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Basanna Vs. Appa Rao and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal (H) No. 117 of 1956
Judge
Reported inAIR1959Kant227; AIR1959Mys227; ILR1958KAR853
ActsCode of Civil Procedure (CPC), 1908 - Sections 11- Order 2, Rule 2 - Order 6, Rule 17 - Order 13, Rule 2 - Order 41, Rule 25; Limitation Act, 1908 - Schedule - Articles 142 and 144; Specific Relief Act - Sections 42; ;Hyderabad Code of Civil Procedure (CPC) - Sections 31 and 37(1) - Order 2, Rule 2
AppellantBasanna
RespondentAppa Rao and anr.
Appellant AdvocateManohar Rao Jahagirdar, Adv.
Respondent AdvocateMohamed Zakaulla, Adv.
Excerpt:
- section 24: [anand byrareddy, j] application under section 24 for maintenance - marriage performed as per the provisions of the portuguese civil code application filed under section 24 of the hindu marriage act for maintenance by wife before the family court at belgaum objections by the petitioner/husband with regard to jurisdiction of the family court at belgaum to entertain the application - rejection of objections - challenge to question whether the portuguese family law or hindu law would be applicable to the parties and if the portuguese family law is applicable, which is the court having jurisdiction to decide the matter - held, there is no dispute that the parties were married according to the portuguese family law, that is applicable within the state of goa, and had set up.....mir iqbal hussain, j.1. this is a second appeal filed by the original plaintiff basanna against defendant appa rao who is the first respondent and somanna who is respondent 2. one shivabai widow of bhimanna was impleaded in the suit as second defendant. but as she died, her name was struck off in the trial court itself. plaintiff filed a suit in the court of the munsiff, gulbarga in o. s. no. 338/1 of 1952. he based his suit for possession of lands survey nos. 94, 96, 97 and 100 to the extent of half towards the north, situated in balgonda village, gulbarga taluk, and survey nos. 10 and 37 to the extent of one-third towards the south of the same village. he also prayed for a declaration of shikmi in respect of all the lands.2. the plaintiff in the former suit alleged that he is the.....
Judgment:

Mir Iqbal Hussain, J.

1. This is a second appeal filed by the original plaintiff Basanna against defendant Appa Rao who is the first respondent and Somanna who is respondent 2. One Shivabai widow of Bhimanna was impleaded in the suit as second defendant. But as she died, her name was struck off in the trial Court itself. Plaintiff filed a suit in the court of the Munsiff, Gulbarga in O. S. No. 338/1 of 1952. He based his suit for possession of lands survey Nos. 94, 96, 97 and 100 to the extent of half towards the north, situated in Balgonda village, Gulbarga Taluk, and survey Nos. 10 and 37 to the extent of one-third towards the south of the same village. He also prayed for a declaration of shikmi in respect of all the lands.

2. The plaintiff in the former suit alleged that he is the adopted son of one Bhimanna who was the original owner of the suit properties; that after adoption, he lived with the said Bhimanna and as such, as heir of Bhimanna, he was in possession of the suit properties. On the other hand, defendant 1 alleged that he is the adopted son of Bhimanna and not Basanna the plaintiff? After the death of Bhimanna defendant filed a suit against Bhimanna's widow Shivabai and obtained a consent decree for Shikmi in respect of the suit lands, as per order dated 21st Mehr 1336 F.

Plaintiff contended that the first defendant is not the adopted son of Bhimanna. The consent decree that was obtained by him was a fraudulent one and therefore, he filed a suit for a declaration of his adoption and to set aside the said decree obtained by defendant I against Shivabai, widow of Bhimanna. That suit was filed on the 15th of Aban 1336 F which was dismissed by the Munsiff on the 9th of Aban 1338 F. Plaintiff filed an appeal before the District Judge, Gulbarga. He failed even there as per the orders of the District Judge, passed on 30th Ardebahast 1339 F. Plaintiff took up the matter in appeal before the Sadar e adalat (Divisional District and Sessions Judge) Gulbarga.

3. By an order dated 28th Isfandar 1347 F. while dismissing the plaintiff's appeal, the Sadar e adalat held as follows:

1. That the plaintiff's adoption is proved:

2. That the defendant's adoption is not proved:

3. Plaintiff was not in possession of the suit properties and therefore, on that account the Sadar e adalat held that his suit for mere declaration under Section 42 of the Specific Relict Act was not maintainable.

4. Against this decision, defendant 1 filed a revision in the High Court of Hyderabad in Revision Petition No. 523 of 1347F. That revision petition was dismissed on 2nd of Behman 1349F.

5. Plaintiff, in the present suit states that the cause of action for his suit arose on the 28th of Is-fandar, 1347 F when the Sadar e adalat while upholding his contention dismissed the suit as not maintainable on the ground that he was not in possession of the properties.

6. Thus it is clear that the plaintiff's litigation has had various ups and downs. The present suit is filed by him on the ground that he is the adopted son of Bhimanna and in the present suit he has prayed for possession of the properties as well.

(GA) In the written statement of the first defendant, he has denied the plaintiff's adoption while affirming his own adoption to Bhimanna as valid. He further contends that the consent decree obtained by him against Shivabai widow of Bliimanna is a valid one and he is in possession of the property since 1335 Fasli and the plaintiff's suit is therefore barred by limitation. The other plea raised by the defendant is that the plaintiff not having prayed for possession in the previous suit, his present suit is vitiated by the provisions of Order II, Rule 2 of the Civil Procedure Code.

6B. Quite a number of issues were framed in this case which are as follows:

(1) Whether the plaintiff has got any right to sue?

(2) Whether there was any relinquishment of part of the claim by the plaintiff in his previous suit?

(3) Is the suit within limitation?

(4) Does the decision of the court with regard to the plaintiff's adoption operate as res judicata?

(5) Whether the plaintiff is the adopted son of Bheemanna?

(6) Does the decision of the court with regard to the adoption of defendant operates as res judi-cata? and if not,

(7) Is the defendant the adopted son of Bheemanna?

(8) Whether the plaintiff was in possession of the suit lands after the death of Bheemanna and therefore entitled to possession? and

(9) To what relief is the plaintiff entitled to.

7. Again the plaintiff's litigation had no smooth sailing. On the 10th of Abhan 1352 F. his suit was dismissed by the learned Munsiff who took into consideration issues Nos. 1, 2 and 3 only and held them against the plaintiff; but he did not decide the other issues. In appeal No. 53/4 of 1354F the District Judge of Gulbarga remanded the case for deciding all the issues as per provisions of Order 41 Rule 25, Civil Procedure Code, as per his order dated 4th Farwardi 1354 F. The defendant Bled a miscellaneous appeal to the High Court of Hyderabad against the remand order but that was dismissed by the High Court of Hyderabad on 7th Abhan 1354 F.

By a judgment dated 5th Mehr 1357 F. the learned Munsiff gave his findings on all the issues and those findings were in favour of the plaintiff. The defendant went up in appeal to the District Judge, Gulbarga who, by his order dated 5th Khurdad 1358 F- again remanded the case with a direction to give a fresh chance to the defendant to lead his evidence. The matter came up before another Munsiff in O. S. No. 338/1 of 1952 who by his order dated 30-10-1951 again decided all the issues in favour of the plaintiff. The defendant appealed against this judgment and decree before the District Judge, Gulbarga in Appeal No. 175/4 of 1952-53, who by his order dated 8-7-1952 allowed the appeal holding that the plaintiff's suit is hatred by the provisions of Order II, Rule 2 of the Civil Procedure Code and also barred by limitation. Against this judgment of the District Judge, Gulbarga the plaintiff-appellant filed this appeal before the erstwhile High Court of Hyderabad which has been transferred to this Court for decision after integration.

8. The main contentions urged by Shri Jagirdar the learned Counsel for the appellant arc:

(i) that the plaintiff's suit is not hit by the provisions of Order II, Rule 2 on the ground that the cause of action in the previous suit as well as in this suit are absolutely different,

(ii) that Article 144 of the Limitation Act applies to the facts of this case and therefore as the plaintiff has based his suit on title and not on the basis of possession and dispossession or discontinuance of possession as contemplated in Article 142 of the Limitation Act, hence as the defendant has not proved adverse possession for a period of 12 years prior to suit the plaintiff is entitled to succeed.

9. The important ground that has been raised before us is whether the plaintiff's suit is hit by the provisions of Order 2, Rule 2 of the Civil Procedure Code. As I have stated already the first suit of the plaintiff was for declaration of his title as the adopted son of Bheemanna and in that suit he did not pray for possession of the properties as he alleged that he was already in possession of the same. In that suit he contended that the decree obtained by defendant 1 against Shivabai is a collusive and a fraudulent one and therefore not binding on him. He prayed for Shikmidari on the ground that he was in possession of the property. In the present suit on the other hand the plaintiff prays for possession of the properties on the ground that the Sardar e Adalat Court has held that he is not in possession of the suit properties.

10. The question therefore to be considered is whether the cause of action in the former suit and the present suit are the same or different or whether the provisions of Order II, Rule 2 of the C. P. C. are applicable to the facts of the case. Order II, Rule 2 reads as follows;

'(i) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish anv portion of his claim in order to bring the suit within the jurisdiction of any court.

ii. where the plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.

(iii) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court to sue for all such reliefs, he shall not afterwards sue for any relief so omitted'.

11. An illustration is also given under this rule which is as follows:,

'A lets a house to B at an yearly rent of Rs. 1200/-. The rent for the whole of the years 1905, 1906 and 1007 is due and unnaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.'

12. The two important factors that have got to be considered in this connection are: (1) the nature of the cause of action; (2) significance of the term 'entitled to more than one relief in respect of the same cause of action'. Section 2 of the Code of Civil Procedure does not furnish any definition of the legal term 'cause of action'. But a comprehensive definition is found in a case reported in Mohamed Khaleel Khan v. Mahaboob Ali Mia . Their Lordships of the Privy Council have referred to quite a number of cases -- both English as well as Indian and given the connotation of the term 'cause of action'. They have stated as follows:

'The phrase 'cause of action' has not been de-fined in any enactment hut the meaning of it has been judicially considered in various decisions. In Read v. Brown (1888) 22 QBD 128, Lord Esher M. R. accepted the definition given in Cook v. Gill, (1873) 8 CP 107; that it meant 'every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does riot comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.'

13. Fry L. J. agreed and said, 'Everything which, if not proved, gives the defendant an immediate right to judgment, must he part of the cause of action'. Lopes L. J. said:

'I agree with the definition given by the Master of Rolls of a cause of action, and that it includes every fact which it would be necessary to prove, if traversed in order to enable a plaintiff to maintain his action.'

14. This decision has been followed in India. The term has been considered also by the Board in Mt. Chand Kour v. Partap Singh, 15 Ind App 156: ILR 16 Cal 98 (PC). Lord Watson delivering the judgment of the Board observed as follows:

'Now the cause of action has no relation whatever to the defence which may be set up by the defendant, nor docs it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set out in the plaint as the cause of action, or in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.'

No better and comprehensive definition of the term 'cause of action' could be given. Applying these, definitions it is necessary to find out what was the cause of action for the plaintiff in the previous suit and what was the cause of action in the present suit. As I have stated, in the previous suit the cause of action was for a declaration of his adoption and of his shikmidari on the ground that he was in possession of the properties while in the present suit, the cause of action is for possession of the suit properties on the ground that by the order of the Sardar e Adalat to which I have referred to previously, it was held that plaintiff was not in possession of the suit properties.

15. The next point to be considered is whether the two causes of action are the same as contended by Mr. Zakaulla, the learned Counsel lor the respondents or different as is contended by Mr. Jahagirdar, the learned Counsel for the plaintiff-, appellant. I have again to fall back on the principles laid down in the cases and which have been summarised by their Lordships of the Privy Council in the case of . Those principles are as follows:

'(i) The correct test in cases falling under Order II, Rule 2 is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit. (Munshi Buzlur Rahaman v. Shumshunnisa Begum, 11 Moo Ind App 551 (PC)).

(ii) Cause of action means, every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment (1888) 22 QBD 128.

(iii) If the evidence to support the claims is different, then the causes of action are also different. (Brunsden v. Humphrey, (1884) 14 QBD 141).

(iv) The cause of action in the two suits may bo considered to be the same if in substance they are identical. (1884) 14 QBD 141.

(v) Lastly, the cause of action has no relation whatever to the defence that may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour 15 Ind App 156 (PC).'

16. Applying the above principles I find that the cause of action in the two suits are distinct. The first suit has proceeded on the ground that the plaintiff is in possession of the property, while the second suit, is for possession of the suit properties. It has been held in the following cases that in such circumstances the plaintiff's suit is not barred or hit by the provisions of Order 2, rule 2 of the Code of Civil Procedure.

17. Moharaed Khan v. Shafi Mohamed AIR 1930 Sind 87 wherein it has been held that a dismissal of a suit for declaration of title under Section 42 of the Specific Relief Act and for an injunction to restrain the defendant from interfering with the plaintiff's possession on the ground that the plaintiff not being in possession ought to have asked for possession also is no bar to a subsequent suit for declaration of title and for possession. There, in the second suit, the plaintiff asked for possession because it was held that the plaintiff had not got possession just as in this case. Taking into consideration the different causes of action, their Lordships of the Sind High Court held that the suit is not barred by the provisions of Order 2, Rule 2 of the Code of Civil Procedure.

18. Could the plaintiff in the present suit have asked for possession in the previous suit is a point that arises for consideration. When he alleges that he was in possession of the property such a plea is not open to him as being incompetent. May be his allegation was subsequently found to be without a basis. But that does not alter the situation.

19. AIR 1930 Sind 87 follows amongst others, two decisions -- one of the Madras High Court re-ported in Saliman Sabih v. B. Hainan Sahib, ILR 88 Mad 247: (AIR 1915 Mad 888) and the other reported in Bande Ali v. Gokul Misir, ILR 34 All 172. ILR 38 Mad 247: (AIR 1915 Mad 888) holds as follows:

'The dismissal of a previous suit for declaration of title to certain properties on the ground that the plaintiff was found entitled to possession is no bar to a suit for possession based on the same title, as the cause of action for which the allegations in the plaint must be looked to is different in the two cases.'

Similar in effect is the decision reported in ILR 34 All 172 which arose under the old Civil Procedure Code. It was held by their Lordships of the Allahabad High Court as follows:

'Dismissal of a suit for an injunction in respect of certain properties upon the ground that a plaintiff has not proved his possession of the properly in respect of which the injunction is sought is no bar to a subsequent suit for possession of the same property.'

Their Lordships have further held as follows:

'We have several authorities to show that for a long time it has been accepted in this court and in other High Courts that the dismissal of the suits of this nature on the ground that the plaintiff is not or has not proved that he is in possession is no bar to a subsequent suit for possession.' and they have relied upon quite a number of authorities.

20. The case reported in Abdul Rashid v. Sachidananda Raj : AIR1939Cal523 holds as follows:

'Where plaintiff brought a suit for an injunction restraining the defendants from taking possession of certain properly that suit was dismissed on the ground that the plaintiff had already been dispossessed. Plaintiff brought a second suit for khas possession and for establishing his title to the properties. It was held that the cause of action that was put forward in the earlier suit was wrong. The provisions of Order 2, Rule 2 could not be invoked since the relief that was claimed in the second suit would not be claimed on the cause of action which was the basis of the earlier suit.'

As I have already stated, the relief for possession could not be claimed in the previous suit because he had alleged that he was already in possession of the properties.

21. One further decision is brought to our notice by the learned Advocate for the appellant and that is, a decision reported in Ganga Bai v. Babu, 36 Deccan LR 557 which also considers the principles of Order 2, Rule 2, C. P. C. (Section 31 of the Hyderabad Civil Procedure Code). In that case the connotation of the term 'cause of action' as well as the principles for deciding whether a case is hit by the provisions of Order 2, Rule 2, C. P. C. are considered in some detail.

22. It is not necessary for me once again to refer to the connotation of the term 'cause of action' as I have done so in detail while considering the case of the Privy Council. Regarding Order 2, Rule 2 (section 31 of the Hyderabad Civil Procedure Code), their Lordships of the Hyderabad High Court stated as follows:

'If plaintiff's previous suit has proceeded on a wrong cause of action, the plaintiff is at liberty to bring a fresh suit on a correct cause of action and the second suit will not bo barred by the provisions of Section 31 of the Hyderabad C. P. C.' Again they have stated:

'If the reliefs prayed for by the plaintiff in the first suit cannot be granted by the court, then, by a fresh suit he can pray for such reliefs as can be granted by the Court. The second suit is not barred. If, on the same facts two causes of action arise, the plaintiff is entitled to bring a separate suit in respect thereof. It is not necessary for the plaintiff to join all the causes of action in the same suit.' Lastly their Lordships have held:

'As per Section 31 of the Hyderabad Civil P. C. the test iii whether the previous suit and the present one are on the same cause of action or not. If they arc on different causes of action, the second suit is not barred by the provisions of Order 2, Rule 2, C. P. C.'

23. As against these decisions, there are a few others that have got to be considered, the most important of which is the decision of the Privy Council to which I have already referred to viz., AIR 1949 PC 78. In that case the plaintiffs filed O. S. 8 of 1928 claiming possession of the properties situated in Oudh on the ground that they were the heirs of Rani Barkathunnisa, the original owner thereof. On 29th January 1938, plaintiffs filed a second suit O. S. 2 of 38 claiming possession of the propertyof Shahajanpur against the same defendants as heirs of Rani Barkathunnisa.

A comparison of the reliefs claimed in both the suits showed that the reliefs in the form of declaration and possession were claimed against Mahaboob Brothers in both the suits. The second suit was contested on the main ground that it was barred by the provisions of Order 2, Rule 2, C. V. C. as the property in the second suit, viz., Shahajanpur property was not included by the plaintiffs in their previous suit No. 8 of 28. Their Lordships of the Privy Council held that

'as the causes of action in respect of the two properties were not different, the provisions of Order 2, Rule 2, C. P. C. applied to the facts.' They state further as follows; 'If a plaintiff fails to sue for those of the claims which he is entitled to make in respect of the cause of action in the first suit, then he is precluded from suing in a second suit in respect of the portion so omitted. Applying the rule to the facts of the case, their Lordships will have to consider what was the cause of action for the suit in O. S. 8 of 28 on which the plaintiffs founded their claim and whether they included all the claims which they were entitled io make in respect of the cause of action in that suit. If they failed to include all the claims then by force of Order 2, Rule 2 they are precluded from including the claim omitted in the second suit.'

Quoting the case of 11 Moo Ind App 551 (PC), they held that:

'The correct test in all cases of this kind is whether the claim in the new suit is in fact founded (in a cause of action distinct from that which was the foundation of the former suit.' Their Lordships held that 'the object of the rule is clearly to avoid splitting up of claims and to prevent multiplicity of suits'. Thus, it is clear from this judgment that the cause of action in the previous suit as well as in the present suit was the same. In the former suit, plaintiffs could have claimed possession of the Sahajanpur properties as well in the first suit. Therefore, their Lordships applying the provisions of Order 2, Rule 2, held that the second suif was barred.

24. The same principle rules in the other two cases viz., Krishnaji Ramachandra v. Raghunath Shankar : AIR1954Bom125 and Kali Setty Subbarayadu v. Balaramayya : AIR1955AP194 , Both the cases have followed the principle laid down in the leading case of the Privy Council reported in . In the Bombay case, his Lordship Dixit J. held that:

'Bar of Order 2, Rule 2 is to be looked to from the point of view of the plaintiff's claim and not from the point of view of the defence.' In that case two suits between the same parties were filed. The plaintiff's case was that he was the adopted son and he was entitled to possession of the properties in all the suits. His title was therefore, the basis of his adoption, The defence was that defendants 1 and 2 were entitled to remain it possession as the nearest heirs of the plaintiff's father Ramachandra. Considering the facts of the case it was held that the plaintiffs subsequent suit was barred.

25. In the case of Andhra Pradesh reported in : AIR1955AP194 his Lordship Subba Rao C. J. held that:

'Order 2, Rule 2 is obviously aimed against multiplicity of suits in respect of the same cause of action. Cause of action means, every fact which it will be necessary for the plaintiff to prove if traversed in order to support his right to judgment. If the evidence to support the two claims is different then, the causes of action are also different. Cause of action in the two suits may be considered to be the same if, in substance, they are identical.' On the facts of that case his Lordship held that as the plaintiff did not include the present claim which arose in respect of the same cause of action in the previous suit, he was barred by reason of Order 2, rule 2 from filing a separate suit in respect of the same cause of action. As I have stated his Lordship has followed the Privy Council case reported in .

26. Mr. Zakaulla the Teamed counsel for the respondent relics on the decision reported in Behramjee v. Waris Hussain, 32 Deccan LR 281. In that case their lordships of the Hyderabad High Court have held that 'under Section 37(1) of the Hyderabad Civil Procedure Code when plaintiff besides praying for declaration of his title could ask for consequential reliefs as well, but contents himself by asking for declaration alone, the Court will not grant him the relief of declaration. It it is found that he was out of possession and later prays for amendment to include the relief for possession in the suit and when permission is so granted, still he does not make the necessary amendment then his suit is to be dismissed. The principles of this case are not applicable to the facts of the present case.

27. The next decision that is relied upon by Mr. Zakaulla is the decision reported in Dwaraka Bai v. Prayag Bai, 37 Deccan LR 591. This case proceeds on the basis of Order 6, Rule 17, C. P. C. It was heI3 in that case that:

If the plaintiff who is manifestly out of possession intentionally keeps that fact concealed from the Court and avers that he has possession he should not afterwards be allowed to amend the plaint so as to include a prayer for possession.' The rule laid down in the said case is based upon considerations of equity and good conscience. Where plaintiff conies to seek justice and he himself does not follow the principles of justice in not stating the correct facts, he should not expect any justice from the court of law in his favour. It was further held in that case that:

'Delay due to laches defeats justice.' As I have stated the case probably proceeded on the basis of the amendment of the pleadings and also refers to the reliefs which could have been prayed for in the suit. The plaintiff should not be granted permission to amend the pleadings to include the prayer for possession. ' There is no evidence in the present case to show that in the first suit of the plaintiff he intentionally either by trick or by skilful pleading kept back the fact that he was not in possession of the properties but yet alleged that he was in possession. His main contention in the previous suit was that he was in possession of the properties and therefore, as the adopted son of Bhimanna, he was entitled to a declaration of his adoption and shikmidari. In 37 Deccan LR 591, as I have stated the relief for amendment of the pleadings was refused.

28. In the Full Bench decision of the Hyderabad High Court reported in Maruthi v. Ranganatha, LLR 1954 Hyd 575: ((S) AIR 1955 Hyd 1), their Lordships of the Hyderabad High Court while referring to this case held that 'the observations made in 37 Deccan LR 591 are too widely stated and are not binding and we differ from them'. In another place they have stated:

'We cannot countenance any extreme and rigid application of these rules.'

As I have stated the case reported in 37 Deccan LR 591 is clearly distinguishable from the facts of the-present case.

29. The other decision that is cited by Mr. Zakaulla in Subhan Ali v. Imami Begum, AIR 1922 Nag 129. In that case it was held by their Lordships of the Nagpur High Court as follows:

'Where a plaintiff in a previous suit prayed only for declaration and did not ask for possession which they were entitled to and ought to have asked, held that their failure to do so clearly precludes them from asking for it afterwards under Order 2, Rule 2, C. P. C. and makes the question of their right to that possession res judicata against them.' The facts of that case again are distinguishable from the facts of the present case. I lay emphasis a that case on the words 'were entitled to and ought to have asked for possession' In the case before us, the former suit proceeded on the basis that plaintiff was already in possession and therefore, there was no question of 'ought to have asked for possession'. As I have already stated any relief on that basis for possession, as he alleged that he was already in possession, would be incompetent.

30. Lastly in the case reported in Kashi Rai v. Mt. Kali Kueri AIR 1923 AU 554 Section 11 of the Code of Civil Procedure is considered. In that case plaintiff, out of possession sued for declaration that he be declared an occupancy tenant. His suit was dismissed on the ground that he did not substantiate his possession as occupancy tenant. He filed another suit for possession against the defendants. It was held that the suit was barred by res judicata; that he could not be allowed to contend in the second suit that the court should not have gone into the merits in the former suit as in that suit he would have failed only on the ground that the suit was for mere declaration, when he ought to have sued for possession as well. In that case the plaintiff had no possession of any share in the property either when he filed the first suit or when he filed the second suit and hence in the first suit, he ought to have prayed for possession of the property besides declaration of his title. Hence that case is also distinguishable from the facts of the present case.

31. One other interesting point arises in this case and that is this. The defendant has raised the plea that the plaintiff's suit is barred by Order 2, Rule 2, C. P. C. If that is so, the most important documents that have to be filed in the case were the pleadings in the previous suit which unfortunately have not been filed and particularly the plaint. In the absence of the plaint in the previous suit, how is it possible to determine whether the cause of action as pleaded by the plaintiff in tue previous suit was the same as the cause of action pleaded in the subsequent suit. In this connection Mr. Jahagirdar, the learned Advocate for the appellant relies on a decision reported in Ranfiaswamy Goimden v. Rangiah Gounder : AIR1955Mad545 . His Lordship Justice Rajagopala Iyengar of the Madras High Court has held as follows:

'When a party takes a defence like an objection under Order 2, Rule 2, C. P. C. it is essential that he should place before the Court best evidence to support such a plea. It is essential for the Court to know what exactly was the cause of action which was alleged in the previous action in order that he might be in a position to appreciate whether the cause of action alleged in the second suit is identical with the one that was the subject matter of the previous action. In the absence of these pleadings, the defendant ought not to be permitted to raise the plea of bar of a suit under Order 2, Rule 2.' This decision proceeds on the principle of placing before the Court the best evidence possible. In the present case also as the plea of Order 2, Rule 2 was taken by the plaintiff, it was incumbent on him to have placed before the Court for consideration the plaint in the previous suit. Not having done so, the defendant ought not to be permitted to raise the plea of bar of suit under the provisions of Order 2, Rule 2 in the present case, Taking into consideration the facts in the case as well as the decisions relied on by the learned counsel for the appellant as well as the respondent, one conclusion is possible and that is this, that the present suit of the plaintiff is not barred by the provisions of Order 2, Rule 2, C. P. C.

32. The nest question to be considered and which 1 consider in a very brief manner is the question of adoption of the plaintiff. No doubt there is an issue with regard to the adoption in the present suit. There is also a finding of the Munsiff of Gulbarga in O. S. 175/4 of 1931 that the plaintiff is the adopted son of Bhimanna. But to my mind it is not necessary to have either raised' the issue or considered the evidence in this regard because of the fact that this matter has been finally decided by the decision of the Sadar e adalat Gulbarga dated 28th Isfaudar, 1347 F. wherein it is held that the plaintiff's adoption is proved and the defendant's adoption is not proved. As rightly held by the learned District Judge in Appeal No. 175/4 of 1952-53 against which this present appeal has been filed the matter of adoption is res judicata. I consider that is a correct finding more so, because of the fact that against the finding defendant 1 filed a revision before the Hyderabad High Court in Revision Petition No. 523 of 1347 F. and his revision petition was dismissed.

33. The last matter to be considered is whether the plaintiff's suit is barred by the provisions of Article 142 of the Limitation Act. From the re-cords it is found that the suit of the plaintiff is based on his title and not on possession or discontinuance of possession. Again, Article 142 emphasises 'while in possession of the property plaintiff has been dispossessed or has discontinued possession'. I emphasise the term 'while in possession'. So far as the facts of this case are concerned, tha cause of action is based upon the order of the Sadar e adalat dated 28th Isfandar 1347 F. which held that plaintiff is not in possession of the properties. Therefore where can there be any question of 'while in possession', he was dispossessed.

As such the case of the plaintiff does not come within the purview of Article 142 of the Limitation Act. The Article that is applicable is Article 144--the residuary Article. If that is so, has the defendant proved adverse possession?, It is in evidence that Bhimanna the original owner of the property died in 1335 F. and thereafter, his widow Shivabai was in possession of the property. According to the pleadings of the defendant she died in 1345 F., while according to the allegations of the plaintiff she died in 1347 F.

Whichever might be the correct date, it does not matter because, when Shiva Bai according to the evidence, was in possession of the property and even if it is held that she died in 1345 F the defendant admittedly had no title to the property as his adoption to Bhimanna, the original owner was not upheld and, therefore, the defendant can be regarded only as a trespasser and nothing more; he cannot tack on the possession of another person who herself had no right to the property, like Shivabai. Hence the suit having been filed on the 31st ot Ardebehast 1349 F. the defendant has not proved that he was in adverse possession of the property for a period of more than 12 years prior to suit.

34. Apart from that even applying Article 142 of the Limitation Act to the facts of this case, as per the evidence, it is found that the defendant was in possession of the property from the year 1343 F. or at the most from 1340 F. which evidence has been accepted by the learned Munsiff who on that ground has held that even applying Article 142 of the Limitation Act to the facts of this case, the plaintiff's suit is well within time. I have no reason to differ from the finding of the learned Munsiff in this regard. No doubt the learned Counsel appearing for both the parties have placed quite a number of decisions bearing upon Arts. 142 and 144 of the Limitation Act. In view of the reasoning given above, I think it is superfluous to examine those decisions.

35. In the result, I consider that the plaintiffs appeal should be allowed. While going through the facts of the case I was wondering whether the plaintiff had gone to the Court rather at an inauspicious time because he never had any smooth sailing in the course of his litigation. Though he was declared to be the adopted son of Bhimanna and as such entitled to the property of Bhimanna as of right, he has been denied that relief. I trust the decision in this appeal will be a panacea to all his troubles and he will reap the fruits of the long drawn litigation to which he was a party.

36. In the result the judgment and decree passed by the learned District Judge, Gulbarga in appeal No. 175/4 of 1952-53 is set aside and the plaintiffs suit is decreed. So far as the costs are concerned we order that each party should bear his own costs of this appeal.

37. Ahmed Ali Khan, J.

I agree.

38. Appeal allowed.


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