1. This second appeal has come to us on a reference made by our learned brother, Chandrasekhara Sastry, J. The question which has to be necessarily answered in this enquiry is whether the plaintiff, who had earlier instituted a suit for mesne profits of an immovable property and had omitted to sue for recovery of possession, if institutes a second suit for recovery of possession, such a suit is barred by Order 2, Rule 2 C.P.C. The material facts in order to appreciate the merits of the contention in this regard may briefly be stated.
2. One Abburi Venkata Subbarayudu had two wives. By his first wife he had one son, Raghava Rao and one daughter, Damayanthamma Raghavarao was married, but did not have any issue. He subsequently died leaving his widow, The plaintiff is the son of Damayanthamma, the daughter. The 1st defendant who is the appellant before us is the second wife.
3. The plaintiff basing his claim on a will dated 29-8-1932 executed by Abburi Venkata Subbarayudu under which three godowns situated in Tenali were given to the daughter-in-law Venkata Ramamma for her life and vested remainder to the plaintiff filed a suit for mesne profits against the 1st defendant and the tenants (O. S. No. 36/47 on the file of the District Munsif's Court, Tenali.) The suit was resisted by the 1st defendant but was subsequently decreed. It was alleged that subsequent to the execution of this will under which various properties were disposed of, Venkata Subbarayudu executed some settlement deeds in September, 1942, under which the second wife as well as the daughter-in-law got some properties with immediate effect. The daughter-in-law thus surrendered her life interest in the suit property and accelerated the vesting of the property in the plaintiff Abburi Venkata Subbarayudu died on 29-6-1943
4. The plaintiff filed another suit in 1949 O. S. 145/49 in the Court of the District Munsif, Tenali against the 1st defendant and certain others for recovery of mesne profits. He had also sought permanent injunction restraining the 1st defendant from collecting rents of the suit godowns. That suit again in respect to mesne profits was decreed.
5. It must be recalled that in O. S. 52/48 where the will of 1932 executed by Abburi Venkata Subbarayudu was disputed by the 1st defendant setting up another will of 27-6-1943, it was found that the will of 1943 set up by the 1st defendant was false and that the will of 29-8-1932, Ex. A. 5, was a genuine will. The matter ultimately was carried to the High Court in second appeal but the said decision was affirmed.
6. The plaintiff has now instituted the present suit for the recovery of possession. We are concerned only with one issue raised by the 1st defendant in this second appeal. It is contended by Mr. K. Krishnamurthy, the learned counsel for the appellant, that the plaintiff was setting his claim to the suit property on the basis of the will, Ex. A. 5, that the right to recover immoveable property had already accrued to him when the first suit for mesne profits was instituted and that having omitted to sue for the recovery of possession could not now in the face of Order 2, Rule 2 C.P.C. institute the suit for recovery of possession.
7. Mow Order 2 relates to the frame of suit, Rule 1 of that order enacts that every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. It will thus be seen that Rule 1 gives, so to say, a broad direction to frame a suit in order to get all subjects in dispute between the parties finally disposed of, so that further litigation concerning such subjects in dispute may be prevented. Rule 2 directs the joining of claims and demand of reliefs if such claims or reliefs are based on one and the same cause of action in one suit only. Rule 2 is thus an extension of the principle laid down in Rule 1. Rule 2 also provides a penally. It states that if a plaintiff omits to sue for all the reliefs to which he is entitled in respect of the same cause of action, unless he has done so with the permission of the court, he shall not be entitled to sue afterwards for any such relief which he had omitted.
Rule 3 permits a plaintiff to unite in the same suit several causes of action subject of course to other provisions, Although Rule 3 thus permits the plaintiff to unite several causes of action in the same suit against the defendant, Rule 4 provides an exception to this broad permission. Rule 4 enacts that no cause of action shall without the leave of the Court be joined with a suit for the recovery of immovable property. There are, however three exceptions to this broad prohibition. The first of such exceptions is that claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof can be joined with a suit for the recovery of immovable property. The third exception states that claims in which the relief sought is based on the same cause of action can also be joined with a suit for the recovery of immovable property.
8. Let us in this background read Rule 2 of Order 2. In so far as it is relevant it is in the following terms:
2(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the causes of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Where a 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.
(3) 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.' A plain reading of this Rule would indicate that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.
9. In case 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.
10. This Rule is based on the principle that the defendant should not be vexed twice for the same cause. This rule is directed against the twin evils i.e., splitting up of claims and splitting of remedies. A close reading of this Rule would make it abundantly plain that it applies only to a claim based on one cause of action. The Rule therefore does not preclude a second suit if it is based on a distinct and separate cause of action. It is thus clear that in order to attract the said Rule, two conditions must be satisfied, firstly, that the previous suit as well as the present suit arise out of the same cause of action, and secondly, that the suit must be between the same parties.
11. To apply the Rule to the facts of this case we have to consider whether the cause of action on the foot of which suits for mesne profits were instituted, and the cause of action on the basis of which the present suit for recovery of immovable property is instituted, are substantially identical or they are distinct and separate. It is obvious that if the cause of action for both the suits is substantially identical, then the present suit would come within the mischief of Order 2, Rule 2. If on the other hand the causes of action for the two suits are distinct and separate, it is obvious that the present suit would not be hit by Order 2, Rule 2.
12. Now the cause of action means, as is clear from several decided authorities, every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. It 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 entirely refers to the grounds set out in the plaint as to he 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. It is of course obvious that what matters in such cases is the substance and not the mere form. It is possible that causes of two suits might be the same though the facts alleged may not be exactly identified in the two cases. Similarly the facts alleged in the two cases may substantially run to an extent parallel; nevertheless the causes of action for the two suits may be different. Simply because certain matters or facts are common, it cannot in all cases be said that the cause of action for the two suits would be the same. The said test in this respect although may be accepted as a rough test, it cannot however be considered as conclusive test for the purpose of Order 2 Rule 2. Likewise the test whether same evidence would sustain both the suits may be a good working test, but it is also not certainly conclusive, and it cannot be applied as a rule of thumb.
13. It does not seem to us to admit of any doubt that the cause of action for recovery of possession is not necessarily identical with the cause of action for recovery of mesne profits. The opening words of Rule 4 of Order 2 clearly point out that Order 2 itself treats the said two causes of action separately. That is the reason why it provides specially for joining claim for mesne profits in a suit for recovery of immovable property. But for such an express exception the general prohibition of uniting any other cause with the suit for recovery of immoveable property would have come into operation even in such cases. The last exception in Rule 4, i.e., claims in which the relief sought is based on the same cause of action, can be joined with a suit for recovery of immovable property, also lends considerable support to this conclusion. Rule 2 as seen above directs the inclusion of all claims in a single suit based on the same cause of action. That principle would govern a suit to recover immovable property.
The Legislature however did not want to permit the combination of any other cause of action with a suit for recovery of immovable property and in order to give effect to this legislative policy Rule 4 was enacted. Certain exceptions to this general prohibitory Rule were however considered necessary and thus apart from providing that in a suit for recovery of immoveable property other claims arising out of the same cause of action can be joined, it specifically provides that a claim for mesne profits or arrears of rent in respect of the property claimed can be joined with the suit for recovery of immoveable property. The irresistible conclusion, there-fore, which must follow from the said set of Rules, is that a cause of action for recovery of immovable property is distinct and separate from a cause of action for mesne profits of the property claimed.
14. It is perhaps relevant to mention in this connection that for a suit for recovery of immovable property twelve years limitation is prescribed, but for recovery of mesne profits the limitation fixed is three years. Thus the dates of the accrual of causes of action in both these cases would be different for the enforcement of which different periods of limitation are prescribed. Mesne profits accrue from day to day, and the cause of action in such a case therefore, would be a continuing one and arises out of the continued misappropriation of the profits to which the plaintiff is entitled. It is also pertinent to note that the facts which would constitute the cause of action in case of mesne profits are not necessarily identical in a suit for recovery of immovable property. In a suit for possession if the plaintiff proves his title and possession within 12 years of the suit that would normally be enough to decree his suit.
But in a suit for mesne profits he has not only to prove his title but has also to prove the period during which the unlawful possession of the defendant continued and the amount of mesne profits to which he is entitled. It is obvious that evidence in these two cases would be different. Although the rights to possession and mesne profits are found to be vested often in the same person as owner of the property, these rights may be, and very often are, vested in different persons. An infringement of a right to possession as owner does not necessarily involve an infringement of the right to get mesne profits. An infringement of right to possess immoveable property may entitle the possessor to sue for the remedies; viz., for damages for trespass (not by way of mesne profits) and for recovery of possession, but dons not of itself entitle him to claim mesne profits.
An infringement of the right to enjoy property by taking profits, entitles the person so permitted to sue for compensation for the loss sustained, that is, for the profits actually received by the defendant, or what might with due diligence have been received by him. It will thus be clear that the two wrongs give rise to two distinct causes of action, the first arising when the act of trespass is committed and the second when the mesne profits should have been receivable by the plaintiff but for the defendant's wrongful act. It should in this regard be remembered that there is a distinction between splitting of some cause of action into two or more suits and instituting different suits upon distinct causes of action. The present type of suit undoubtedly falls in the latter category and not in the first.
15. Even when we look back to the legislative history of the provisions of Order 2 our view gets strengthened that the cause of action for the recovery of mesne profits, and that these causes have always been treated as separate causes of action.
16. At common law claims for recovery of immoveable property and claims for mesne profits were treated as separate causes of action. Before the Common Law Procedure Act, 1852, no suit for mesne profits could lie unless a decree for recovery of immoveable property is obtained. Section 10 of the Code of 1859 expressly provided that a claim for the recovery of land and a claim for mesne profits arising out of such land should be deemed to be distinct causes of action within the meaning of Sections 8 and 9 which dealt with joinder of causes of action in the same suit. It is of interest to note that when the Civil Procedure Code, 1887 was enacted, the judicature Act and the rules of practice framed thereunder had come into force in England. The language of these rules was in many instances substituted for the language of the Code of 1859 and in this way Section 10 dropped out and it was replaced by Section 44 (now Order 2 Rule 4 of the Code of 1908). The language of this section was taken from Order 17 Rule 2 of the English Rules. The language of Section 44 indicates that a cause of action entitling a plaintiff to claim mesne profits is distinct from a cause of action entitling him to sue for recovery of immovable property. It will thus be clear that although there have been some verbal changes here and there as and when the Civil Procedure Code was remodelled, yet the policy underlying these provisions remained the same, and in effect Order 2, Rule 4, like its ancestor Section 10 of the Code of 1859, treat these two causes of action as distinct and separate. That this is the correct view of law gathers support from Tirupati v. Narasimha, (1888) ILR 11 Mad 210. That decision follows Monohur Lall v. Gouri Sunkur, (1883) ILR 9 Cal 283, which in turn followed a Full Bench decision of that Court.
17. Gutta Saramma v. Maganti Ramanedu (31 Mad 405) followed the earlier decision which again was followed by another Bench of the Madras High Court in Muthukaruppa Kothan v. Veerayya Chetty, (1909) 5 Mad LT 220(2).
18. This question was considered by a Full Bench of the Madras High Court and in Ponnammal v. Ramamirda Aiyar, ILR 38 Mad 829: (AIR 1915 Mad 912) (FB), following the earlier decisions it was decided that a claim for possession and a claim for mesne profits are separate causes of action and have always been so treated under the Code of Civil Procedure.
19. Ramiah v. Thathiah, AIR 1937 Mad 849 considered the Privy Council ruling in Naba Kumar Hazra v. Radhashyam Mahish, AIR 1931 P. C. 229, and after explaining it followed the earlier decision of the Madras High Court. The same argument was again considered by another Bench of the Madras High Court in Venugopal Pillai v. Thirugnanavalli Ammal, AIR 1940 Mad 934 and the same conclusion was reached.
20. Apart from the Madras High Court a special Bench of the Allahabad High Court considered a similar contention in Ram Karan Singh v. Nakchhad Ahir, AIR 1931 All 429 (SB). In that case the claim for mesne profits related to a period subsequent to the institution of the previous suit. It was held that such a claim was based on a different cause of action and was not barred by the provisions of Order 2, Rule 2. The decision elaborately considered several aspects of this question.
21. We would do well to refer to a Full Bench decision in Raja Bikrama Singh v. Prabdial, (1889) 129 Punj. Re. 1889 P. 452 (FB). It was held that wrongful ouster and wrongful possession of profits constitute distinct and separate causes of action. Similar is the view held by another Full Bench in Protap Chunder Burooah, v. Ranee Surno Moyee, (1869) 13 Suth WR 15 (FB).
22. It will thus be clear that the predominant view of several High Courts right from 1888 till this day has consistently been that the cause of action for a suit for recovery of immoveable property is distinct from the cause of action for the recovery of mesne profits.
23. Mr. K. Krishnamurthy relying upon Mohammad Khalil Khan v. Mahbub Au Mian (1948) 2 Mad LJ 318: (AIR 1949 PC 78) argued that if the tests laid down in the said case are applied to the facts of the present case, the causes of action in two suits would be found to be identical. His contention was that if the facts in the two suits as stated in the plaint of the two suits are kept side by side, it would be clear that the cause of action is substantially identical in the two suits. We do not think that this argument can prevail. The Privy Council after considering various cases till then decided summarised the principles laid down in those cases in the following manner.
(1) The correct test in cases falling under Order 2, 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. (Moonshee Bazloor Ruheem v. Shumsunnissa Begum, (1867) 11 Mad Ind App 551 at p. 605 (PC).
(2) The 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 (Read v. Brown (1888) 22 Q. B. D. 128).
(3) If the evidence to support the two claims is different, then the causes of action are also different. Brunsden v. Humphrey, (J884) 14 Q. B. D. 141.
(4) The causes of action in the two suits may be considered to be the same if in substance they are identical (1884) 14 Q. B. D. 141.
(5) The cause of action has no relation whatever to the defence that may be set up by the defendants nor does 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. (Chand Koer v. Partab Singh, (1883) 15 Ind App 156 (PC)). We have already discussed now the two causes of action for these two kinds of suits are distinct and separate. While considering that, we also discussed the tests referred to in the said Privy Council decision. It must be noted in this connection that the said decision does not decide anything new, but merely sums up the principles so far laid down. Applying these tests to the facts of this case, as has been done above, we do not think that merely because the facts in the two cases are similar to a large extent, the causes of action in the two suits would be substantially identical. The Privy Council case did not relate to the suit for recovery of immovable property and another suit for recovery of mesne profits. We, therefore, see no conflict between the series of decisions referred to above and the said Privy Council ruling. We have already stated that an earlier decision of the Privy Council was elaborately considered by the Madras High Court and such an was repelled.
24. As no other argument was advanced our concluded opinion is that the present suit is hot barred by Order 2 Rule 2 C. P. C.
25. This second appeal therefore is dismissed with costs of 1st respondent.