G. K. Misra, C. J.
1. On 19th November, 1959, the 1st defendant sold the disputed property by a registered sale deed, Ext. I, to the 6th and 7th defendants. The disputed land constitutes 0.32 acre. In a partition between defendants 6 and 7, who are brothers, the suit-land fell to the share of defendant 6. By a registered sale-deed Ext. 2, defendant 6 sold 0.06 acre to the plaintiffs on 9-5-60 This six decimals were sold out of two plots, 2075 and 2076, three decimals from each of the plots from their southern side. On the same day, defendant 6 transferred the balance 6.26 acre to defendants 9 to 13 and plaintiff 9 without any specification of the boundary.
On July 26, 1960, T. S. No. 149/60 was filed by the plaintiffs for declaration of their title, and confirmation of possession of 0.06 acre and for injunction. In that suit plot No. 2075 was wrongly described. On 16th December, 1961, plaintiffs obtained a fresh registered sale deed, Ext. 5 from defendant 6 whereby the mistake in the description of the land in the earlier sale deed, Ext. 2 was rectified. It was accompanied by a new map. On 4th January, 1962, plaintiffs filed a petition for amendment of their plaint in T. S. 149/60 on the basis of Ext. 5 as the suit itself was based on wrong description of the property given in Ext. 2. This amendment application was rejected by an order dated 24-1-62. It was clearly stated in that order that the amendment, if allowed, would alterthe subject-matter of the suit, and would substitute a new cause of action distinct and separate from what had been taken in the original suit.
On 26th of Feb., 1962 plaintiffs filed an application for withdrawal of the suit, on the ground of formal defect. That application was rejected as there was no formal defect. Thereafter the plaintiffs were absent on the date of hearing and the suit was dismissed for plaintiff's default. This suit was filed on 14-3-62 wherein the plaintiffs have prayed for partition by metes and bounds, of the lands purchased by them in plot Nos. 2075 and 2076. They claimed also damages. In this suit, the date of accrual of the cause of action was mentioned as 16-12-61 when the registered sale deed, Ext. 5 was obtained by way of rectification of the earlier sale deed, Ext. 2 and also on the basis of dispossession caused by the defendants on 9-10-60.
2. The defence was that Exts. 1 and 2 were fraudulent and the suit is barred under Order 9, Rule 9 and Order 2, Rule 2, C. P. C.
3. Both the trial court and the lower appellate court held that Exts. 1 and 2 were genuine and for consideration and the suit was not barred by Order 9, Rule 9, C. P. C. They accordingly decreed the suit.
4. Defendants 1 to 4 filed the second appeal. The only point urged therein was whether the suit was barred under Order 9, Rule 9, C.P.C.
Our learned brother, R. N. Misra, J. dismissed the second appeal but granted leave and this is how the matter has come before us in this A.H.O.
5. The facts referred to in extenso are not disputed. The findings of fact were not rightly challenged before the learned Single Judge. The only point raised by Mr. Dasgupta in this appeal is that the suit is barred under Order 9, Rule 9, C.P.C.
6. Order 9, Rule 9, so far as relevant runs thus:
'Where a suit is wholly or partly dis-missed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action
The question for consideration is whether the cause of action on which the suit was based in T. S. 149 of 1960 is the same in the present suit. This naturally necessitates investigation into the meaning of the expression 'cause of action'. The matter is concluded by AIR 1949 PC 78 (Md. Khalil v. Mahbub All) where this expression was examined in connection with its meaning under Order 2, Rule 2,C.P.C. After an elaborate discussion of the authorities prevailing in India and England, their Lordships summed up the principles in paragraph 61 of the judgment as follows :
(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 of the former suit' Moonshee Buzloor Ruheem v- Shum-soonnissa Begum, (1867-11 Moo Ind App 551 - 2 Sar 259 PC) (supra).
(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, (1889-22 QBD 128 = 58 LJQB 120) (supra).
(3) If the evidence to support the two claims is .different, then the causes of action are also different. Brunsden v. Humphrey, (1884-14 QBD 141 = 53 LJQB 476) (supra).
(4) The causes of action in the two suits may be considered to be the same if in substance they are identical. Brunsden v. Humphrey, (1884-14 QBD 141 = 53 LJQB 476) (supra).
(5) The cause of action 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 refers......to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour. Mt. Chandkour v. Partab Singh, (1887) 15 Ind App 156 = (ILR 16 Cal 98 PC) (supra). This observation was made by Lord Watson in a case under Section 43 of the Act of 1882 (corresponding to Order 2, Rule 2) where plaintiff made various claims in the same suit.'
This decision was accepted as laying down good law in AIR 1965 SC 295 (Suraj Rattan v. Azamabad Tea Co.).
7. In examining the question whether both the suits rest on the same cause of action, attention must be diverted to the essence of the matter and not to its form, that is, the fourth dictum laid down by the Privy Council.
8. Applying the aforesaid test to this case, it would be clear that the causes of action in the two suits are different. The first suit was based on Ext, 2 supporting the title of the plaintiffs. The description of the property given in Ext, 2 was found to be incorrect. Consequently the plaintiffs obtained a second sale deed, Ext. 5, in rectification of the mistake regarding the property described in Ext, 2. The properties mentioned in Ext.5 are specific and substantially different from the properties mentioned in Ext. 2. To illustrate, plaintiffs purchased 0.03 acre from the south of plot No. 2075 as per Ext. 2 while by Ext. 5 the purchase was made from the north of the plot. It is unnecessary to give other details. It would be sufficient to say that the properties claimed in both the suits are substantially different.
9. The conclusion is reinforced by the history of the litigation that preceded the dismissal of the earlier suit. When on the basis of the rectification-deed, the plaintiffs wanted an amendment of the plaint the same was rejected on the ground that the amendment would change the nature of the suit and the amendment sought for was based on a different cause of action. Once the contesting defendants got the amendment dismissed on the ground that the cause of action indicated in the amended plaint would be different from the cause of action given in the original plaint, it no longer lies in their mouth to say that the present suit is not based on a different cause of action.
Judged from any point of view, the defence contention, that the causes on action in both the suits are the same, is hardly tenable.
10. The question raised in this case is really concluded by pure findings of fact, and in our view the learned Single Judge should not have granted leave for further appeal.
11. In the result, the appeal fails and is dismissed with costs.
12. I agree.