1. This is a defendant's appeal in a suit for possession of certain plots of land which had been decreed by the learned Subordinate Judge of Meerut. The case for the plaintiff was that the plots in suit, which were situate in three or four villages in Tahsil Baghpat, district of Meerut had been the subject of a suit No. 551 of 1921, in the Court of the Subordinate Judge of Meerut, and the temple of Thakur Sri Radha Ballabji, Chanchal Das and Govind Das were the plaintiffs and Ram Narain Das appellant was the respondent. That suit was decreed in favour of the plaintiffs, who were given one half, and Ram Narain Das was given the other half. That suit related to zamindari property known as khewat No. 64 and the plots now in suit. The plaintiffs were dispossessed by the defendant after the name of Govind Das was expunged from the revenue papers by an order of the Collector dated the 8th of July, 1924.
2. The defence to the suit was that the suit was not maintainable, and it was barred by the provisions of Order II, Rule 2 of the Code of Civil Procedure, and that the plaintiffs were not entitled to the exclusive possession of half of the plots in suit. The learned Subordinate Judge found all the issues in favour of the plaintiffs except the issue relating to the exclusive possession of half the plots and gave a decree for joint possession to the plaintiffs.
3. The defendant has come up in appeal, and three points are taken by the learned Advocate for the appellant. The first point is that under the order passed in Suit No. 551 of 1921, Govind Das obtained no interest in the property in suit. The second point is that the present suit was barred by the provisions of Order II, Rule 2 of the Code of Civil Procedure. The third point is that as the plaintiffs had stated that the plaintiffs were in exclusive possession of half the plots and the Court below had failed to accept that plea, the whole suit of the plaintiffs should have been dismissed.
4. We have come to the conclusion that there is no force in this appeal. The decree of the Subordinate Judge in Suit No. 551 of 1921 is to be found at page 25. The claim in that suit related to khewat No. 64 and the plots now in suit, and the plaintiffs in that suit were awarded half the property in suit. The defendant-appellant presented an application for amendments of the decree (see Ex. 2) by asking that only the name of Chanchal Das and Ram Narain Das be shown as the owners of one-half share each in the lands in suit. That application was dismissed by an order of the 15th of March, 1924 (Ex. 3) and the Court held that the decree had been rightly framed. We are of opinion, that the defendant cannot go behind that decree, and it must be taken that the plaintiffs in that suit were declared owners of one-half and Ram Narain Das owner of the other half.
5. The contention of the learned Advocate for the appellant with regard to the second point was that as the plaintiffs had on the 19th of August, 1924, instituted a suit for possession of the zemindari property viz: khewat No. 64 and had not in that suit included their claim to the plots now in suit, the present suit is barred under Order II, Rule 2 of the Code of Civil Procedure. It appears to us that the true test to apply, to see whether the second suit is barred by the provisions of Order II, Rule 2 is whether the claim in the second suit is in fact founded on a cause of action distinct from that which was founded in the former suit, or that the cause of action is the same. Regarding the facts relating to the previous suit we must mention the proceedings in the Revenue Court that were taken after the death of the last owner of the property. The property was in the possession of one Baldeo Das, and after his death, and after the decree passed by the Civil Court, an application for mutation of names was presented by Chanchal Das with regard to both the khewat property, which is to be found at page 41 and the 'dholi' property now in suit (Exs. 7 to 12). Two orders were passed by the Assistant Collector on this application. One related to the correction of the khewat and the other related to the correction of the 'jamabandi'. It is not denied that the entries relating to the plots in suit would he in the 'jamabandi' and the khewat entry relates to the zamindari property. The Assistant Collector by two different orders directed that the names of Chanchal Das and Govind Das should be entered with respect to half of the property and that of Ram Narain Das to the other half. An appeal was filed by Ram Narain Das with regard to the order relating to the correction of the khewat, and the Collector by an order passed on the 31st of May, 1923, (see Ex. E) ordered mutation of names to be made half in favour of Chanchal Das and half in favour of Ram Narain Das. No appeal seems to have been filed against the order of the Assistant Collector, regarding the order directing mutation of names of Chanchal Das and Govind Das to be made with regard to half of the plots in suit. A few months after the order of the Collector viz: about July 1923, Chanchal Das was murdered After the death of Chanchal Das one Brij Mohan Das applied for the entry of his name as to the 'dohli' property left by Chanchal Das. Three persons viz. Badri Das, Ram Narain Das, and Govind Das were the claimants, claiming that their respective names should be entered in place of Chanchal Das. By an order of the 24th of April, 1924 (Ex. G) the Assistant Collector directed that Ram Narain's name should remain in the 'dohli' property in place of Chanchal Das as he had got the share of Chanchal Das. It must be mentioned that the name of Gobind Das was not directed to be expunged from the revenue records. On appeal by Brij Mohan Das to which Govind Das was not a party, an order was passed by the Collector on the 8th of July, 1924, that Govind Das's name should be struck out, wherever it appeared.
6. The case for the appellant was that the appellant had all along been in possession of the property now in suit, and that as a matter of fact, the plaintiffs were never in possession. So that on the 19th of August 1924, when the plaintiff instituted his suit for possession of the khewat land, the cause of action for the second suit had already arisen, and the cause of action was the same. We are unable to accept this contention. The plaintiffs' case was that the plaintiffs were dispossessed of the khewat property by the order of the 23rd of May 1923, and the defendant had taken possession of the property in consequence of that order, but that they were in possession of the 'dohli' land until by reason of the order of the 8th of July, 1924, the defendant dispossessed them.
7. Evidence had been adduced by both the parties and the Subordinate Judge has upon an examination of the evidence of both parties come to the conclusion, believing the witnesses called on behalf of the plaintiffs, that the plaintiffs were actually in possession of part of the property until up to November, 1924. It seems to us clear that the dispossession of the plaintiffs which took place, did take place in consequence of the two orders of 1923 and 1924 referred to above and of the different properties on different dates. It, therefore, cannot be said that the cause of action for the two suits was the same and under the provisions of Order II, Rule 2, the plaintiffs were bound to include the whole of the claim which the plaintiffs were entitled to make in respect of the cause of action. Having come to the conclusion that the cause of action for the two suits was different we cannot accept the contention of the learned Advocate for the appellant that Order II, Rule 2, bars the present claim. As regards the third point taken by the learned Advocate for the appellant we are unable to see any force in it. The plaintiffs had claimed a right higher than the Court below had found they were entitled to. We are, therefore, of opinion that the order of the Court below granting joint possession to the plaintiffs was the correct order.
8. This appeal is dismissed with costs.