Harnam Singh, J.
1. In order to appreciate the points arising in these proceedings the pedigree-table set out hereunder will be usef ul :
| | |
Nagina Phina Jangi
| | |
Amru | Guranditta: Widow
(plaintiff) | Aurko
Dhanu Natho (Doad)
Jagdish Ram alias
2. On the 13th of June, 1932, 'Musammat' Aurko sold occupancy rights in the land in suit measuring 23 'kanals' 13 'marlas' to Ram Chand defendant No. 2 for Rupees 800/-. On the 11th of May, 1933, Natho son of Phina and Jagdish Ram son of Dhanu instituted Civil Suit No. 352 of 1933 for declaration that the sale of occupancy rights by 'Musammat' Aurko to Ram Chand defendant No. 2, being without consideration and necessity, would not bind the plaintiffs on the death of Musammat Aurko. Exhibit D. 1, copy of the plaint in that suit, shows that Ram Chand, 'Musammat' Aurko and Amru son of Nagina were the defendants in that suit.
3. On the 26th of February, 1934, Civil Suit No. 352 of 1933 was dismissed under Rule 8 of Order IX of the Code of Civil Procedure, here inafter referred to as the Code.
4. From the certified copy of the sale certificate, Ex. D., granted on the 29th of October, 1937, it appears that Jagat Ram purchased the property in suit for Rs. 1,200/- in execution of the decree passed in Civil Suit No. 725 of 1935, 'Jagat Ram v. Ram Chand', Jagat Ram is married to the daughter of 'Musommat' Aurko.
5. On the 7th of August, 1945, Jagdish Ram instituted the suit out of which this appeal has arisen against Jagat Ram, 'Mussammat' Aurko and Ram Chand for declaration that the sale made by Mussammat Aurko in favour of Ram Chand was not binding on the reversionary rights of the plaintiff. 'Mussammat' Aurko dying during the pendency of the suit Jagdish Ram applied for the amendment of the plaint on the 15th of January, 1946. The amendment was allowed on the 22nd of February, 1946 and the relief for declaration was substituted by relief for possession. By order dated the 10th of April 1946 Amru and Natho were added as plaintiffs in the suit.
6. Natho dying issueless his name was struck off from the array of plaintiffs. Jagdish Ram plaintiff is the heir of Natho.
7. Jagat Ram defendant contested the suit pleading 'inter alia' that the suit was barred by Rule 9 of Order 9 of the Code by reason of the dismissal of the previous suit under Rule 8 of Order 9 of the Code.
7a. On the pleadings of the parties the Court of first instance fixed the following issues:
1. Did the common ancestor of Mt. Aurko's husband and the plaintiffs occupy the suit land?
2. Whether the plaintiffs are reversioners of Gurditta husband of Mt. Aurko?
3. What is the effect of previous litigation on the present suit?
4. Is defendant No. 1 a 'bona fide' transferee for value without notice?
5. Are the plaintiffs estopped from suing on account of their conduct?
6. Is the suit within time?
7b. In deciding Civil Suit No. 394 of 1945 the Court found that the common ancestor of Gurditta and the plaintiffs occupied the land in suit, that the plaintiffs were the collaterals of Gurditta, that the plaintiffs were not estopped from suing, that the suit was within time and that the order passed in the previous suit under Rule 8 of Order 9 of the Code does not bar the suit. In the result, the Court of first instance decreed the plaintiffs' suit leaving the parties to bear their own costs.
8. From the decree passed by the trial Court on the 24th of March, 1947, Jagat Ram appealed in the Court of the Senior Subordinate Judge at Hoshiarpur.
9. In deciding the appeal the Senior Subordinate Judge found that the suit out of which these proceedings have arisen was barred under Rule 9 of Order 9 of the Code so far as Jagdish Ram plaintiff was concerned. In the result, the Senior Subordinate Judge dismissed with costs throughput the suit of Jag-dish Ram and decreed with costs throughout the sun of Arnru with respect to one half of the property in suit.
10. From the decree passed by the Senior Subordinate Judge on the 3rd of January, 1948, Jagdish Ram plaintiff has come up in further appeal to this Court under Section 100 of the Code while Jagat Ram vendee cross-objects.
11. Mr. Panna Lal urges that Order 9 Rule 9 ofthe Code does not govern the suit out of whichthe appeal has arisen. The relevant portionof Rule 9 of Order 9 of the Code reads:
'Where a suit is wholly or partly dismissedunder Rule 8, the plaintiff shall be precludedfrom bringing a fresh suit in respect of the'same cause of action'.'
11a. Now, the law on the point is that where the cause of action in the subsequent suit is different from that in the first suit, Rule 9 of Order 9 of the Code does not apply. In Civil Suit No. 352 of 1933 'the cause of action' was the sale made by 'Mt.' Aurko to Ram Chand on the 13th of June, 1932, whereas the cause of action in the suit out of which this appeal has arisen is the death of 'Mt.' Aurko in 1946. On this point 'Tej Singh v. Hannu Parshad', AIR (27) 1940 All 433, may be seen. Clearly, Rule 9 of Order 9 of the Code does not govern Civil Suit No. 394 of 1945. The cause of action for the present suit arose on the death of 'Mt.' Aurko in 1946. The fact that the present suit as ariginally instituted by Jagdish Ram was for declaration has no bearing on the point that arises for decision in these proceedings. In deciding this point we have to look to the cause of action as disclosed in the amended plaint filed on the 25th of February, 1946.
12. In the cross-objections it is said that the suit of Amru was hit by Rule 9 of Order 9 of the Code. For the reasons given above, I find that the point raised has no substance. In case a suit is dismissed in default under Rule 8 of Order 9 of the Code, it cannot be said to have been heard and. finally decided on the merits and, therefore, the judgment in that suit cannot operate as 'res judicata', but the plaintiff is under the 'specific provisions of Rule 9 precluded from bringing a fresh suit on the same cause of action. That being so, whatever the effect of the dismissal of the previous suit under Rule 8 of Order 9 of the Code may be on the suit of Jagdish Ram the dismissal of that suit does not affect the suit of Amru with respect to one half of the property in suit.
13. For the foregoing reasons I allow regular Second Appeal No. 197 of 194,8 and dismiss the cross-objections.
14. In the result, I decree Civil Suit No. 394 of 1945 for the possession of 23 'kanals' 13 'marlas' as of 'maurisiyat' land bearing khasara Nos. 65 'min', 551/176, 197, 65 'min', 225 'min', 227 and 138, entered in the jamabandi of 1940-41 situate in village Bhatoli, tahsil Dasuya, District Hoshiarpur.
15. Having regard to all the circumstancesof the case, I leave the parties to bear theirown costs throughout.