1. This is an appeal against a decision of the First Class Subordinate Judge of Bijapur, and it arises in this way.
2. In 1933 the plaintiff, who was a minor, filed a suit to recover possession of certain immoveable property against his adoptive mother Irawa and purchasers from her. His case was that Irawa had improperly alienated the properties to which the plaintiff was entitled under an adoption which Irawa had made to her husband, and in that suit one issue raised was : Whether Irawa had reserved to her a life interest in the ancestral properties. In that suit the plaintiff succeeded in getting a decree for possession. Issue No. 2 was answered in the negative, so that it was held that Irawa was not entitled to the properties for her life. The decree made in the suit was 'the plaintiff do recover possession with future 'mesne profits.' The decree was affirmed in 1937 by this Court in appeal. The present suit, which was filed in 1938, is a suit to recover survey No. 415/1 and also mesne profits in respect of the properties included in the suit of 1933 prior to the date of that suit.
3. The first question, which arises, is whether the suit is barred by Order II, Rule 2, Civil Procedure Code. So far as the claim to survey No. 415/1 is concerned, it seems to me clear that it is barred, because that survey number could have been included in the 1933 suit. We are told that it was not included owing to negligence on the part of the next friend of the plaintiff. But a full bench of this Court held in Krishnadas v. Vithoba (1938) 41 Bom. L.R. 59, F.B. that a decree could not be challenged on the ground of negligence by the next friend. It seems to me clear, therefore, that the prior suit ought to have raised the claim as to survey No. 415/1, and it cannot now be raised by virtue of the provisions of Order II, Rule 2.
4. Then the next question is about the mesne profits. Prima facie, I should have thought that inasmuch as the plaintiff was challenging the alienations made by his adoptive mother, and was seeking to recover property on the ground that those alienations were void, he could by exactly the same title have claimed mesne profits from the date of the alienations until the suit. Order II, Rule 2, Civil Procedure Code, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Now it was held by this Court in Ramchandra v. Lodha : AIR1924Bom368 that a claim for possession to immoveable property is not founded on the same cause of action as a claim for mesne profits in respect of that property. The plaintiff in that case having sued for possession of immoveable property, and omitted to claim mesne profits, was held entitled nevertheless to file a subsequent suit claiming mesne profits. The Court relied to a great extent on Order II, Rule 4, Civil Procedure Code, which provides (inter alia) that no cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immaveable property, except claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof. It is said that that rule recognizes the fact that a claim for possession and a claim for mesne profits derived from the property of which possession is claimed are founded on two different causes of action.
5. Order II, Rule 4, is founded on Order XIV, Rule 6, of the Rules of the Supreme Court in England, and those rules do not contain any rule corresponding with Order II, Rule 2. It seems to me that it may well be that the expression 'cause of action' in Order II, Rule 2, has a wider meaning) than the expression in Order II, Rule 4. Moreover the provision in the latter rule may have been inserted ex abundanti cautela without intending to lay down that the causes of action for possession and for mesne profits or arrears of rent accruing were distinct. The judgment of the Privy Council in Naba Kubar v. Radhashyam seems to me to support that view. Sir George Lowndes, in delivering the opinion of the Board, said in reference to Order II, Rule 2 (page 230):--
The rule in question is intended to deal with the vice of splitting a cause of action. It provides that a suit must include the whole of any claim which the plaintiff is entitled to make in respect of the cause of action on which he sues, and that if he omits (except with the leave of the Court) to sue for any relief to which his cause of action would entitle him, he cannot claim it in a subsequent suit. The object of this salutary rule is doubtless to prevent multiplicity of suits.
The cause of action in the present suit is, their Lordships think, clearly the same as in the previous suit; the right to the rents and profits rested on the same foundation of facts and law as the right to have the purchases of the decree and of the properties declared to be purchases for the mortgagors.
6. Applying that principle to this case, it seems to me that the right to the rents and profits of the properties wrongfully alienated by the adoptive mother rests on exactly the same facts and law as the claim to the corpus of those properties. It is, I think, difficult to reconcile Ramchandra v. Lodha (supra) with that opinion of the Privy Council. But in this case there was something more in the former suit than the claim for possession, because an issue was raised as to whether Irawa had a life interest in the property. Directly the Court held that she had not got a life interest in the property, it manifestly became possible for the plaintiff, on exactly the same facts and law as he had relied on for challenging the life interest, to claim the rents and profits received by the defendant in respect of that life interest. In my opinion it is clear that in this case a claim for rents and profits could have been made on the same cause of action as that on which the 1933 suit was founded.
7. That being so, I think the claim for mesne profits does not lie. I may say that even if it did lie, I should have very grave doubt whether in this case the plaintiff could establish his claim to mesne profits, having regard to the decisions of this Court in Mallappa v. Anant : AIR1936Bom386 and in Mohanlal v. Jagjivan (1937) 40 Bom. L.R. 394. But I base my judgment on Order II, Rule 2.
8. First Appeal No. 20 allowed, and suit No. 206 of 1938 dismissed, with costs throughout.
9. I agree.