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Mania Barik Vs. Suki Bewa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 51 of 1969
Judge
Reported inAIR1973Ori47
ActsLimitation Act, 1908 - Schedule - Article 118; Code of Civil Procedure (CPC) , 1908 - Order 2, Rules 3 and 4
AppellantMania Barik
RespondentSuki Bewa and ors.
Appellant AdvocateS.K. Dey, Adv.
Respondent AdvocateP.K. Dhal and ;D.N. Biswal, Advs.
DispositionAppeal dismissed
Cases ReferredSmt. Annapurna Debya v. Amiya Nath Banerjee
Excerpt:
.....the suit must fail as barred by time; (2) the suit is bad for multifariousness. the causes of action in respect of 'kha' and 'ga' schedules being separate have been clubbed together and, therefore, the suit must also fail. 7. the next contention agitated is that the suit is bad for multifariousness inasmuch as it unites two separate causes of action, one for partition of schedule 'kha' properties and the other for a declaration of title to schedule 'ga' properties. the plea of multi-fariousness must fail. the case in air 1949 mad 410 relied upon by the learned counsel for the appellant has been disapproved in the madras case quoted above (air 1955 mad 300). for the aforesaid reasons i am satisfied that the present suit does not suffer from any infirmity of multifariousness......to know for the first time in the proceeding under section 145. criminal p. c. relating to the suit property that defendant 3 has been asserting himself as the adopted son of bhaban her husband. she simply ignored such a claim of adoption as a false pretension. there was no necessity for her to seek any relief for setting aside adoption. her suit not being one for any declaration that the alleged adoption of defendant 3 is invalid or to set aside any adoption article 118 of the old limitation act is not attracted. a suit for simple partition cannot be treated as one for setting aside en adoption merely because one of the defendants sets up such a claim, so as to attract that article of the limitation act. since, it has been found as a fact that defendant no. 3 was never adopted by.....
Judgment:

S.K. Ray, J.

1. The plaintiff filed the suit for partition of 'Kha' schedule property into three equal shares and allotment of one such share in her favour and delivery of possession of her share and declaration of her exclusive right over the 'Ga' schedule properties and for further declaration that the sale deed executed in favour of defendants 6 and 7 dated 30-7-1958 is not binding on her as the vendor of that sale deed purporting to sell the same as son of Bhaban, her husband, is actually is not his son. She claimed relief of permanent injunction against the defendant 3 from realising rent from tenants on 'Ga' schedule Properties.

2. The genealogy set up in the 'Ka' schedule to the plaint is extracted below, to show the relationship of the parties.

Banamali Barik

|

-------------------------------------------------

| | |

Ananda Barik Bhagaban Bhaban Barik (died in 1941)

| Barik =Sukhi Bewa (Plff.)

------------------ |

| | |

Gopal Barik (D.1) Govind Barik |

(died) |

-------------------------------------------------

| | | |

Rama Barik Mania Barik D.3 Satrughan Barik Krishna Barik (died)

3. Since defendant No. 3 is the only appellant, it is necessary to recapitulate his case only. According to him he was adopted by Bhaban on 21-7-1925 and is entitled to succeed to his adoptive father's interest in the joint family properties and also of his separate property. Plaintiff is not the wife of Bhaban, but one of Gobind Barik and so she has no locus standi to institute the suit.

4. Both the Courts have found concurrently that the plaintiff is widow of Bhaban but defendant 3 is not his adopted son. Thus, defendant 3 has accepted the case of the plaintiff that 'Ga' schedule is the self-acquired property of Bhaban though originally in the written statement he alleged that 'Ga' schedule is the Joint family property. Therefore, for the purpose of this Second Appeal findings of fact which must be held final are that-- (a) plaintiff is wife of Bhaban (b) defendant 3 is not the adopted son of Bhaban and (c) 'Ga' schedule property is the self-acquired property of Bhaban. In view of these findings the plaintiff is bound to succeed.

5. Two points have been urged, namely, (1) The suit must be deemed to be one for declaration that defendant 3 is not the adopted son and, as the plaintiff has not led any evidence to show that the date of her knowledge of such adoption is within the period of limitation prescribed under Article 118 of old Limitation Act the suit must fail as barred by time; (2) the suit is bad for multifariousness. The causes of action in respect of 'Kha' and 'Ga' schedules being separate have been clubbed together and, therefore, the suit must also fail.

6. Plaintiff filed, a simple suit for partition and for declaration of title to 'Ga' schedule property. In her genealogy set out in the plaint defendant 3 has been shown as the natural born son of Bhagaban Barik. She also averred in her plaint that she came to know for the first time In the proceeding under Section 145. Criminal P. C. relating to the suit property that defendant 3 has been asserting himself as the adopted son of Bhaban her husband. She simply ignored such a claim of adoption as a false pretension. There was no necessity for her to seek any relief for setting aside adoption. Her suit not being one for any declaration that the alleged adoption of defendant 3 is invalid or to set aside any adoption Article 118 of the old Limitation Act is not attracted. A suit for simple partition cannot be treated as one for setting aside en adoption merely because one of the defendants sets up such a claim, so as to attract that Article of the Limitation Act. Since, it has been found as a fact that defendant No. 3 was never adopted by Bhaban Barik, this point has no legs to stand upon and accordingly fails.

7. The next contention agitated is that the suit is bad for multifariousness inasmuch as it unites two separate causes of action, one for partition of schedule 'Kha' properties and the other for a declaration of title to schedule 'Ga' properties. There has been thus, misjoinder of causes of action. Reliance in this connection has been placed on a decision of Madras High Court in the case of Nilakanta lyer v. Ramanarayan Iyer, AIR 1949 Mad 410.

8. The basis of this contention is Order 2, Rule 3 end Order 2. Rule 4, Civil P. C. Rule 3 of Order 2 runs as follows:--

'3 (l) Save as otherwise provided a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit'.

Sub-rule (2) is unnecessary and, therefore^ is not extracted. Rule 4 of Order 2 provides that no cause of action shall be joined with a suit for recovery of immovable property except such causes of action as are enumerated in Clauses (a) to (c) thereof, unless leave of Court is obtained. It is, therefore, argued that the cause of action for the claim of partitioning 'Kha' schedule cannot be joined with the suit for recovery of 'Ga' schedule without leave of the Court, which in this case, has not been obtained.

9. Reading Rules 3 and 4 of O. 2, Civil P. C, it is clear that a suit should include the whole of the claim to be made relating to the same cause of action and even in a suit for recovery of immovable property, other claims of dissimilar character may be joined if all the claims are based on the same cause of action. The plaintiff claims the interest which her husband had in 'Kha' schedule propertiesand also claims 'Go.' schedule property by inheritance from her husband on the looting that that was the separate property of her husband. The grounds set out for the reliefs claimed is that she is the widow of Bhaban and as such has an interest in 'Kha' and entitled exclusively to 'Ga'. Though the characters of the two reliefs are different they are based on the same ground. Clause (c) of Rule 4 of Order 2. Civil P. C. permits all claims to be clubbed together if they are based on the same cause of action. The expression 'same cause of action' has come in for judicial interpretation In various cases and 1 need only quote some passages from a decision of the judicial committee of the Privy Council in the case of Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78. The passage runs as follows:

'The phrase 'cause of action' has not been defined in any enactment but the meaning of it has been judicially considered in various decisions. In Read v. Brown. (1889) 22 QBD 128 = 58 LJQB 120 Lord Esher. M. R., accepted the definition given in Cook v. Gill. (1873) LR 8 CP 107 = 42 LJCP 98 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 not comprise every piece of evidence which Is necessary to prove each fact, but every fact which is necessary to be proved'. Fry, L. J. agreed and said, 'Everything which, if not proved, gives the defendant an immediate right to judgment, must be 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'.

This decision has been followed In India. The term has been considered also by the Board. In Mt. Chand Kour v. Partab Singh. (1887-1888) 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 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'.

Thus, in my view, all claims made here are based on the same cause of action and both the claims can be supported on the same evidence. The plea of multi-fariousness must fail.

10. The matter may be viewed from another perspective. The present suit is essentially a suit for partition in which a declaration is sought for that 'Ga' was the separate property of her husband and thus not partible. Further 'Ga' is in possession of tenants and thus no relief for recovery of possession has been sought for but only an order for permanent injunction. Thus Rule 4 of Order 2. Civil P. C. is not attracted. The provision of Rule 3 of Order 2, Civil P. C. which will apply, has codified the principle that if needless expense can be avoided especially without causing in-justice to any one, it ought to be done by combining different causes of action and also different claims in the same suit. On the basis of the doctrine incorporated in this rule a plaintiff instituting a suit for general partition may claim the relief of a declaration that certain item of property is not partible but is his exclusive property. Both these reliefs would be against the same set of defendants. The scope of a partition suit has been reviewed in a- number of cases and J would only refer two such cases.

In the case of K. R. Chidambaram Chettiar v. Rajambal Ammal, AIR 1955 Mad 300, it has been held:

'It is the duty of a Court in a suit for partition to determine, what are the properties of the joint family in which the parties will be entitled to a share, apart from the question as to what the respective shares of the parties to the suit in the joint family properties would be. In ascertaining the assets of the joint family, it will be necessary to go into the question of title as to whether the joint family is the owner of the properties which are claimed to be the properties of the joint family by the plaintiff. . . . Such questions are usually raised and have to be decided in the suit, as it is essential that the properties of the joint family should first be ascertained before a decree for partition could be passed.'

In the case of Smt. Annapurna Debya v. Amiya Nath Banerjee, AIR 1922 Cal 307, Mr. Justice Mookerjee has enunciated the scope of a partition suit. The learned Judge has said:

'In a suit for partition, it is incumbent upon the Court, before the preliminary decree is made, to determine whether the properties included in the suit are the joint properties, as alleged, of the parties to the litigation. A question can be raised and tried in a partition suit, though its solution interests only some of the parties to the litigation. In suits for partition questions may and do frequently arise which interest only some of the parties. A suit for partition may and does often involve the investigation of disputed questions of title and an attempt to avoid them, can only lead to needless multiplicity of litigation. . . . The limitations attending proceedings in partition are constantly weakening, and the tendency to do full and complete justice to the parties in one action, is becoming irresistible. All persons who have an interest in the partition are proper parties, and matters in controversy amongst persons so interested in the partition must be decided in the suit.'

It seems to me that has been held in the aforesaid case is that in a partition suit, in order to avoid multiplicity of litigation, all questions arising in the partition suit as to whether some of the properties are joint family properties and are thus partible or are separate properties of some of the coparceners and should be excluded from partition and should be allotted to that particular member of the joint family, should be decided in the suit itself, even though the Court has ample authority to direct successive trials of the issues separately affecting different defendants. In this case the claim of title of the plaintiff to 'Ga' schedule is on the footing that it is the self-acquired property of her husband and involves a dispute between her and all the defendants so far as it relates to joint family character of that item of property and involves a dispute between herself and defendant No. 3 as to whether her exclusive title to it is to be declared. All disputes arising in this suit for partition as indicated above can be adjudicated upon and the plaintiff is entitled to claim partition of the 'Kha' schedule properties and declaration of her exclusive title to the 'Ga' schedule properties. The case in AIR 1949 Mad 410 relied upon by the learned counsel for the appellant has been disapproved in the Madras case quoted above (AIR 1955 Mad 300).

For the aforesaid reasons I am satisfied that the present suit does not suffer from any infirmity of multifariousness. This point accordingly fails.

11. In the result, therefore, there is no merit in this appeal which is dismissedwith costs.


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