of instrument (Sale deed) dated 30.11.2006. In the said suit all the respondents were the defendants before the Court of District Judge Anantnag. Subsequently, appellants have filed one more suit on 30.5.2007 for cancellation of instrument (Sale deed) dated 30.11.2006. In the said suit all the respondents were the defendants before the Court of District Judge Anantnag. The (Respondents) defendants in the said suit filed an application for rejection of the plaint in terms of Order 7 Rule 11 C.P.C. 7. The Learned District Judge after considering the prayer for rejection of the plaint has come to the conclusion, that Order 2 Rule 2 C.P.C is applicable. Application for rejection of plaint succeeds, therefore Suit dismissed. 8. Learned Counsel appearing for the appellants (plaintiffs) contended that the cause of action on the basis of which former suit was filed does not form the foundation of the subsequent suit, as the appellants could not claim the relief in the former suit, which they have claimed in the subsequent suit. Secondly, at the time of filing the 1st suit possession of the suit property was not taken by the vendees, whereas at the time of filing subsequent suit possession was taken over by the vendees, same is claimed to have been specifically pleaded in para-5 of the former plaint and in Ground-K and para 5 of the subsequent suit which has not been appreciated by the Learned trial court. In support of the contentions learned counsel placed reliance on various Judgments referred hereinbelow: 9. In Union of India v. Keser Singh (AIR 1978 J&K Page 103 para-13) reads as under: "Turning now to the other question, the term `relief as understood by sub-r. (3) means a relief which a plaintiff could have claimed in addition to the relief claimed by him in his earlier suit and which the court could have granted him along with the relief originally prayed for. It certainly cannot mean and include a relief which a plaintiff could have claimed only as an alternative to the relief originally claimed and which the court could have granted only in the alternative and not in addition to the one originally prayed for." 10. It certainly cannot mean and include a relief which a plaintiff could have claimed only as an alternative to the relief originally claimed and which the court could have granted only in the alternative and not in addition to the one originally prayed for." 10. In the Judgment Kewal Singh v. Lajwanti (AIR 1980 SC page 163), it has been held: "A Perusal of O.2 R.2 would clearly reveal that this provision applies to cases where a plaintiff omits to sue a portion of the cause of action on which the suit is based either by relinquishing the cause of action or by omitting a part of it. The provision has, therefore, no application to cases where the plaintiff bases his suit on separate and distinct causes of action and chooses to relinquish one or the other of them. In such cases, it is always open to the plaintiff to file a fresh suit on the basis of a distinct cause of action which he may have so relinquished." 11. The principle as laid down by Privy Counsel in case Mohammad Khalil Khan v. Mehbub Ali Khan (AIR 1949 PC 78) as quoted in the Judgment Sandeep Polymers Pvt. Ltd. V. Bajaj Auto Ltd. reported in 2007 (5) Supreme page 513 para-26, it has been held: "26. It would be appropriate to quote para 61 of the said judgment, which reads as follows: 61. (I) The correct test in cases falling under Order II Rule 2, is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation of the former suit (Moonshee Buzloor Fuheer v. Shumroonnissa Begum, (1967) 11 Moo 1551 : 2 Bar 259 (P.C.). (2) The `cause of action means every fact which will be necessary for the plaintiff to prove it traversed in order to support his right to the judgment (Real v. Brown; (1889) 22 Q.B.O. 138: 58 L.J. Q.B.476). (3) If the evidence to support the two claims is different, then the causes of action are also different. (Brunsoon v. Nurnphroy (18841 Q.B.O. 141 : 53I L.J.Q.B. 476). (4) The causes of action in the two suits may be considered to be the same if in substance they are identical (Brunsoon v. Numphroy, supra). (3) If the evidence to support the two claims is different, then the causes of action are also different. (Brunsoon v. Nurnphroy (18841 Q.B.O. 141 : 53I L.J.Q.B. 476). (4) The causes of action in the two suits may be considered to be the same if in substance they are identical (Brunsoon v. Numphroy, supra). (5) The cause of action has no relation whether 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 media upon which the plaintiff asks the Court to arrive a conclusion in his favour. (Mst. ChandKourv. Pratap Singh : (1887) 15 IA 156. This observation was made by Lord Watson in a case under section 43 of the Act of 1880 (Corresponding to Order II, Rule 2) where plaintiff made various claim in the same suit." In the light of the principles as laid down, controversy has to be appreciated. 12. The pivotal question for consideration is, as to whether Order 2 Rule 2 CPC applies to the present case. In this connection Section 12 as well as Order 2 Rule 2 of CPC are reproduced herein below: "12. Bar to further suit: Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies." Order 2 Rule 2. "Suit to include the whole claim: (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action: but plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim. Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs. (2) Relinquishment of part of claim. Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs. - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." "Explanation. - For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action." 13. Conjoint reading indicates that the subsequent suit on a same cause of action shall not be permissible. On institution of the 1st suit on a particular cause, if the plaintiffs omit to sue or intentionally relinquishes portion of their claim they cannot subsequently sue in respect of the portion, so omitted or relinquished. 14. In the former plaint, it is categorically averred that the defendant No. 1 through defendant No.5 has executed the Sale deed in favour of defendant Nos. 3 and 4 . The claim of the appellants is that they alongwith respondent No. 1 are equally entitled to the legacy of the deceased. The Sale deed executed is outcome of fraud. The Will deed confers the status of Khananisheen (resident daughter) to the respondent No. 1 and respondent No. 1 in the capacity of Khananisheen daughter has claimed absolute ownership and has sold the property i.e. two storeyed house and 2 kanals and 3-1/2 marlas of land under Survey No. 710 min at Sarnal Lazbal. The claim was available, cause was the same i.e. validity of execution of Sale deed as per allegations in both the plaints is dependant on the position of respondent No.1 being Khananisheen status as conferred to her under the Will deed, therefore there is a deliberate omission, as a necessary corollary relinquishment of the portion of the claim i.e. challenge to the Sale deed, which is more clear, as the vendees defendant Nos. 3 and 4 though arrayed as party in the former suit but no relief claimed against them. 3 and 4 though arrayed as party in the former suit but no relief claimed against them. Order 2 Rule 2 CPC clearly takes the position of the case into its sweep. 15. The contention of the Learned Counsel that subsequent to the filing of the former suit, possession was delivered to the vendees, so a new cause of action, therefore subsequent suit is not hit by Order 2 Rule 2 CPC. Even if the submission is taken correct still is of no help to the appellants, cause for challenging execution of the Sale deed was available at the time of filing of the former suit. That apart, to say possession was subsequently delivered is imaginary. The contention runs contrary to the averments of the plaints, as has been rightly taken note of by Learned trial court. In the former plaint in para-5 it is mentioned that the defendants are not allowing plaintiffs to use and occupy the property in question and are hell-bent to hand over the possession to some blue eyed persons and it is also mentioned in the same para, that impugned document (Will deed) holds good in favour of the respondents No. 1 and 2, in pursuance of that title has been bestowed in favour of respondents 3 and 4 by virtue of Sale deed . In para-K of the grounds in the subsequent plaint seeking cancellation of Sale deed, reads as under: - (K) "That it would be pertinent to submit that the plaintiffs are having the better title and possession over the suit property, at present also by virtue of a right of prior purchase even in the event of the defendants 1-2 are declared as the only or joint successors of their deceased father Late Mohd Yaqoob Khan in exclusion of the plaintiffs, as alleged by them), which right of prior purchase defendants are and were legally bound to admit and as such were not legally authorized to affect the sale of the said piece of land( suit property) and in that view of the matter they ought to have served a legal notice upon them as provided under Right of prior purchase Act. It is important to mention here that the plaintiffs are sensitively and emotionally attached to the property and cannot be deprived of their right to keep hold of the same being their paternal home, wherein they have taken birth and have been brought up and as such cannot be permitted to alienate it and allowed to remain in the possession of the unfamiliar persons/strangers" The para-5 of the said plaint reads: "5. That the defendants are not allowing the plaintiffs to use and occupy the property in question in full and final and are hell bent to handover the possession and title of all the assets to some blue eyed persons and to their next kinfolk in particular as such the present suit is preferred before the Honble court without any delay and the said cause of action subsists till date. It would be pertinent to submit that plaintiffs have got the knowledge of the said document on 13.04.2007, when they hear about the attestation of mutation and they accordingly applied for it on 04.05.2007 which was issued to them on 07.05.2007 as such suit is within time for which it is specifically prayed that suit may kindly be treated within time for the reasons and grounds specified hereinabove as cause of action subsists till date against all the defendants, as the impugned document is still in operation and holds good (however, poor in law) in favour of all the defendants as same has been executed first, in the revenue records and in pursuance of that, have bestowed the title in favour of the defendant 3 and 4 by virtue of Sale deed, (sham transaction) executed and registered through defendant 5 (attorney holder) out of fraud, ruse and deception in collusion with each other." 16. It is clearly mentioned as above that the plaintiffs are not being allowed to use the suit property from the day Sale deed has been executed, defendants include vendees who figure as defendants No. 3 and 4 in the plaint, which means they were in possession from the date of execution of Sale deed, which admittedly was executed prior to institution of former suit. 17. 17. It clearly indicates that subsequent to filing of the former suit no fresh cause has accrued, as the possession at the time of institution of former suit had changed hands, same position is supported by para 5 of the former plaint (Suit), relevant portion of which is reproduced hereunder: "That the defendants are not allowing the plaintiffs to use and occupy the property in question in full and final and are hell bent to hand over the possession and title of all the assets to some blue eyed persons and to their next kin folk in particular, as such suit is preferred." It further reads as: "As the impugned document is still in operation and holds good, (however poor in law) in favour of all the defendants, as the same has been executed first in the revenue records and in pursuance of that have "bestowed the title in favour of the defendants No. 3 and 4 by virtue of Sale deed (Sham transaction) executed and registered through defendant No. 5 (Attorney holder) out of fraud and deception inclusion with each other." Same position is further supported by ground (C) of the subsequent plaint. (C) That so called Sale deed in question as contained in Annexure-A has been got executed and registered by deception and fraud of the parties (defendants) and under their undue influence, their deceased father has been made to sign unto to the Will deed, signatures of whom itself reveal the duress had been caused upon him, meaning thereby that same is not out of his Will, consent and mental order, as such the impugned document (Sale deed) which has been in furtherance of the Will deed is void and deserves to be setaside and quashed." 18. It clearly indicates the validity of the Sale deed is dependent on the finding to be returned on the validity of the Will deed, so cause of action is one. The successive claim in the subsequent suit seeking cancellation of the Sale deed is based on the Cause of action, forming foundation in the former suit seeking cancellation of the Will deed. 19. The Scheme and object of Order 2 Rule 2 CPC is that all the matters in dispute between the parties regarding the same transaction should be disposed of in the same suit. 20. 19. The Scheme and object of Order 2 Rule 2 CPC is that all the matters in dispute between the parties regarding the same transaction should be disposed of in the same suit. 20. The aforesaid position apart, from CMP filed, one more position has emerged that the deceased had also executed Gift deed executed on 3.7.1974 and registered on the same date, whereunder status of Khananisheen has been conferred to respondent No. 1 and the suit property consisting two storeyed Bungloo including the land underneath and appurtenant thereto covered under Survey No. 717 has been gifted away in favour of respondent No. 1. This Gift deed has neither been challenged nor has been relied upon by the trial court. What will be its impact is not required to be addressed at this stage of the appeal. Remedy if any, for its challenge shall be open to challenge by the concerned party. 21. Explanation to Order 2 Rule 2 CPC clarifies the object of the rule. Explanation reads as: "Explanation. - For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action." 22. It enjoins that obligation and collateral security for its performance and successive claims arising under the same obligation, shall be deemed respectively to constitute one cause of action. 23. The appellants have pleaded that the Will deed is outcome of fraud, based on which defendant No. 1 has bestowed titled and possession to defendant No.3 and 4 by virtue of Sale deed under challenge. 24. Claim of the appellants is that the Will deed is fraud, the successive claim regarding Sale deed executed in pursuance of Will deed constitute one cause. This position is clearly covered by explanation to Order 2 Rule 2 CPC quoted above. 25. Appellants were required to frame the suit so as to afford ground for final decision upon both validity of Will deed and successive Sale deed, filing of subsequent suit could be avoided. Filing of two suits violates the object of Rule 1 Order 2, resultantly rigor of Order 2 Rule 2 has to operate. 26. Appellants undoubtedly were entitled to claim cancellation of Will deed and also the cancellation of Sale deed both reliefs are in respect of the same cause of action. Filing of two suits violates the object of Rule 1 Order 2, resultantly rigor of Order 2 Rule 2 has to operate. 26. Appellants undoubtedly were entitled to claim cancellation of Will deed and also the cancellation of Sale deed both reliefs are in respect of the same cause of action. Omission or abandonment to claim relief for cancellation of Sale deed in former suit precludes appellants from claiming the relief of cancellation of Sale deed in the subsequently instituted suit. 27. Final decision in the former suit is not imperative for applying order under Order 2 Rule 2 CPC. Contention of Learned Counsel to this extent is misconceived. 28. While applying the principle underlying Order 2 Rule 2 CPC, appellants were required to claim all reliefs in the former Suit, as the basic cause of action viz-a-viz all the reliefs including the reliefs prayed for in the subsequent suit were available at the time of institution of the former suit. The omission on the part of the appellants amounts to relinquishment of the claim set up in the subsequent suit, therefore Order 2 Rule 2 read with Section 12 of CPC has been rightly applied. 29. Cumulative effect of the afore stated factual and legal position is that the subsequent suit has been rightly dismissed. Judgment and decree impugned does not call for interference. Appeal accordingly fails, so is dismissed. No order as to costs. Decree be drawn up. 30. Copy of the Judgment and decree alongwith trial court record be send back. Record of the former suit be send back to the Court of Munsiff for disposal under law. Parties shall appear there on 20.12.2008.