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2015 DIGILAW 2177 (BOM)

Vitthal v. Shrikisan

2015-09-16

A.P.BHANGALE

body2015
Judgment 1. This Second Appeal was admitted on 27.7.2007 on the following substantial questions of law : (a) Whether the plaintiff was entitled to institute the instant suit when the earlier suit filed by the plaintiff was dismissed as withdrawn and the plaintiff had not sought liberty to file a fresh suit and the same was not granted to the plaintiff ? (b) Whether it can be said, in the facts and circumstances of the case, that the subject matter in this suit and the earlier suit was one and the same and hence the present suit was barred under the provisions of Order 23, Rule 1 of the Code of Civil Procedure ? 2. Heard submissions at the bar. It appears that, by the impugned Judgment and Order passed in Regular Civil Suit No.489 of 1987, the suit was partly decreed and the defendants were directed to hand over peaceful and vacant possession of the suit land bearing Survey No.166/3 to the plaintiff after the trial Court declared that the disputed way is easement of necessity and the plaintiff is entitled to use the said way. Consequently, the defendants were restrained permanently from causing obstruction and interference to the use of disputed way by the plaintiff personally or through any one on his behalf. The trial Court while deciding Regular Civil Suit No.489 of 1987 found that the plaintiff is owner of the suit land bearing Survey No.1663 under registered Sale deed dt.23.1.1981 and was in possession of the land pursuant to agreement to sell dt.25.1.1980. The trial Court was satisfied that the plaintiff was dispossessed by the defendants from the suit field and that the plaintiff is entitled to easement of necessity regarding cart way of 8 ft. wide. Thus, the relief of declaration and possession was granted in favour of the plaintiff. The Judgment and Order passed by the trial Court was questioned in Appeal u/s. 96 of the Code of Civil Procedure in the District Court, Wardha bearing Regular Civil Appeal No.33 of 1999. The first Appellate Court confirmed the finding that the plaintiff is owner of suit land bearing survey no.1663 under sale deed dt.25.1.1980 and was dispossessed by the defendants after sale deed was executed and it was held that the plaintiff is entitled to right of way of 8 ft. wide. That being so, the appeal came to be dismissed. 3. The first Appellate Court confirmed the finding that the plaintiff is owner of suit land bearing survey no.1663 under sale deed dt.25.1.1980 and was dispossessed by the defendants after sale deed was executed and it was held that the plaintiff is entitled to right of way of 8 ft. wide. That being so, the appeal came to be dismissed. 3. Against these concurrent findings of facts, this Second Appeal is preferred on the aforesaid substantial questions of law as formulated by order dt.27.7.2007 by this Court. 4. Mr. S.P. Kshirsagar, learned Counsel for the appellants argued that the plaintiff was not entitled to institute the suit on the ground that the earlier suit was withdrawn without liberty to file fresh suit. According to Mr. S.P. Kshirsagar, learned Counsel for the appellants, the plaintiff is required to raise all grounds available to him on the subject in dispute and non-inclusion of such grounds available to him would amount to abuse of process of Court as the plaintiff cannot institute several suits on the same subject. The learned Counsel made a reference to the ruling in the case of Smithkline Beecham Consumer Healthcare GMBHY and Others .vs. Hindustan Lever Limited and another reported in 2002 (1) Mh.l.J. 453 to canvass the provisions of Order 2, Rule 1 of the Code of Civil Procedure which obliges the plaintiff to include all grounds available to him in the suit. 5. Mr. Kshirsagar, learned Counsel also made a reference to the ruling in the case of N.V. Srinivasa Murthy and Others vs. Mariyamma (Dead) by proposed L.Rs. and Others reported in (2005) 5 SCC 548 to argue that under Order 2, Rule 2 of the Code of Civil Procedure, there is a bar to fresh suit in respect of the relief omitted. 6. Reference is also made to the ruling in the case of Prahlad Singh .vs. Col. Sukhdev Singh, 1987 EQ (SC) 252 to submit that a party cannot be allowed to reagitate the same matter again when the matter is already decided. 7. Reference is then made by learned Counsel Mr. S.P. Kshirsagar to the ruling in the case of Union of India vs. Nanak Singh reported in 1968 EQ (SC) 022 U to canvass the principle of finalty of decision after full contest. The ruling in the case of Arjun Singh vs. Mohindra Kumar, 1963 EQ (SC) 0261 is also referred to. Reference is then made by learned Counsel Mr. S.P. Kshirsagar to the ruling in the case of Union of India vs. Nanak Singh reported in 1968 EQ (SC) 022 U to canvass the principle of finalty of decision after full contest. The ruling in the case of Arjun Singh vs. Mohindra Kumar, 1963 EQ (SC) 0261 is also referred to. 8. Mr. S.P. Kshirsagar, learned Counsel for the appellants also made a reference to the ruling in the case of Dayaram Raghobaji Belsare vs. Vishrantibai Deorge Lavet reported in 1990 Mh.L.J. 227 to canvass the proposition that when the earlier suit is decided in respect of the same cause of action and the same is withdrawn, the subsequent suit on the same ground is barred. 9. As against these submissions, Mr. A.K. Waghmare, learned Counsel for the respondents contended that the appellants did not come with clean hands before this Court at the time of admission of the Second Appeal when the appeal was admitted. According to him, the plaintiff did not withdraw any suit at any point of time. Earlier, the suit bearing Regular Civil Suit No.158 of 1980 was filed by the original land owners along with the plaintiff as transferee in possession of the suit land and that suit was filed on the ground that present appellants had started disturbing passage AB used by vendors of the plaintiffs for more than 20 years. Cause of action for that suit arose on or about 11th March, 1980 and the suit claim therein was different than the easement of necessity claimed in present controversy. At that time, the present respondent/plaintiff was not owner of the suit land but he was merely in possession on the basis of agreement to sell dt. 25.9.1980. The said Civil Suit was for declaration and injunction only in which the trial Court had granted interim injunction in respect of possession of the former land owners as well as the plaintiff as one co-owner by its order dt.29.7.1980. The appeal against such order of interim injunction when challenged by Civil Appeal No.30 of 1980 in District Court, Wardha was dismissed by District Judge, Wardha on 6.9.1980. The appeal against such order of interim injunction when challenged by Civil Appeal No.30 of 1980 in District Court, Wardha was dismissed by District Judge, Wardha on 6.9.1980. Thus, there was injunction not to disturb the passage “AB” granted against the appellants, but later on, after the sale deed was executed by former land owners in favour of respondent no.1/plaintiff on 23.1.1981, the plaintiff had sought amendment in the plaint which was objected and the application for amendment was rejected. Under these circumstances, respondent no.1 (plaintiff herein) had no option but to file separate independent suit based upon plaintiff's title of suit property for injunction, possession and damages on the separate/different cause of action which occurred in March, 1981. In the background of these facts and circumstances, it is contended on behalf of the respondents that concurrent findings of facts have been recorded by both the Courts below in favour of the plaintiffs and therefore, the Second Appeal is absolutely without merits. 10. Mr. Waghmare, learned Counsel made a reference to the ruling in the case of Maharashtra State Electricity Board and another vs. National Transport Company reported in 1992 Mh.L.J. 1505 to canvass submission that subsequent suit based upon same transaction but arising out of different cause of action is not barred under Order 2, Rule 2 of the Code of Civil Procedure. The Division Bench of this Court in para no.17 of the ruling made a reference to the case of Mohammad Khalil Khan and Others vs. Mahbub Ali Mian and Others reported in AIR 1949 PC 78 wherein various principles were mentioned to indicate that distinct cause of action than the earlier cause of action can entitle the plaintiff to sue afresh. The correct test is whether the claim in the new suit is, in fact, founded upon cause of action distinct from that which was foundation for the former suit. It is, thus, submitted that the plaintiff cannot be blamed in the facts and circumstances of the present case to pray for relief of possession of the suit property based upon different cause of action. Reference is also made to the ruling in the case of Sidramappa vs. Rajashetty and Others reported in AIR 1970 SC 1059 (1) to press this submission. Reference is also made to the ruling in the case of Sidramappa vs. Rajashetty and Others reported in AIR 1970 SC 1059 (1) to press this submission. Thus, where the cause of action, on the basis of which the previous suit was brought, does not form foundation of the subsequent suit and in the earlier suit, the plaintiff could not have claimed the relief which is sought in the subsequent suit, the plaintiff's subsequent suit is not barred by Order 2, Rule 2 of the Code of Civil Procedure. 11. Mr. Waghmare, learned Counsel also submitted that the defendants did not raise the issue as to bar of the suit in the Courts below and cannot be allowed to canvass it at the stage of Second Appeal as against Judgments recording concurrent findings of facts for relief of injunction and possession granted in favour of the plaintiff by both the Courts below. It is submitted that burden was upon the defendants to plead and establish bar of the subsequent suit in view of the earlier suit. Nothing was brought on record by the defendants to plead and establish bar to the suit as canvassed under Order 2, Rule 2 of the Code of Civil Procedure. 12. I have perused the rulings cited at the bar. One cannot dispute the proposition that the subsequent suit based upon the same transaction but arising out of different cause of action is not barred under Order 2, Rule 2 of the Code of Civil Procedure. Perusal of the Judgment by the Courts below and concurrent findings of facts recorded as to possession of the suit land bearing Survey No.1663 admeasuring 1.62 acres, out of which Survey No.1661 was admeasuring 0.88 acres and finding as to existence of easement of necessity as claimed for passage way of 8 ft. vide necessity of use of way through land bearing Survey No.1661 along with its north-south dhura from eastern direction. The trial Court as well as the first Appellate Court found that the plaintiff is owner of suit land bearing Survey No.1663 under registered Sale deed dt.23.1.1981 and was entitled to the right of way as easement of necessity regarding cart way of 8 ft. vide. Thus, the plaintiff was granted decree of declaration and relief of possession in respect of the suit way by concurrent findings of facts. vide. Thus, the plaintiff was granted decree of declaration and relief of possession in respect of the suit way by concurrent findings of facts. The plaintiff led evidence of his vendors/original owners of the land who sold the land to the plaintiff. The defendants could not point out any alternate way for the use of the plaintiff to approach the suit land purchased by him. In the facts and circumstances, therefore, there was no legal bar to file fresh suit for declaration and injunction. That being so, the plaintiff was entitled to institute Regular Civil Suit No.498 of 1987 in the Court of Joint Civil Judge (Jr.Dn.), Wardha with a prayer for possession of the suit land and claiming easement of necessity in respect of cart way of 8 ft. width to claim declaration, possession and permanent injunction in respect of the same. In view of the concurrent findings of fact that the plaintiff is owner of the suit land bearing Survey No.1663 under registered Sale deed dt.23.1.1981 and that he was entitled to right of easement of necessity regarding cart way of 8 ft. width as easement of necessity, the decree passed by the trial Court and confirmed by the first Appellate Court would not require any interference in this Second Appeal as nothing was brought on record to indicate that institution of Regular Civil Suit No.489 of 1987 was barred, as contended by the appellants. The substantial questions of law are, therefore, answered against the appellants. 13. Even otherwise, the Second Appeal U/s.100 of the Code of Civil Procedure is not a matter of right. It is only when the substantial question of law is involved that the Second Appeal can be entertained. Looking from any angle, therefore, in view of the concurrent findings of facts by the Courts and in the absence of substantial question of law, the Second Appeal is dismissed with costs.