1. This is an appeal preferred, by virtue of a certificate of fitnessgranted by the Calcutta High Court, against its judgment, by which the decreepassed by the Subordinate Judge of Darjeeling was substantially affirmed.
2. The plaintiffs are the appellants before this Court. The suit out ofwhich the appeal arises was brought by the appellants claiming title to and therecovery of possession of a property known as the Azambad Tea Estate whichcomprised about 378 acres of land in Touzi No. 911 of the DarjeelingCollectorate. This property was set out in Schedule A to the plaint and besidesa claim was also made to certain other items of the movables and certain othertenures, but this appeal is not concerned with these others which were set outin Schs. B and C to plaint.
3. One Kazi Azam Ali was admittedly a full owner of this entire property andthe proceedings giving rise to the appeal are concerned with the rights of hisheirs to it. The plaintiffs claim their title on the basis of various purchasesfrom the heirs of this Azam Ali. The contesting defendants were the AzamabadTea Co. who also claim the entire property as transferees from the NationalAgency Co. Ltd., who too have been impleaded as defendants. The National AgencyCo. Ltd. claim to have purchased the entire 16 as. interest in the property ata Court sale in pursuance of a decree obtained by them against Kazi MohammedIsmail, the eldest son of Azam Ali. Various contentions were raised by theplaintiffs in challenge of the validity of the transactions by which thedefendants claimed their title. But the learned Subordinate Judge repelled theplaintiffs' claim and held that the purchase by the National Agency Co. Ltd.was valid and extended to the entire interest in the property and that inconsequence the plaintiffs' vendors had no title to convey to them any interestin the property. The plaintiffs' claim of the property in respect of Sch. A wastherefore dismissed. The plaintiffs preferred an appeal to the High Court andthe learned Judges upheld the title of the plaintiffs to an 8 pies share in theproperty mentioned in Sch. A to the plain but confirmed the decree of theSubordinate Judge as regards the rest. The learned Judges however granted acertificate of fitness to the plaintiffs on the strength of which the presentappeal has been filed.
4. The history of the transactions before the suit occupies a period of over20 years and the facts in relation thereto are at once long, voluminous andcomplicated. But, for the disposal of the appeal and the points urged before usit is wholly unnecessary to set these out and we shall therefore confineourselves to a narration of the bare outlines of the case along with thosefacts which are necessary to appreciate the contentions raised in support of theappeal.
5. The property covered by the Tea Estate was granted by Government by wayof lease to one Mudir and another for 30 years, the term to start on the 1st ofApril 1898. The grantees effected transfers of their lease-hold and afterseveral successive transfers the property was purchased in 1913 by one KaziAzam Ali who got his name registered as a proprietor. It was Azam Ali whostarted the tea garden, constructed the requisite factories as accessoriesthereto and named it the Azamabad Tea Estate. Azam Ali had several children andamong them 8 daughters and in consideration of gifts made to them, thesedaughter by a registered deed executed in 1909 relinquished their rights ofsuccession to Azam Ali. They thus faded away from the picture and no more noticeneed be taken of them. Besides these 8 daughters, Azam Ali had 8 sons whosurvived him and were among his heirs, when he died on June 8, 1917. MohammedIsmail was the eldest of these sons. Azam Ali also left behind him a daughterwho was born after the relinquishment of 1909 and three widows. Admittedly thesons of Azam Ali, his widows and his last daughters were all his heirs entitledto his estate in the shares as prescribed by Muslim Law. On Azam Ali's deathhis eldest son - Ismail - had his name entered in the Government records as thenext in succession and at the time the thirty years term of the lease expired,the lease continued to remain in the name of Ismail alone.
6. We now proceed to the transactions as a result of which the contestingdefendants claim to have obtained the full title to the Tea Estate. Ismail madelarge borrowings and among them were some from the National Agency Co. Ltd. andfor securing the loan he deposited with them the title deeds of the Tea Estate.It may be mentioned that the deposit was on the footing that he was the fullowner of the 16 as. share of the property mortgaged. The amount due under themortgage was not paid in time and the mortgagee filed a suit for theenforcement of its mortgage and prayed for the sale of the property for therealisation of the mortgage money. The suit was decreed as prayed for and theproperty was sold in execution of the final decree and was purchased by themortgage-decreed holder on September 24, 1931. The sale was confirmed on November13, 1931. This decree-holder purchaser sold the property to the Azamabad TeaEstate - the principal respondent before us. There was some little controversyas regards the reality and effectiveness of the transfer of the property fromthe National Agency Co. Ltd. to the Azamabad Tea Estate, but nothing turns onthis, for even if that transfer was not effective that would not help theplaintiffs so long as they could not displace the title of the National AgencyCo. Ltd. under the latter's court auction purchase.
7. The case of the plaintiffs rested on the fact that Ismail who got himselfregistered as if he were a full proprietor of the lease-hold interest in Touzi911 was merely one of several co-sharers of Azam Ali's estate to whom it passedon his death. The lease-hold which was his property was according to theminherited by all his heirs including Ismail, the seven other sons, the threewidows and the daughter born after 1909.
8. The term of the lease granted by the Government expired in 1928 and a renewedlease was granted in the name of Ismail alone. Rival contentions were urged asregards the effect of this circumstance on the right of Ismail. It was the caseof the contesting respondents that the lease granted in 1928 in favour ofIsmail was his sole and individual property and even if for any reason theother heirs of Azam Ali had an interest in the previous lease-hold, they didnot have any such interest in the property covered by the fresh lease. On theother hand, the case of the plaintiffs was that by the renewal of the lease,Ismail obtained qua his co-heirs the same interest as he formerly had in thelease of 1898. The renewal, they stated, was for the benefit not merely ofIsmail but for everyone of his co-heirs who still retained his or her interestin Azam Ali's estate. On this basis the plaintiffs raised the contentions thatwhen by the sale in execution of the mortgage decree obtained by the NationalAgency Co. they purchased the property mortgaged, it was only the interest ofIsmail that passed to them and not those of his co-sharers who were no partiesto the mortgage.
9. There is one further transaction to which we must advert before passingon to the next stage of the proceedings. After the mortgage by deposit of titledeeds in favour of the National Agency Co., Ismail transferred his entireinterest in the mortgaged property, that is, in the equity of redemption, tohis wife Mst. Nazifannessa, by a deed dated May 6, 1930. Notwithstanding thisdeed and this transfer of the equity of redemption Mst. Nazifannessa was notmade a party to the mortgage suit by the National Agency Co. The plaintiffs whoclaim to have acquired Mst. Nazifannessa's interest contend that by reason ofthe failure to implead Nazifannessa in the mortgage action, her right to redeemthe mortgage was still in tact in spite of the mortgage decree and the sale inpursuance thereof, and on this footing made a claim in the alternative toredeem the mortgage in favour of the National Agency Co. and obtain possessionafter redemption.
10. To complete the narrative of the relevant facts, very soon after thepurchase in Court auction in execution of the mortgage decree, the heirs ofAzam Ali brought a suit (58 of 1931) to set aside the decree and the sale infavour of the National agency Co. Ltd. on various grounds - collusion, fraud,the circumstance that Ismail was merely a co-sharer entitled to about 2 1/2 asshare in the property and so could not mortgage more than that share, and thatthe decree could not bind a larger interest nor the sale convey anything morethan that share, even if it conveyed any title to the property. This suithowever did not proceed to trial, but was dismissed for default, in that theplaintiffs did not appear in Court on the date fixed for trial. The only othermatter to be mentioned is that the plaintiffs have, by their purchases,acquired from the several co-heirs, directly or mediately, the entire 16 as.share in the property assuming that their vendors had any such right. Armedwith these purchases the plaintiffs filed this suit for the reliefs alreadyindicated.
11. The defences raised to the suit were three-fold :
(1) That Ismail was the soleproprietor of the Tea Estate at the date of the mortgage and consequently theentire interest was the subject of mortgage and so passed at the court sale.This was based on the provisions of the Crown Grants Act, now the GovernmentGrants Act. It would be recollected that the thirty years lease of Touzi 911was renewed in 1928 and this renewal was made in the name of Ismail alone.Based on this feature a contention was raised that the grant of the leasecreated a new title in the grantee since the original lease in which alone theheirs of Azam Ali might have had a share was extinguished by the termination ofthat lease by efflux of time.
(2) The second line of defencewas that Ismail, even if in fact or law was not the full owner, was anostensible owner of the entire interest in the property and that the co-heirswere estopped from questioning the validity of the mortgage of the entireinterest effected by him under s. 41 of the transfer of Property Act and thatin consequence the sale in execution passed the entire 16 as. share to thepurchaser.
(3) Lastly, it was urged that theplaintiffs' suit was liable to be dismissed by reason of the provisions of O.IX, r. 9 of the Civil Procedure Code as the earlier Original Suit 58 of 1931brought by the co-heirs to set aside the sale under the mortgage decree hadbeen allowed to be dismissed for default.
12. The learned Judges of the High Court rejected the first two of thedefences but held that except to the extent of an eight pies share whichrepresented the interest of a co-heir which was not affected by the proceedingin Suit 58 of 1931, the plaintiffs were precluded by O. IX. r. 9, CivilProcedure Code from disputing the sale in execution of mortgage decree byreason of the dismissal for default of Suit 58 of 1931.
Before proceeding to set out the arguments addressed to us by Mr. Desai,learned counsel for the appellants, it might be convenient to dispose of thesubmissions made to us by Mr. Sen, learned counsel for the respondents, seekingto sustain the first two defences which were repelled by the High Court.
13. The first of them was that by reason of the renewal of the lease in 1928in the name of Ismail and the entry of his name as sole lessee in the revenuerecords, the leasehold became his sole property. Apart from the arguments aboutIsmail being the ostensible owner of the entire 16 as. share in the lease-holdunder the lease of 1891 - which we shall consider a little later - Mr. Sen didnot dispute that Ismail's co-heirs were entitled to their fractional shares inthe property under the original lease. The acceptability of this argumentregarding the renewed lease has to be determined on the basis of two factors -first the intention of the parties, and here primarily of the grantor, as tothe nature and quantum of the title intended to be conferred on or obtained byIsmail and, second, the provisions of the Crown Grants Act which governed thegrant on which reliance was placed as leading to that result. First, as to theintention of the parties. The original lease of 1898 was due to expire on March31, 1928. On July 20, 1928 Mohd. Ismail made a petition to the DeputyCommissioner, Darjeeling by which after drawing the latter's attention to thedate on which the lease was to expire, he 'respectfully solicited thefavour of kindly granting a further lease of the said Estate for a furtherperiod of 30 years.' The Deputy Commissioner replied by letter datedAugust 10, 1928 sending Ismail the draft of the renewed lease for his approvaland return adding 'in the record of rights the following names have beenrecorded :
1. Kazi Mohammed Ismail 2 as.;
2. Kazi Isahaque 2 as.;
3. Kazi Yakub 2 as.;
4. Kazi Samoddoha 2 as.;
5. Kazi Nurul Huda 2 as.;
6. Kazi Badarudduza 2 as.;
7. Kazi Insaf Ali 2 as.;
8. Kazi Asfaque 2 as.;
14. Please mention the name in whose favour the lease will have to beissued.' Ismail returned the draft lease with his approval but desiredthat the lease should be issued according to the name in the land register. Weare unable to read this request as meaning that Ismail, contradicting what theGovernment said, wanted that the leasehold interest should be his sole propertyin which his co-heirs who had interest in the earlier lease were to be deniedall beneficial interest. It was thereafter that the lease was executed onFebruary 1, 1929 in the name of Ismail to be operative from April 1, 1928 andwas in terms in renewal of the previous lease. In the circumstance, we aresatisfied that the Government intended to grant a lease in favour of hisco-shares as well, though the lease deed was in the name of Ismail alone. IfIsmail intended to benefit himself as the expense of his co-shares and as wehave said, we do not read his reply to the Deputy Commissioner as disclosingsuch an intention, the same was not made known to the Government. We aretherefore unable to accept Mr. Sen's submission based on the intention of theparties. He, however, submitted that whatever be the intention of the parties,by reason of 3 of the Crown Grants Act Ismail's title to the full 16 as. sharein the leasehold could not be disputed. This section reads :
'3. All provisions, restrictions, conditions andlimitations over contained in any such grant or transfer as aforesaid shall bevalid and take effect according to their tenor, any rule of law, statute orenactment of the Legislature to the contrary notwithstanding.'
If, as we have held, it was the intention of the Government is granting therenewal that the co-heirs too should have the benefit of the lease we do notsee how these provisions affect their beneficial interest in the lease. Nor arethere any clauses in the lease which preclude the existence of a beneficialinterest in persons other than the lessee named. This point is thereforewithout substance and is rejected.
15. The next point urged was based on s. 41 of the Transfer Property Act. Itwas said that Ismail was by reason of the entry in the revenue registers, whichthe co-heirs did nothing to correct, ostensibly the full owner of the propertyof hence the mortgage by him as full owner and the sale court auction inexecution of the decree by the National Agency Co. Ltd. passed the full titleto the Tea Estate and that the co-heirs were consequently estopped fromdisputing defendant's right to the full 16 as. share in the property.
16. In order that s. 41 of the Transfer of Property Act could attracted, therespondents should prove that Ismail was ostensible owner of the property withthe consent of co-sharers and besides that they took reasonable care toascertain whether Ismail had the power to make a transfer of the full 16 as.interest. Now, the facts however were that except the property being entered inthe revenue records in Ismail's name, and that the management of the propertywas left by the co-sharers with Ismail, there is not an iota of evidence toestablish that Ismail was put forward by them as the ostensible owner of theproperty. It is manifest that the conduct of co-sharers in permitting one ofthem to manage the common property does not by itself raise any estoppelprecluding them from asserting their rights. The learned Judges have alsopointed out that even the least enquiry by the mortgagee would have disclosedthat Ismail was not the full owner and this finding was not seriouslychallenged before us. In this view it is unnecessary for us to consider thesubmissions made to us by Mr. Desai that s. 41 was inapplicable to cases ofsales in court auctions for the reason that what the court is capable ofselling and what is sold in execution of a decree is only the right, title andinterest of the judgment-debtor and nothing more. We, therefore, hold that thelearned Judges of the High Court rightly held that s. 41 of the Transfer ofProperty Act afforded no defence to the respondents.
17. The next and the only point remaining for consideration is whether theappellants' suit is barred under the provisions of O. IX. r. 9, Civil ProcedureCode. The part of this provision material for our purpose runs :-
'Where a suit is wholly or partly dismissed underrule 8, the plaintiff shall be precluded from bringing a fresh suit in respectof the same cause of action.'
18. The learned Judges of the High Court have held that this provisionbarred the plaintiffs' claim in the present suit except to the extent of an 8pies share in the estate which belonged to Azifunnessa and Najifennessa, two ofthe daughters of Azam Ali, who on the death of their mother became entitled tothat share. These two were not the parties to suit No. 58 of 1931 and hence thelearned Judges held that their share (which was purchased by the plaintiffs)was unaffected by the dismissal of that suit. The decision of the High Court inregard to this 8 pies share has become final and thus is outside controversy.The only question is whether the plaintiffs-appellants are entitled to anythingbeyond this share.
19. The suit, 58 of 1931, was instituted by 7 plaintiffs - Ashfaq,Shamsuzzoha, Nurul Huda, Mohd. Yakub, these four being the sons of Azam Ali,two of his daughters - Mahbuba Khatun and Habiba Khatun and one of his widowsBibi Marium. There were two defendants - the National Agency Co. Ltd. thepurchaser in court sale of the property under the mortgage decree, whose titlewas challenged and against whom reliefs were claimed and Mohd. Ismail who was apro forma defendant. Ashfaq, the first plaintiff, died after the institution ofthe suit and certain of the parties already on record were recorded as hislegal representatives. The allegations in the plaint briefly were that the 2nddefendant Mohd. Ismail was not the sole proprietor or owner of the Azamabad TeaEstate and that for that reason, the mortgage in favour of the 1st defendant,the mortgage-decree obtained by it and the sale thereunder passed to it notitle except to the extent of 2 1/2 as. share belonging to Mohd. Ismail. Theplaintiffs therefore prayed for a decree declaring -
(1) that Mohd. Ismail had only 21/2 as. share in the property and the remaining 13 1/2 as. share belonged tothe plaintiffs;
(2) that only 2 1/2 as. share wassold under the mortgage decree and purchased by the National Agency Co. Ltd. atthe court sale.
20. The suit was instituted on 28th November, 1931 and the issues weresettled, the suit was posted for trial on 22nd August, 1932, on which date theplaintiffs were absent, to witnesses on their behalf were present, and theirpleader reported no instructions. The suit was therefore directed by dismissedwith costs in favour of the National Agency Co. Ltd. who was the only partypresent in Court. It may be mentioned that Mohd. Ismail never appeared duringthe hearing of the suit.
Before taking up for consideration certain points urged before us by Mr.Desai regarding the construction of O. IX r. 9 C.P.C. we might dispose of acontention raised by him that Suit No. 58 of 1931 was filed fraudulently andcollusively and the dismissal was the result of a settlement brought aboutcollusively in order to defeat the plaintiffs' rights. We consider that thereis no factual basis to sustain this plea for he could point to no definiteproof in support, and the most he could do was to refer us to certain suspiciouscircumstances. We cannot obviously base any decision or rest any finding, onmere suspicion and we have no hesitation in saying that the submission does notdeserve serious consideration.
21. The next submission was that even the 2 1/2 as. share of Ismail did notpass under the sale in execution of the mortgage decree, because it was saidIsmail had been adjudicated an insolvent in Insolvency Case 38 of 1931 by theDist. Judge Purnia, as a result of which the properties which were the subject ofthe court-sale had vested in the official receiver before the relevant date.Though, no doubt, an allegation regarding this matter was made in the plaintand this was denied by the plaintiffs there is nothing in the judgments of thecourts below or in the evidence to indicate that the necessary facts wereproved or that this point was urged with any seriousness at any stage of theproceedings until in this Court. We have therefore nothing beyond the bareallegations and denials and as the full facts in relation to this matter werenot placed before the Court we hold that this plea is devoid of merits and doesnot merit consideration.
22. It was next said that two of the plaintiffs in suit No. 58 of 1931,Nurul Huda and Habiba Khatun, a son and a daughter of Azam Ali were reallyadults but were shown in the cause title as minors represented by theirrespective natural guardians as their next friends and that as there adultscould not in law be represented by persons purporting to act as their guardiansthey could not be held to be parties to the suit and hence their interestscould not be affected by the dismissal of the suit. This also is one of thematters in respect of which the plaintiffs beyond a mere pleading which wasdenied, made no grievance in the courts below and the facts in relation to thisissue, namely, the age of the two plaintiffs at the date of the plaint nothaving been clearly proved, we do not find it possible to entertain the plea atthis stage.
23. Mr. Desai, then submitted that Ashfaq who had figured as the firstplaintiff in suit No. 58 of 1931 had already on April 18, 1931 transferred his2 as. 13 gundas and odd share in Touzi No. 911 to one Pir Baksh from whom theplaintiff obtained a conveyance by a deed dated September 2, 1943 of what hehad purchased from Ashfaq. For this reason he urged that on the findings on themerits of the title in favour of the plaintiffs on the first two defences wehave dealt with earlier the plaintiffs should have been granted a decree tothis share of Ashfaq in addition to the 8 pies share decreed to them by theHigh Court. No doubt, if this transaction were made out and was real, it wouldstand on the same footing as the 8 pies share in regard to which a decree wasgranted in favour of the plaintiffs by the judgment now under appeal. We shallhowever consider this matter after dealing with the point urged as regards theconstruction of O. IX. r. 9, Civil Procedure Code, which was his mainsubmission and which, if upheld, would entirely eliminate the bar under thisprovision of law.
24. On this the first submission was that the rule which spoke of the'plaintiff' being precluded from bringing a fresh suit created merelya personal bar against the plaintiff in the first suit and that in the absenceof words referring to the representatives of the plaintiff or those claimingunder the plaintiff as in s. 11 or s. 47 of the Civil Procedure Code, the barwas not attracted to cases where the subsequent suit was by the heirs andassigns of that plaintiff. In support of this submission Mr. Desai invited ourattention to the observations of Das J. in Gopi Ram v. Jagannath Singh I.L.R.9 Pat. 447 where this argument was characterised as a weighty oneand examined elaborately. Though the learned Judge decided this matter on quitea different line of reasoning, he referred to various earlier decisions whichappeared to him to favour the view submitted to us by Mr. Desai and expressedhis hesitation in rejecting that construction. We are not however impressed bythe argument that the ban imposed by O. IX r. 9 creates merely a personal baror estoppel against the particular plaintiff suing on the same cause of actionand leaves the matter at large for those claiming under him. Beyond the absencein O. IX. r. 9 of the words referring 'to those claiming under theplaintiff' there is nothing to warrant this argument. It has neitherprinciple, nor logic to comment it. It is not easy to comprehend how A who hadno right to bring a suit or rather who was debarred from bringing a suit forthe recovery of property could effect a transfer of his rights to that propertyand confer on the transferee a right which he was precluded by law fromasserting. There are, no doubt, situations where a person could confer morerights on a transferee than what he possessed but those are clearly definedexceptions which would not include the case now on hand. This argument wasaddressed to the High Court and the learned Judges characterised it asstartling, a view which we share. The rule would obviously have no value andthe bar imposed by it would be rendered meaningless if the plaintiff whose suitwas dismissed for default had only to transfer the property to another and thelatter was able to agitate rights which his vendor was precluded by law fromputting forward. Again to say that an heir of the plaintiff is in a betterposition than himself and that the bar lapses on a plaintiff's death, does notappeal to us as capable of being justified by any principle or line ofreasoning. In our opinion, the word 'plaintiff' in the rule should obviously,in order that the bar may be effective, include his assigns and legalrepresentatives.
25. It was next urged that O. IX. r. 9 precluded a second suit in respect of'the same cause of action' and that the cause of action on which Suit58 of 1931 was laid and the present suit-title suit 18 of 1943 was not the sameand so the bar was not attracted.
26. In view of this argument it is necessary to examine the cause of actionon which the present suit has been filed and compare and contrast with that inSuit 58 of 1931. Closely analysed the material allegations to found the causeof action on which reliefs were claimed in the present suit were (i) That theTea Estate was originally the property of Azam Ali. When he died his estate wasinherited by his 8 sons, his widows and a daughter. That the registration ofthe estate in the name of Md. Ismail was as a co-sharer, the property belongingbeneficially to all the heirs. This position was not altered by the terminationof the first lease and its renewal in 1928 for a further period of 30 years.All the co-heirs lived as a joint family with a common mess and hence there wasno question on any adverse possession by Md. Ismail whose possession was not assole proprietor or exclusive. The suit on the mortgage was fraudulent andcollusive, by Ismail colluding with the mortgagee to defraud his co-heirs.Details were mentioned as evidence of the fraud and collusion. The sale inpursuance of the decree which was passed ex-parte was also fraudulent. On thedate of the auction Ismail had no title even to the 2 1/2 as. share because ofhis adjudication as an insolvent earlier. The manner in which the 8 pies shareof the daughters was obtained by the plaintiff was set out, and similarly thepurchase by them through Pir Baksh of the share of Ashfaq. The other purchasesby the plaintiffs thereby they claimed to have obtained the 16 as. share in theTea Estate were set out. The plaint then went on to suit 58 of 1931 and set outtheir case as regards the nature of that litigation and its effect. Lastly,they pleaded that they had obtained possession of the Tea gardens on October10, 1934 and that on the next day defendants moved the Magistrate for an orderunder 144, Criminal Procedure Code and that the Magistrate made an orderagainst the plaintiffs restraining them from interfering with the possession ofdefendants which necessitated their bringing the suit for the reliefs we haveout earlier.
27. We have already summarised the material allegations which were made inSuit 58 of 1931. The material difference between the cause of action alleged inthe present suit consists only in the addition of the allegations aboutpossession and dispossession in October, 1934. This is based on the title ofthe plaintiffs by reason of their purchases and admittedly their vendors wouldhave nothing convey if the court sale conveyed, as it purported to convey, thefull 16 as. interest in the Tea garden to the National Agency Co. Ltd. It wasbecause of this that allegations were made to sustain their title and thiscould be done only if they established want of title to the extent of 16 as.share in Ismail, the consequent ineffectiveness of the mortgage effected byIsmail and of the decree obtained in pursuance thereof and of the court sale inexecution of that decree, being confined at the most to 2 1/2 as. sharebelonging to Ismail. These allegations which were fundamental to theplaintiffs' case were identical with those which had been made in suit No. 58of 1931. Bearing these features in mind, the proposition that Mr. Desaisubmitted for our acceptance was briefly this.
28. A cause of action is a bundle of facts on the basis of which relief isclaimed. If in addition to the facts alleged in the first suit, further factsare alleged and relief sought on their basis also, and he explained theadditional facts to be the allegations about possession and dispossession inOctober, 1934, then the position in law was that the entire complexion of thesuit is changed with the result that the words of O. IX r. 9 'in respectof the same cause of action' are not satisfied and the plaintiff if entitledto reagitate the entire cause of action in the second suit. In support of thissubmission, learned counsel invited of attention to certain observation in afew decisions to which we do not consider it necessary to refer as we do not soany substance in the argument.
29. We consider that the test adopted by the Judicial Committee fordetermining the identity of the cause of action in the two suits in MohammedKhalil Khan Ors. v. Mahbub Ali Mian and Ors. (75 I.A. 121) is sound andexpresses correctly the proper interpretation of the provision. In that caseSir Madhavan Nair, after an exhaustive discussion of the meaning of theexpression 'same cause of action' which occurs in a similar contextin para (1) O. II r. 2 of the Civil Procedure Code, observed :
'In considering whether the cause of action insubsequent suit is the same or not, as the cause of action in the previoussuit, the test to be applied is : are the causes of action in the two suits insubstance - not technically - identical ?'
30. The learned Judge thereafter referred to an earlier decision of thePrivy Council in Soorijomonee Dasee v. Suddanund (1873) 12 Beng. L.R. 304 and extracted the following passage as laying down the approach to thequestion :
'Their Lordships are of opinion that the term'cause of action' is to be construed with reference rather to the substancethan to the form of action.........'.
31. Applying this test we consider that the essential bundle of facts onwhich the plaintiffs based their title and their right to relief were identicalin the two suits. The property sought to be recovered in the two suits was thesame. The title of the persons from whom the plaintiffs claimed title bypurchase, was based on the same facts viz., the position of Md. Ismail quoadhis co-heirs and the beneficial interests of the latter not being affected orinvolved in the mortgages, the mortgage-decree and the sale in executionthereof. No doubt, the plaintiff set up his purchases as the sources of histitle to sue, but if as we have held the bar under O. IX. r. 9 applies equallyto the plaintiff in the first suit and those claiming under him, theallegations regarding the transmission of title to the plaintiffs in thepresent suit ceases to be material. The only new allegation was about theplaintiffs getting into possession by virtue of purchase and theirdispossession. Their addition, however, does not wipe out the identityotherwise of the because of action. It would, of course, have made a differenceif, without reference to the antecedent want of full title in Ismail which wascommon to the case set up in the two plaints in Suit 58 of 1931 and Suit 18 of1943, the plaintiffs could, on the strength of the possession and dispossessionor the possessory title that they alleged, have obtained any relief. It is,however, admitted that without alleging and proving want of full title in Md.Ismail the plaintiffs could be granted no relief in their present suit. Thequestion is whether the further allegations about possession in October, 1934 havereally destroyed the basic and substantial identity of the causes of action inthe two suits. This can be answered only in the negative. The learned Judges ofthe High Court therefore correctly held that the suit was substantially barredby O. IX. r. 9.
32. It now remains to consider the claim of the plaintiffs to the 2 annas 13odd gundas share of Ashfaq. In paragraph 52 of their plaint the plaintiffsstated that by a registered sale-deed executed on April 18, 1931 Ashfaq, theson of Azam Ali sold the entire interest which he possessed in the Azamabad TeaEstate to Pir Baksh in pursuance of a Bainama dated April 7, 1930 and put himin possession, and in the succeeding paragraph they set out their purchases ofthis share by a Kabala dated September 2, 1943. In the Joint written statementfiled on behalf of the defendants 1 and 2 these allegations were controverted.The execution of the sale-deed in favour of Pir Baksh was denied and it wasfurther stated that even if the sale-deed were proved to have been executed itwas a sham and nominal transaction and therefore inoperative to pass title.Though no specific issue in relation to this sale to Pir Baksh was raised,there was a general issue (Issue No. 8) which related to the plaintiff'sacquiring title to the Tea Estate. The sale deed by Ashfaq was filed and markedas Ex. 12(i) and the sale in favour of the plaintiffs by Pir Baksh as Ex.12(c). The effect however of this sale to Pir Baksh on the rights of theplaintiffs to relief does not appear to have been raised before the learnedtrial Judge. It may be pointed out that the learned trial Judge held thatIsmail was the full owner of the property under the lease granted in 1928, byreason of the provisions of the Crown Grants Act and even if this were not so,he held that his co-heirs had consented to put him forward as the ostensibleowner of the property with the result that they were estopped from impeachingthe mortgage and the sale of the property in execution of the mortgage decree.It is therefore possible that because of the view which the learned trial Judgewas inclined to take of the title of Md. Ismail, the plaintiffs did notseriously put forward their rights under their purchase from Pir Baksh, becauseif the learned trial Judge was right, the sale by Ashfaq to Pir Baksh even ifreal would not have helped the plaintiffs to obtain any relief. In thisconnection it may be pointed that the plaintiffs claim to the 8 pies sharewhich was allowed in their favour by the High Court, was not pressed in thetrial court.
33. Even in the High Court, however, the point arising from the sale byAshfaq to Pir Baksh does not seem to have been pressed.
34. We shall presently advert to and examine the submissions made to us byMr. Sen as regards the merits of this claim to the share of Ashfaq, but beforedoing so we must refer to a point raised by Mr. Sen which necessitated aprolonged adjournment of the appeal after the main arguments were heard. Afterpointing out that the plaintiffs did not agitate or press before the courtsbelow any special right based on the purchase of Ashfaq's share through PirBaksh, he submitted that this might possibly have been because the propertycovered by the sale deed Ex. 12(i) did not comprise Touzi No. 911 - theAzamabad Tea Estate. There was scope for this submission because in the recordas printed for the use of this Court, the Schedule annexed to the sale deed Ex.12(i) was not printed but only the portion containing the description of theparties and the words of conveyance, with the result that Mr. Desai was unableto make out whether as a fact Ashfaq's interest in the suit property was soleunder Ex. 12(i). To make matters worse the Schedule to the sale deed of 1943executed by Pir Baksh was also not translated and printed in the recordprepared for the appeal. In new, however, of the categorical statement in theplaint as regards the indentity of the property conveyed under Ex. 12(i) withAshfaq's share in the Azamabad Tea Estate, are considered that the appellant'ssubmission could not be rejected as frivolous. We therefore acceded to therequest of Mr. Desai and called for the original of Ex. 12(i) from the HighCourt so that counsel might make submissions to us as regards the identity ofthe property conveyed. The document was accordingly obtained and translated forthe use of the Court and when the appeal was again placed before us Mr. Senadmitted that the property conveyed by Ex. 12(i) was Ashfaq's 2 as. 13 gundasodd interest in Touzi No. 911.
35. Coming now to the merits of the plaintiff's claim, it is common groundthat if the sale by Ashfaq were real and intended to pass title to Pir Baksh,the plaintiffs would be entitled to a decree for a declaration that in additionto the 8 pies share granted to them by the High Court, they would be entitledto a further 2 as. 13 gundas share of Ashfaq in the plaint A Schedule property.Mr. Sen's submission, however, was that we should not entertain or give effectto this claim, because several circumstances throw grave suspicion on thereality of the transaction, and that in any event the claim could not beaccepted without careful scrutiny of the facts.
36. Having regard to the definite case raised in the pleadings, we are notdisposed to reject the claim merely because the same was not pressed in thecourts below. Besides we cannot ignore the circumstance that the sale deeds Ex.12(i) and 12(c) on which the claim was based were filed in the trial court, andPir Baksh was examined to formally prove these deeds as the 31st witness forthe plaintiff. Moreover, even though as regards certain other transfers, thetrial Judge recorded findings that they were nominal, there was no such findingas regards the sale by Ashfaq. In view of these features, we have decided notto reject the claim of the plaintiffs based on this ground.
37. There are, however, certain features which throw some suspicion on thereality of the transaction which Mr. Sen pressed before us which have led us todesist from ourselves passing a decree for this additional share in theirfavour. The circumstances to which Mr. Sen drew our attention were these; (i)though Ashfaq executed the sale deed Ex. 12(i) on April 18, 1931, he figured asthe first plaintiff in Suit 58 of 1931 which was filed on 28th November, 1931,without adverting to the sale, a piece of conduct certainly not consistent withthe sale being real and intended to pass title; (2) though in the plaint thenecessary averments were made regarding their obtaining the share of Ashfaqthrough Pir Baksh, the claim under this head was not pressed before the trialcourt : (3) when the plaintiffs preferred an appeal to the High Court from thetotal dismissal of the suit, they did not raise any specific ground touchingtheir right to this share, nor were any arguments addressed to the High Courton this point; and (4) there had been no mutation in the revenue records whenthis sale was effected and Pir Baksh who was examined as a witness admittedthis fact. These circumstances are certainly capable of explanation, but theyshow that the claim of the plaintiffs cannot be accepted by us straightaway anda decree passed in their favour.
38. In these circumstances, we consider that the proper order to pass wouldbe to remit the matter to the trial Court for recording a finding as regardsthe reality of the sale on the evidence already on the record and to pass anappropriate decree in the suit, that is, if the sale under Ex. 12(i) were heldto be real, the plaintiffs would be entitled in addition to the 8 pies share decreedto them by the High Court, to a further 2 as 13 gondas odd share belonging toAshfaq which they obtained under Ex. 12(c) through Pir Baksh, and in the eventof the sale not being held to be real to no more than what the High Court hasdecreed.
39. With this modification, the appeal is dismissed with costs.
40. Appeal dismissed.