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Naro Balvant Vs. Ramchandra Tukdev and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom326
AppellantNaro Balvant
RespondentRamchandra Tukdev and ors.
Excerpt:
civil procedure code (act xiv of 1882), section 43 - first suit to redeem--second suit to eject--causes of action in the two suits not identical. - - 'the relative rights and duties of owner and trespasser on the one hand and of mortgagor and mortgagee on the other are wholly different, and failure in a suit of simple ejectment does not *in any way bar the plaintiff in a subsequent suit to enfore his right to redeem as mortgagor......nos. 2 to 6. he refused to allow the plaintiff to change the suit to one in ejectment. the present suit has, therefore, now been brought as an ejectment suit, and the lower appellate court has held it to be barred by section 43 of the code of civil procedure (xiv of 1882), on the ground that, if the plaintiff had discharged the mortgage-debt when he brought the former suit, he was then entitled to sue in ejectment, and, not having then done so, could not now do. this objection to the present suit was not taken by the defendants themselves, but the issue on the point was raised by the court of its own motion. we think it was wrongly raised and decided, inasmuch as the cause of action alleged in the former suit was the refusal of the defendants to give an account and to restore the.....
Judgment:

Birdwood, J.

1. The plaintiff sued in 1883 to redeem from the defendants Nos. 2 to 6 an alleged mortgage of the land now in suit. He said in the plaint that it was likely that the mortgage-debt had been more than paid off, and he asked that an account should be taken under the Dekkhan Agriculturists' Belief Act (XVII of 1879), and possession of the land awarded to him. The defendants Nos. 2 to 6 denied the mortgage. The Subordinate Judge, who tried the suit of 1883, held that it was not maintainable, the alleged mortgage not having been established as against the defendants Nos. 2 to 6. He refused to allow the plaintiff to change the suit to one in ejectment. The present suit has, therefore, now been brought as an ejectment suit, and the lower appellate Court has held it to be barred by Section 43 of the Code of Civil Procedure (XIV of 1882), on the ground that, if the plaintiff had discharged the mortgage-debt when he brought the former suit, he was then entitled to sue in ejectment, and, not having then done so, could not now do. This objection to the present suit was not taken by the defendants themselves, but the issue on the point was raised by the Court of its own motion. We think it was wrongly raised and decided, inasmuch as the cause of action alleged in the former suit was the refusal of the defendants to give an account and to restore the land. It was such a suit that a mortgagor could properly bring. All that it was necessary for the plaintiff to establish was the alleged relationship of mortgagor and mortgagee between himself and the defendents Nos. 2 to 6, and the liability of the defendents to give an account and to restore the property on the payment by the plaintiff of any balance that might be due. It was not necessary for the plaintiff, and therefore not incumbent on him, to sue in ejectment, merely because he believed that, on taking the account, it would be found that nothing was due by him.

2. Under Section 43 of the Code of Civil Procedure, as was said in Thyila Kandi Ummatha v. Thyila Kandi Cheria Kunhamed I.L.R. 4 Mad. 308 'a plaintiff is only bound to include the whole of the claim which he is entitled to make in respect of the cause of action.' In the former suit, the obligation to restore the land on the payment of the mortgage-debt constituted the cause of action. The question of title was not even an incidental question. In the present case the plaintiff's right of action is based on his title. The evidence in the two suits would be essentially different. In Sridhar Vinayak v. Narayan 11 Bom. H.C. R 224 it was said. 'The relative rights and duties of owner and trespasser on the one hand and of mortgagor and mortgagee on the other are wholly different, and failure in a suit of simple ejectment does not * * * in any way bar the plaintiff in a subsequent suit to enfore his right to redeem as mortgagor.' The converse of this proposition is applicable to the present case.

3. We, therefore, reverse the Assistant Judge's decree, and remand the appeal for trial on the merits. Costs to abide the result.


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