G.B. Patnaik, J.
1. Defendants-appellants have challenged the judgment and decree of the First Additional Subordinate Judge, Cuttack, in Title Appeal No. 51 of 1975 who by the impugned judgment has confirmed the judgment and decree passed by the Munsif, First Court, Cuttack, in Title Suit No. 34 of 1971.
2. Plaintiff Prafulla Kumar Sen filed the suit for eviction of the defendants with respect to two rooms and for realisation of arrear of licence fee amounting to Rs. 944/-. Plaintiff averred that he and Pramath Nath, the husband of defendant No. 1 and the father of defendants 2 to 5 were two brothers, Pramath sold the suit property to the plaintiff by a registered sale deed dt. 3-8-1945. Prafulla filed Title Suit No. 59 of 1963 for a declaration that the said sale deed was genuine, for consideration and on that basis he had acquired title and possession and further he had prayed forconfirmation of possession and for restraining Pramath Nath from making any construction over the suit land. The suit was decreed on a finding that the sale deed dt. 3-8-1945 was genuine and Prafulla's possession was confirmed excluding the two rooms which were in occupation of Pramath Nath. On appeal by Prafulla, it was held that Prafulla's right over the entire suit land including the two rooms occupied by Pramath Nath must be declared. It was further held that Pramath Nath was a licensee with respect to those two rooms. During the pendency of that appeal, Pramath Nath having died, the present defendants were substituted and their second appeal to this Court was dismissed. The defendants, therefore, continued to occupy the rooms as licensees. Plaintiff, therefore, filed the present suit for realisation of license fee at Rs. 30/- per month and also for eviction of the defendants.
3. The defendants in their written statement denied the assertion that they were licensees under the plaintiff. They also challenged the validity of the sale deed executed by Pramath Nath. They further pleaded that Order 2, Rule 2 of the Civil P.C would be a bar and the present suit was also hit by the principles of constructive res judicata.
4. On these pleadings, the Munsif found that the suit was neither hit by the provision of Order 2, Rule 2, Civil P.C. nor the principles of res judicata applied. He further found that the defendants were licensees and being in arrear of the licence fee were liable to pay the same. On these grounds, the suit was decreed with a direction that defendants must vacate the suit house and deliver vacant possession of the two rooms occupied by them and further held that the plaintiff was entitled to realise Rs. 944/-as licence fee from the defendants.
5. On appeal, the Additional Subordinate Judge has confirmed the findings and has dismissed the appeal Hence the present second appeal.
6. Mr. Patra, the learned Counsel appearing for the appellants, has reiterated that Order 2, Rule 2, Civil P.C. must be held to have applied to the facts of the present case as the plaintiff never prayed for recovery of possession with respect to the two rooms in the earlier suit. He has further submitted thatthe determination of Rs. 30/- as licence fee by the courts below is based on no evidence and, therefore, cannot be upheld in this second appeal. Both these contentions are devoid of any force. So far as the question of determination of licence fee is concerned, no doubt there is no documentary evidence in support of the same, but the courts below have considered the evidence of P.W. 3 and D.W.1 and have based their conclusion on their evidence. D.W.1 admitted in his cross-examination that Rs. 15/- to Rs. 20/- was being paid towards payment of rent and tax to the plaintiff. Though D.W.1 does not admit that it was being paid as licence fee, yet he had been constrained to admit that the amount was being paid. P.W.3 categorically asserted that Rs. 30/- was being paid by Pramath Nath by way of cost of maintenance of the rooms and the said licence fee was being paid from month to month. That the defendants are licensees with respect to the rooms can no longer be disputed in view of the findings in the earlier suit. The evidence of P.W.3 and D.W.1 referred to earlier having been accepted by the courts of fact and they having found that the licence fee was Rs. 30/- per month, it cannot be said that the said finding is one based on no evidence. The finding being one of fact based on appreciation of evidence, cannot be interfered with in the second appeal.
7. The only question which survives for consideration is whether Order 2, Rule 2, Civil P.C. will operate as a bar in the present suit. Under Order 2, Rule 2 of the Code, on the same cause of action, a new suit cannot be founded. The underlying principle behind the said provision is that no person shall be vexed twice for the same cause of action. Therefore, to sustain the plea of bar of Order 2, Rule 2, the defendants must establish that the cause of action for the subsequent suit is one and the same as that of the earlier suit. The cause of action in the context means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. If the evidence to support the two claims is different then the cause of action must be held to be different. In support of the plea that the cause of action of the two suits is one and the same, the defendants relied upon the certified copies of the judgment and decree in the earlier suit, marked Exts. 11, 12 and 13 and took no steps to prove the pleadings,namely the plaint in the earlier suit. In the case of Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, it was observed : --
'Just as in the case of a plea of res judicata which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under Order 2, Rule 2, Civil P.C. cannot, be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts , might be with reference to the reliefs which were then claimed. It is not impossible that reliefs were claimed without the necessary averments to justify their grant. From the mere use of the words 'mesne profits' therefore one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It is also possible that the expression 'mesne profits' has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterisation of the particular sum demanded but what in substance is the allegations on which the claim to the sum was based and as regards the legal relationship on the basis of which that relief was sought. It is because of these reasons that we consider that a plea based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced.'
In view of the aforesaid authoritative pronouncement of the Supreme Court and in the absence of the plaint of the earlier suit in the present case, it is not possible to hold that the suit is barred under Order 2, Rule 2, Civil P.C. The contention of the learned counsel for the appellants, therefore, has to be rejected.
8. In the result, therefore, there is no merit in the second appeal which is accordingly dismissed, but without any order for costs of this Court.