JUDGMENT : ” Appellate judgment and decree dated 19.04.2003 passed by learned District Judge, Bongaigaon in Title Appeal No. 26/1993 allowing the appeal and dismissing the Title Suit No. 40/1989 by reversing trial court decree, has been brought under challenge in the present second appeal. 2. One Arabinda Sarma, as plaintiff, instituted Title Suit No. 40/1989 in the Court of learned Munsiff at Bongaigaon praying for declaration that he is entitled to get Khas possession of the suit land by evicting the defendant with cost etc. Plaintiff stated that he purchased share of the suit land measuring 3 bighas 3 kathas 18 lechas covered by Dag No. 83 of final khatian No. 31 of Bongaigaon Deori para from Gopal Roy and Lengthu Roy, both sons of Late Haliram Barman on 22.03.1978 by registered sale deed vide No. 2027 at a consideration of Rs. 7000/- and got possession thereof. The defendant Landaru Roy who is one of the descendants of the original owner sought to evict the plaintiff on 11.07.1978 for which plaintiff had instituted another title suit being T.S. No. 116/1978 in the Court of learned Munsiff No. 1 at Goalpara praying for declaration of right, title and interest and for prohibitory injunction restraining the defendant from dispossessing him from the suit land. Although his prayer for declaration of title was decreed by judgment and decree dated 30.05.1983 but his prayer for injunction was rejected by the learned trial court. The learned court in that suit observed that plaintiff not having made any prayer for khas possession, the same could not be decreed. It is the further case of the plaintiff that being emboldened by the judgment and decree dated 30.05.1983 in the former suit i.e. T.S. No. 116/1978 defendant was trying to sell the suit land and was also threatening the plaintiff not to enter into the suit land. In paragraph 6 of the plaint, plaintiff claimed that he is entitled to decree of khas possession by evicting the defendant. Plaintiff also claimed that cause of action for the second suit arose on 30.05.1983 when the former suit was dismissed. It is to be mentioned here that plaintiff having made prayer for khas possession of the suit land by evicting the defendant, did not make any disclosure as to when was he dispossessed from the suit land by the defendant. 3. It is to be mentioned here that plaintiff having made prayer for khas possession of the suit land by evicting the defendant, did not make any disclosure as to when was he dispossessed from the suit land by the defendant. 3. On being summoned, defendant appeared and submitted written statement contesting the claim of the plaintiff. In paragraph 6 of the written statement defendant claimed to be in possession of the suit land by way of inheritance from the time of his father. On the basis of the rival contentions of the parties, learned trial court framed as many as 5 (five) issues which are quoted below: 1. Whether there is cause of action for the plaintiff” s suit? 2. Whether the suit is bad for mis-joinder of necessary parties? 3. Whether the plaintiff is entitled to get khas possession over the suit land by evicting the defendant there-from? 4. Whether the plaintiff has been possessing the suit land since the date of purchase from Sri Gopal Roy and Lengthu Roy son of Late Haliram? 5. To what relief if any the parties were entitled? 4. Plaintiff examined 2 (two) witnesses including himself and exhibited some documents. Defendants examined 2 (two) witnesses. Neither of the parties brought on record the records of earlier suit i.e. T.S. No. 116/1978 either by producing the certified copy of the judgment and decree or the pleadings thereof. 5. The learned trial court after perusal of the materials made available by the parties arrived at a finding that plaintiff” s possession over the suit land was proved on the basis of Jamabandi Ext. 1 and chitta Ext. 2. Having so found, the suit for khas possession was decreed by judgment and decree dated 18.12.1991. Defendant Landaru Roy preferred title appeal before the first appellate court. This appeal was registered as T.A. No. 26/1993 in the Court of learned District Judge, Bongaigaon. The first appellate court by judgment and decree dated 18.02.1995 allowed the appeal dismissing the suit of the plaintiff. Aggrieved thereby, plaintiff had approached this court earlier vide second appeal No. 72/1995. Defendant Landaru Roy preferred title appeal before the first appellate court. This appeal was registered as T.A. No. 26/1993 in the Court of learned District Judge, Bongaigaon. The first appellate court by judgment and decree dated 18.02.1995 allowed the appeal dismissing the suit of the plaintiff. Aggrieved thereby, plaintiff had approached this court earlier vide second appeal No. 72/1995. This court by judgment and decree dated 19.04.2001 allowed the appeal, set aside the first appellate judgment and remanded the appeal to the first appellate court to decide the appeal afresh in the light of provision under Order II, Rule 2 of the Code of Civil Procedure inasmuch as plaintiff had filed a suit earlier without making prayer for recovery of khas possession. Upon remand, the learned first appellate court has passed the impugned judgment and decree on 19.04.2003 allowing the appeal again and thereby dismissing the suit of the plaintiff holding that plaintiff is estopped from instituting a fresh suit in view of bar under Order II, Rule 2 (3) of the Code of Civil Procedure. This judgment passed by the learned first appellate court for the second time has been brought under challenge in the present second appeal. This court while admitting the appeal on 11.09.1993 framed the following substantial question of law: ' Whether the question, as regards the Order II Rule 2 CPC in the facts and circumstances of the present case is correct proposition of law?' 6. I have heard Mr. P. K. Kalita, learned counsel for the appellants and Mr. S. S. Sarma, learned senior counsel assisted by Mr. B. J. Mukherjee for the respondents. At the threshold learned counsel appearing for both sides submit that the substantial question of law framed in this case requires to be recast. According to the learned counsel for the appellant as well as respondent, the amended substantial question of law should be as follows:- ' Whether suit of the plaintiff is barred under Order II, Rule 2 of the Code of Civil Procedure?' Having heard the learned counsel for the parties, this court is satisfied that the suggestion made by the learned counsel has force. Accordingly, aforesaid proposed substantial question of law is framed and both the learned counsel have been heard on same substantial question of law. 7. Mr. Accordingly, aforesaid proposed substantial question of law is framed and both the learned counsel have been heard on same substantial question of law. 7. Mr. P. K. Kalita, learned counsel for the appellant submits that earlier suit was for a different cause of action when the same defendant had threatened the plaintiff with dispossession on 11.07.1978. Mr. Kalita submits that the land is a fallow waste land without being put to any use. However, plaintiff was in possession of the land and so what he wanted in the earlier occasion is a prohibitory injunction so as to restrain the defendant from entering into the same. But after his prayer for decree of injunction was refused by the court, the defendant started overt acts and this is why filing of the subsequent suit became necessary and so clearly there are two different causes of actions for the suit. Mr. Kalita, therefore, submits that rigour of Order II Rule 2 of the Code of Civil Procedure would not apply to the present case. Placing reliance of the judgment of the Hon” ble Supreme Court in the case of State Bank of India v. Gracure Pharmaceuticals Limited reported in (2014) 3 SCC 595 : ( AIR 2014 SC 731 ) learned counsel for the appellant would argue that it is the defendant to establish that second suit was in respect of the same cause of action as that on which the previous suit was based, that in respect of that cause of action plaintiff was entitled to more than one relief and that he omitted to make prayer for that relief. According to Mr. Kalita, there is no mention of objection under Order II, Rule 2 of the Code of Civil Procedure in the written statement. The defendant also did not lay foundation of necessary facts to warrant framing of a issue involving bar under Order II Rule 2 of the Code of Civil Procedure and so the learned trial court after consideration of the materials available on record arrived at finding of fact that it is the plaintiff who is in possession of the suit land. The first appellate court committed error in taking the objection under Order II, Rule 2 of the Code of Civil Procedure into consideration and dismissing the suit of the plaintiff. 8. Mr. S. S. Sarma, Sr. The first appellate court committed error in taking the objection under Order II, Rule 2 of the Code of Civil Procedure into consideration and dismissing the suit of the plaintiff. 8. Mr. S. S. Sarma, Sr. Advocate, representing the defendant, on the other hand, would argue that objection under Order II, Rule 2 of the Code of Civil Procedure does not require to be raised specifically by defendant. This provision disentitles a plaintiff to approach a civil court praying for a particular relief which he had omitted in earlier round of litigation. Mr. Sarma argues that plaintiff having himself disclosed in his plaint that there was a previous suit between the same set of parties with regard to the possession of the same plot of land and that the trial court had refused to pass a decree for prohibitory injunction in favour of the plaintiff in that case, there was no burden on the defendant to discharge. Rather, plaintiff should have established necessary facts to show that dispossession had taken place subsequently i.e. after 30.05.1983. This not having been done, plaintiff has failed to state necessary material facts warranting a decree of recovery of possession and so it is a fit case for rejection of the plaint under Order VII, Rule 11 of the Code of Civil Procedure. 9. Having heard the learned counsel for the parties on these rival contentions, I have myself examined the pleadings of the parties and the documentary evidence brought on record. In the earlier round of litigation before this court in second appeal No. 72/1995, bar under Order II, Rule 2 of the Code of Civil Procedure was argued by the parties before this court and this court was of the view that unless this issue was discussed by the first appellate court, the same could not be entertained for the first time at second appellate stage. It is in this consideration of the matter, by judgment dated 19.04.2001 the appeal was remanded to the first appellate court with specific direction to consider the facts of the case in the light of Order II Rule 2 of the Code of Civil Procedure and thereupon to decide the appeal afresh. This being the position, although defendant did not raise objection under Order II, Rule 2 of the Code of Civil Procedure, the same stood mitigated due to earlier judgment passed by this Court. This being the position, although defendant did not raise objection under Order II, Rule 2 of the Code of Civil Procedure, the same stood mitigated due to earlier judgment passed by this Court. The learned first appellate court, therefore, was duty bound to consider the facts and circumstances of the case in the light of the provision of Order II Rule 2 of the Code of Civil Procedure. 10. Having so found, let us now examine as to whether finding arrived at by the learned first appellate court holding that the suit of the plaintiff is barred under the provision of Order II Rule 2 of the Code of Civil Procedure is sustainable. The facts admitted by the plaintiff in his own plaint go to show that there was a previously instituted suit being T.S. No. 116/1978 wherein plaintiff not only made prayer for declaration of his right, title and interest but also claimed for a decree of injunction restraining the defendant from dispossessing from the suit land. Admittedly, by judgment and decree dated 30.05.1983, the learned trial court on earlier occasion partly decreed the suit declaring title of the plaintiff over the suit land but refused to grant decree of injunction as prayed for. As per averments made in the plaint, the prayer for recovery of khas possession was also refused on the ground that no such averment or prayer was made in the plaint. This judgment and decree passed by the learned trial court on 30.05.1983 in T.S. No. 116/1978 attained finality as no appeal was preferred by the plaintiff. Thereafter, the present suit was instituted in the year 1989 stating that defendant has been trying to sell the suit land. In paragraph 6 of the plaint, plaintiff having claimed that he is entitled to get khas possession of the suit land by evicting the defendant, the possession of the defendant over the suit land has been virtually admitted. Once the plaintiff craves a decree for khas possession, he is duty bound to disclose as to the date since when he was out of possession of the suit land. This is because, it is necessary to adjudicate as to whether the claim for recovery of khas possession is barred by limitation or not. The plaintiff did not disclose that material fact in the plaint. This is because, it is necessary to adjudicate as to whether the claim for recovery of khas possession is barred by limitation or not. The plaintiff did not disclose that material fact in the plaint. Apart from failure to disclose the material facts as to dispossession from the suit land, the plaintiff has also failed to make an appropriate prayer in the subsequent suit. Prayer in T.S. No. 40/1989 is only for declaration that plaintiff is entitled to get khas possession of the suit land by evicting defendant thereon with cost of the suit. There is no prayer for getting khas possession by evicting the defendant. Be that as it may on his own saying, plaintiff has created an impression that defendant is in possession of the land. This factual aspect read with fact as to refusal of the learned trial court on previous occasion to grant a decree for consequential relief gives rise to the apprehension that even during pendency of the previous suit, if not earlier, plaintiff was out of possession. So it is apparent that plaintiff was at liberty to make prayer for recovery of khas possession in T. S. No. 116/1978. Plaintiff having omitted to make that prayer on his own saying, a bar under Order II, Rule 2 of the Code of Civil Procedure automatically becomes applicable and so learned first appellate Court has not committed any error in holding that plaintiff” s suit was hit by Order II, Rule 2 of the Code of Civil Procedure. Having considered materials available on record and having heard the learned counsel at length, there is no scope to hold a different view than the one as held by the learned first appellate Court. The sole substantial question of law, therefore, is decided in the affirmative and against the plaintiff. Consequently, second appeal is dismissed. 11. No order as to costs. 12. Draw decree accordingly and send down the lower Courts records immediately. Appeal dismissed.