1. The Court below dismissed the plaintiff's suit as barred by Section 43 of the Civil Procedure Code of 1882 and hence this appeal.
2. The suit was brought by the plaintiffs for recovery of possession Mouza Kutabpur in, the district of Bareilly and also for mesne profits. According to the plaintiff's case. Rai Balak Ram, Raja Ratan Singh and Kunwar Daulat Singh were members of a joint Hindu family subject to the Mitakshara Law and owned ancestral properties including the property in dispute. Rai Balak Ram died in 1843 and Raja Ratan Singh became a convert to Muhammadanism in 1845 and from that time ceased to have any right to or interest in the joint family property. His son Daulat Singh thereupon became absolute owner of all that property. Daulat Singh died on the 8th of January 1851 leaving his widow Rani Sen Kunwar and his daughters Rani Chhatar Kunwar, and Rani Mewa Kunwar as his heirs. Rani Raj Kunwar, the wife of Raja Ratan Singh and Khairati Lal, son of Raja Ratan Singh's daughter, were also alive and in consequence of litigation between Rani Sen Kunwar and Rani Raj Kunwar, all the estate in Rohilkhand remained for a long time in charge of the Court of Wards. Rani Sen Kunwar died on the 9th of November 1857 and Rani Raj Kunwar died on the 17th of November 1858 and thereupon Rani Chhatar Kunwar and Rani Mewa Kunwar became entitled to the whole estate for their lives. Under an agreement of the 21st of July 1860, Rani Chattar Kunwar and Rani Mewa Kunwar gave 7 1/2 annas out of 16 annas of the said properties to Khairati Lal and themselves retained 8J annas. Rani Chhatar Kunwar died childless on the 13th of April 1866 and Rani Mewa Kunwar became owner for life of the whole of the property left by her father. Khairati Lal died on the 19t.h of March 1866, leaving Hulas Kunwar his widow, Achchan Kunwar his daughter and Inait Singh his daughter's son him surviving. These three persons are all dead and Partab Singh is their heir. Out of the 7 annas 6 pies share of the said property Achchan Kunwar and Inait Singh sold the whole of Mouza Kutabpur, which is the subject/matter of this suit, to the defendant Musammat Sirajunnissa Begam. Rani Mewa Kunwar died on the 26th of March 1899 and the plaintiffs claiming to be entitled to the property of Daulat Singh by right of inheritance instituted the suit out of which this appeal has arisen.
3. A number of defences were set up by the defendant and amongst others a plea that the suit was barred by Section 43 of Act No. XIV of 1882.
4. The basis of this defence was the fact that in 1904 the plaintiffs sued to recover other portions of the property of Daulat Singh which Rani Chhatar Kunwar and Rani Mewa Kunwar gave to Khairati Lal under the agreement of the 21st of July 1860 and did not include in that suit the property now sought to be recovered. This plea found favour with the learned Subordinate Judge. He held that the cause of action for this suit as also for the previous suits in 1904 was the alienation of a 7 1/2 annas share out of 16 annas in favour of Khairati Lal and that the plaintiffs were bound to bring only one suit for recovery of the whole of the property transferred to Khairati Lal. He accordingly dismissed the plaintiff's suit without determining any of the other issues raised in it.
5. We are wholly unable to agree in the view taken by the learned Subordinate Judge. Section 43 is directed against two evils, namely, the splitting of claims and the splitting of remedies in respect of one cause of action and is founded on the maxim that no one shall be twice vexed for one and the same cause.
6. In order that the section may apply, not merely must both suits arise out of the same cause of action but they must be between the same parties or between parties under whom they or any of them claim, see Balmakund v. Sangari 19 A. 379, Hingu Lal v. Baldeo Ram 24 A.L.J. 121 : A.W.N. (1907) 36 : 29 A. 267. In the case before us the defendant was no party to any of the earlier suits nor were any of the earlier suits between parties under whom she claimed. The property in dispute in the present litigation was not in dispute in any of the earlier suits. The decisions relied on by the learned Subordinate Judge do not support his view. In Parbati Kunwar v. Mahmood Fatima 4 A.L.J. 121 : A.W.N. (1907) 36 : 29 A. 267, the suit was instituted by the plaintiffs for possession of a share of their father's property part of which had passed into the hands of transferees. The transferors as well as the transferees were impleaded in the suit. It was contended that the suit was multifarious, that each defendant having disturbed plaintiff's possession as to a particular portion of the property independently of the other defendants, the plaintiff had a separate cause of action as against each set of defendants and that the suit was bad for multifariousness. This contention was repelled, the Court of which one of us was a member holding that the plaintiffs had only one cause of action, namely, the right on the death of their father to recover their shares of his property and that cause of action accrued to them upon their father's death. This case is clearly distinguishable from the present case.
7. The next case relied upon by the Court below is Kubra Jan v. Ram Bali 30 A. 560 : A.W.N. (1908) 235 : 5 A.L.J. 647 : 4 M.L.T. 392. In that case the claim of the plaintiff was to recover from her brother, her co-heir, and transferees from him her share of the property of her father which was situate in the district of Bareilly and also in the district of Bara Banki in Oudh. The brother had transferred the property in Bareilly to the defendants Nos. 2-8 and the property in the district of Bara Banki to persons from whom the defendant-respondent Ram Bali acquired it by virtue of a decree for pre-emption. The suit in regard to the Bareilly property was compromised with the result that the claim in respect of it was abandoned and the suit proceeded as regards the Bara Banki property only. The contention in the case was that the suit was bad for multifariousness. This contention was repelled, it being held that there were not two causes of action one against the plaintiff's brother and the other against the transferees but a single cause of action namely the infringement of the plaintiff's right by her brother out of which the claim of the other defendants arose. This is also unlike the present case.
8. In Ishan Chander Hazra v. Bameswar Mondol 24 C. 831, also relied on by the Court below, a suit for ejectment was brought by the plaintiffs against several defendants who set up various titles to different parts of the land claimed and it was contended that the suit was bad for misjoinder of causes of action. It was held, reversing the decree of the District Judge, that the suit was not bad for multifariousness, the plaintiff's cause of action being that there was only one cause of action, namely, the right of the plaintiffs as reversioners on the death of a previous owner to possession of the lands.
9. This also is unlike the present case. It does not, moreover, follow that because the plaintiff was held entitled, to maintain one suit for recovery of all the property to which he was entitled, that he could not have maintained separate suits for distinct portions of the property in the possession of different parties.
10. A similar observation may be made in respect of the decision in Nundo Kumar Nasker v. Banomali Gayan 29 C. 871. The other decisions relied upon by the learned Subordinate Judge do not appear to us to hold his view.
11. We may quote the language of one of us in the judgment in the case of Balmakund v. Sangari 19 A. 379 as to the meaning of Section 43. The passage is as follows: 'It is clear that in order that the said section may be applicable two things are essential, first that both the suits must arise out of the same cause of action and secondly that they must be between the same parties or between parties under whom they or any of them claim. Unless the cause of action be the same, there cannot be an omission or relinquishement of any portion of the claim which the plaintiff is entitled to make in respect thereof and unless the defendant be the same person or his representative in interest, no one will be twice vexed for the same cause. A plaintiff's cause of action is not only the right which he asserts but the infringement of that right by the defendant, where the plaintiff's right is infringed by more persons than one and by different acts done separately by each of them, the plaintiff has a separate cause of action against each of those persons. The omission, therefore, to implead one of them in a suit brought against another cannot bar a second suit against the person not so impleaded. Section 43 appears in a Chapter of the Code which relates to the frame of a suit and not to the array of parties and this circumstance also shows that it has no application where the parties to the two suits are not the same persons or. their representatives in interest.' In the case of Jehan v. Saibak 1 Agra (F.B.) 109, a Muhammadan lady sold portion of her deceased husband's property to A and afterwards sold another portion to B. The heirs of the husband sued the widow and B to set aside the alienation to the latter and they subsequently sued the widow and A to set aside that alienation made in his favour. It was held that the second suit was not barred. This supports the view which we take. We may further point out that the parties to the former suits, who were transferees of other portions of the property, had and could have no concern with the claim for mesne profits made in this suit. We, therefore, are of opinion that the Court below was wrong in dismissing the plaintiffs' suit.
12. We therefore, allow the appeal. We set aside the decree of the Court below and inasmuch as the suit was determined on a preliminary point and we have overruled the Court below upon that point, we remand the suit under the provision of Order 41 Rule 23 of the Code of Civil Procedure with directions that it be re-admitted in the file of pending suits in its proper number and be disposed of according to law. The plaintiffs-appellants will have the costs of this appeal including fees on the higher scale. AH other costs will abide the event.