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Ram Bharose Vs. BaramdIn and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1939All584
AppellantRam Bharose
RespondentBaramdIn and ors.
Excerpt:
.....case there is identity of cause of action as well as identity of the relief claimed. in both the suits the plaintiff pleaded that he was dispossessed in june 1933 from 3 bighas, 7 biswas but enjoyed possession over 10 biswas. from a perusal of the judgment of the lower appellate court, it appears that the court below was in error in saying that the plaintiff in his plaint stated that he was dispossessed from plot 66 in the year 1933. as stated above, the plaintiff in both the plaints clearly stated that he was in possession over plot 66 but was dispossessed from other plots. the court below no doubt has found that the plaintiff was entitled to joint possession over plot 66 but he lost that right because he was precluded from bringing the present suit as he failed to obtain permission..........case there is identity of cause of action as well as identity of the relief claimed. in both the suits the plaintiff pleaded that he was dispossessed in june 1933 from 3 bighas, 7 biswas but enjoyed possession over 10 biswas. this 10 biswas according to learned counsel for the appellant is represented by plot 66. in the first plaint all the plots described in the present plaint were enumerated. under the circumstances there cannot be the least doubt that the plaintiff is precluded from bringing a fresh suit. learned counsel for the appellant however contends that the learned civil judge has found that the plaintiff was in possession over plot 66 in 1933 but was dispossessed some time later. from a perusal of the judgment of the lower appellate court, it appears that the court below was.....
Judgment:

Mohammad Ismail, J.

1. This is a plaintiff's appeal arising out of a suit brought for the recovery of joint possession to the extent of a moiety of the plots described in the plaint. The suit was resisted by the defendants on several grounds. The Court of first instance decreed the suit but the lower Appellate Court reversed the decree of the trial Court. The plaintiff now comes to this Court in appeal. It appears from the finding of the lower Appellate Court which is not seriously disputed before me by the respondents that the parties are cosharers to the extent of one moiety in khata khewat No. 18. It follows therefore that the plaintiff was fully entitled to enjoy possession of the plots in dispute to the extent of his share. It further appears from the finding of the Court below that five of the plots in dispute namely, 275/1, 275/2, 275/3, 266/1 and 266/2 are in possession of the defendants as mortgagees. The plaintiff's suit with respect to these plots is premature and was rightly dismissed. Learned Counsel for the appellant contends that the decree of the Court dismissing his suit is in very wide terms and may possibly be interpreted against him if a suit for the redemption of the mortgage is instituted by the plaintiff. In my opinion, this apprehension is not well founded. The plaintiff in the present suit ignored the mortgage in favour of the defendants and brought the suit for joint possession over the plots in dispute. Now that it has been found that the defendants are in possession as mortgagees it will certainly be open to the plaintiff to institute a suit for the redemption of the mortgage. If and when such a suit is instituted, it will be for the defendants to raise such pleas as may be open to them. I am not called upon to express any opinion with regard to the merits of the case that may be instituted by the plaintiff for the redemption of the mortgage. There is no doubt however that such a suit will be maintainable and it will not be barred by the provisions of Order 23, Rule 1.

2. The next question that has been canvassed at the Bar relates to the decision of the Court with respect to issue 2. It appears that the plaintiff brought a suit in 1933 for joint possession over the plots in dispute on the allegation that he was entitled to half the share in the plots in dispute being the owner to the extent of half in khata khewat No. 18. It was alleged in para. 3 of the plaint that the defendants illegally ejected the plaintiff in June 1933 from 3 bighas 7 biswas out of 3 bighas 17 biswas appertaining to the plaintiff's share. The plaintiff asserted that he was in possession of only 10 biswas share and was out of possession with respect to the remaining share. He accordingly claimed joint possession over the entire 3 bighas 17 biswas including 10 biswas which ac-cording to the plaint was in his possession. This suit was withdrawn but no permission to bring a fresh suit was obtained from the Court under Order 23, Rule 1, Sub-rule (2). The plaintiff instituted the present suit in 1934 and made similar allegations as contained in the previous plaint. In para. 3 of that plaint it was stated that the defendants had illegally dispossessed the plaintiff in June 1933 from 3 bighas, 7 biswas land and that only 10 biswas remained in his possession. The learned Civil Judge dismissed the suit on the ground that it was barred by the principle of res judicata. In my opinion, the Court below has taken an erroneous view of law on this point. Section 11, Civil P.C., which contains the rule of res judicata has no application to the facts of this case. The suit would be barred if certain conditions-existed according to the provisions of Order 23, Rule 1, Sub-rule (3), inasmuch as no permission was obtained by the plaintiff from the Court for the institution of a fresh suit. Learned Counsel for the appellant however contends that in view of the finding of the Court he is entitled to bring the present suit because the cause of action for the pre-sent suit has accrued since the withdrawal of the first suit. It is further contended that the expression 'subject-matter' finding place in Rule 3 does not mean identity of property but refers to the identity of causes of action. The expression 'subject, matter' has not been defined in the Civil Procedure Code. It however has been subject of consideration in numerous rulings. In Singha Redddi v. Subha Reddi (1917) 4 A.I.R. Mad. 512 it was held:

Where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit and the plaintiff in the second suit is not debarred from contesting the allegations made by the defence in the first suit.

3. In Achuta Menon v. Achutan Nayar (1898) 21 Mad. 35 the learned Judge refer, ring to Anderson's Dictionary of Law held that the term 'matter' in a context like that in Section 373 means 'the subject of legal action, consideration, complaint or defence or the fact or facts constituting the whole or a part of the ground of action or defence. The provisions of Section 373 have been reproduced in Order 23, Rule 1 with slight modification. In 56 Mad 1633 it was held that the expression 'subject-matter' means series of acts or transactions alleged to exist giving rise to the relief claimed. The same view has boon taken in several other cases in different; High Courts. Applying the principle of law laid down in the aforesaid cases it appears to me that the present suit is clearly barred by the provisions of Order 23, Rule 1, Sub-rule (3), because in the present case there is identity of cause of action as well as identity of the relief claimed. In both the suits the plaintiff pleaded that he was dispossessed in June 1933 from 3 bighas, 7 biswas but enjoyed possession over 10 biswas. This 10 biswas according to learned Counsel for the appellant is represented by plot 66. In the first plaint all the plots described in the present plaint were enumerated. Under the circumstances there cannot be the least doubt that the plaintiff is precluded from bringing a fresh suit. Learned Counsel for the appellant however contends that the learned Civil Judge has found that the plaintiff was in possession over plot 66 in 1933 but was dispossessed some time later. From a perusal of the judgment of the lower Appellate Court, it appears that the Court below was in error in saying that the plaintiff in his plaint stated that he was dispossessed from plot 66 in the year 1933. As stated above, the plaintiff in both the plaints clearly stated that he was in possession over plot 66 but was dispossessed from other plots. The Court below no doubt has found that the plaintiff was entitled to joint possession over plot 66 but he lost that right because he was precluded from bringing the present suit as he failed to obtain permission of the Court when he withdrew the first plaint.

4. It is true that the pleadings in this country are often defective but the question whether the plaintiff was or was not in possession over plot 66 was a question of fact and it was the duty of the plaintiff if ho wanted to avoid the application of Order 23, Rule 1, to mention clearly that he was dispossessed from this plot also when he brought the second suit. It may be that at the trial the plaintiff led evidence to prove ft hat he was ejected from that plot also. If that wore a fact, he should have made an application for the amendment of the plaint. This however was not done. In the circumstances the plaintiff is not entitled to challenge the decree of the Court below on this point.

5. In the result the appeal fails and is dismissed with costs. There is no force in the cross-objection and it is dismissed with costs. Leave to appeal under the Letters Patent is refused.


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