1. This appeal is brought by the plaintiff. His suit has been dismissed by both the Courts below on the ground that it was incompetent under Order II, Rule 2 of the Civil Procedure Code.
2. The suit was brought on a sale deed of October 1910 passed in the plaintiff's favour by the 1st defendant Bahini. Bahini and Tapi were the daughters of one Tukaram Narayan who died in 1901, leaving his widow Bhagirthi and the two daughters I have named. In the year 1910 Suit No. 270 of that year was brought by Bahini, the present 1st defendant, against her sister Tapi, the present 2nd defendant, and Zagdu, the present 4th defendant, for possession of Survey No. 324 which had been sold to Zagdu in January 1906 by Bhagirthi. In the same month, January 1906, but a few days earlier, Bhagirthi had sold Survey Nos. 403 and 404 to the present 3rd defendant, Dagdu. It is found as a fact that Dagdu and Zagdu and the 3rd brother Ukhardu, defendant No. 5, are joint in estate. The present suit by Bahini's vendee was to recover possession of the three Survey Nos. 324, 403 and 404.
3. The question is, whether the lower Courts were right in holding that the suit was barred by Order II, Rule 2 of the Code. That rule 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,' and that 'where a plaintiff omits to sue in respect of any portion of his claim, he shall not afterwards sue in respect of the portion so omitted.' In the view of the lower Courts the present claim in respect of Survey Nos. 403 and 404 was, or was to be regarded as, a portion of the claim agitated in Bahini's suit of 1910 and was based upon the same cause of action. It was consequently held that since Bahini omitted to sue in respect of Survey Nos. 403 and 404 in 1910, the plaintiff was debarred from preferring his claim to those numbers in the present suit.
4. The question whether that decision is right seems to me to turn entirely upon whether the cause of action in the earlier suit was identical with, or different from, the cause of action in the present suit, and I differ from the learned Judges of the Courts below, because, in my opinion, the two causes of action are distinct. As was said in Kashinath Ramchandra v. Nathoo Keshav (1914) 38 Bom. 444 'the expression 'cause of action' refers... to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour' and 'to every fact which it would be necessary for the plaintiff to prove... in order to support his right to the judgment of the Court.' Where the question is, whether the causes of action in two suits are different or identical, one of the most valuable tests appears to me to be that supplied by the authority of Brunsden v. Humphrey (1884) 14 Q.B.D. 141 where Lord Justice Bowen, in delivering judgment, quoted the following words used by De Grey C.J. in Kitchen v. Campbell (1771) 2 W. B1. 827:
The principal consideration is, whether it be precisely the same cause of action in both, appearing by proper averments in a plea, or by proper facts stated in a special verdict, or a special case. And one great criterion of this identity is that the same evidence will maintain both actions.
5. And that test was applied by the Lord Justice for the decision of the particular case then before the Court. Adopting that same test here, it seems to me clear that the causes of action in the two suits were distinct. In the former suit the facts, which the then plaintiff was under obligation to prove in order to entitle her to the Court's judgment, were that on the death of her mother the property devolved upon her and that the alienation to Zagdu of Survey No. 324 was invalid. But the facts, which Bahini or her vendee, the plaintiff, would have to prove in this suit in order to recover judgment, would be not only that Bahini took the property on the death of her mother, but that the sale to Dagdu of the different Survey Nos. 403 and 404 was invalid in law; in other words, the two sets of facts which require to be proved in both suits in order to enable the plaintiff to succeed were different sets of facts, and it follows, in my opinion, that the causes of action must be pronounced to be different. Mr. Rao in support of the judgment under appeal has called our attention to Nundo Kumar Nasker v. Banomali Gayan (1902) 29 Cal. 871 which was cited with approval in Umabai v. Vithal. (1908) 33 Bom. 293 But these decisions do not, in my opinion, conflict with the view which I have expressed. They go no further, as I understand them, than deciding; that it is open or competent or lawful for a plaintiff suing in ejectment to join as co-defendants various alienees who are in possession of portions or fragments of the property in suit. They do not, I think, decide, what alone would assist the respondents here, that it is obligatory upon such a plaintiff to join all such alienees as co-defendants at the risk of forfeiting his right to recover from those whom he fails to join in his first suit: in other words, they do not decide that the cause of action supplied by one alienation is identical with the cause of action supplied by another.
6. Upon these grounds I am of opinion that the lower Courts were wrong in dismissing the plaintiff's claim upon the preliminary ground that it was bad under Order II, Rule 2.
7. The decree of the lower Court must be reversed and the suit must be remanded to be heard and decided on its merits in regard to Survey Nos. 403 and 404. As to Survey No. 324 the decision of the lower Courts has not been impugned before us and will stand.
8. Costs of the appeal will be costs in the suit.
9. I concur. The causes of action were, in my opinion, not the same in the two suits. The cause of action in the suit of 1910 consisted of the title arising on the death of Bhagirthi and the alleged invalidity of the sale deed relating to Survey No. 324 in favour of Zagdu. The cause of action in the present suit of 1912 consisted of the title arising on the death of Bhagirthi and the alleged invalidity not, for present purposes, of the sale deed relating to Survey No. 324 in favour of Zagadu, but of another sale deed relating to other Survey Nos. 403 and 404 in favour of another man, Dagdu. No doubt those two separate causes of action might have been joined together in one suit, as raising the common question of title arising out of the death of Bhagirthi and affecting to some extent each of the two different defendants, under the permissive provisions of Order I, Rule 3 of the Schedule of the Civil Procedure Code as in the cases of Nundo Kumar Nasker v. Banomali Gayan (1902) 29 Cal. 871 and Umabai v. Vithal (1908) 33 Bom. 293 .
10. But that is quite another thing from holding that those two separate causes of action ought to have been joined together in one suit against the two different defendants. The two causes of action were clearly separate because the invalidity of the sale deed in favour of Zagadu could not have been established solely by proof of the invalidity of the sale deed in favour of Dagadu. Nor would proof of the invalidity of the sale deed in favour of Zagdu alone have sufficed to settle the invalidity of the sale deed in favour of Dagdu. They could not be supported by the same evidence and that was the test adopted in the case of Kashinath Ramchandra v. Nathoo Keshav. (1914) 38 Bom. 444 Moreover the two causes of action affected different defendants, There was, therefore, no legal necessity to join them in one suit, as neither claims under separate causes of action nor claims affecting different defendants are contemplated by the peremptory provisions of Order II, Rule 2 of the Schedule of the Civil Procedure Code. It would not have mattered even if the two separate causes of action had jointly affected the different defendants and had not involved a several liability of each of the two different defendants. For they would still have been beyond the contemplation of the peremptory provisions of Order II, Rule 2, though within the permissive provisions of Order II, Rule 3 of the Schedule to the Civil Procedure Code.
11. I have ventured to add these remarks as it seems to me essential for the proper determination of these somewhat difficult questions of non-joinder and mis-joinder that not only should the causes of action in each case be exactly comprehended but that a clear distinction should be maintained between the permissive nature of the provisions of Order I, Rule 3 and Order II, Rule 3 and the peremptory nature of the provisions of Order II, Rule 2 of the 1st Schedule to the Civil Procedure Code.