1. This is a first appeal by the plaintiff in a suit for recovery of possession.
2. One Nandram and his brother Achlu mortgaged two houses mentioned as A and B in the schedule annexed to the plaint, with one Jainarain for a sum of Rs. 3000/- on 'Be-sakh Vadi' 7, Smt. 1975 (22nd April 1919) and delivered possession thereof to the mortgagee in pursuance of the mortgage. Nandram took a lease of the house A from the mortgagee on the date of the mortgage and occupied the same as a tenant. On the failure of Nandram to pay rent, Jainarain sued for arrears of rent and ejectment and obtained a decree on the 12th of September 1929, and actual physical possession was delivered to him in execution of the decree on 19th of November 1931,
It was alleged that Mst. Sarupi, mother of Nandram, committed trespass over the said house and dispossessed the mortgagee. Thereafter, Jai Narain filed a complaint for house-trespass but Mst. Sarupi was acquitted on the ground that her action was in exercise of a bona fide right to be provided with a place for residence. It was alleged that Mst. Sarupi continued to be in possession of the house till her death in July 1942 but thereafter Nandram and his two sons Gauri Shanker and Jagdish got into possession of the property although they had no right to do so and it was the mortgagee Jainarain who was entitled to have possession over the property.
Jainarain, however, transferred his rights under the deed of mortgage to Shri Shambhu Nath by a document dated 31st March 1944 and the present suit was instituted by Inder-nath who is the son and legal representative of the said Shri Shamtahu Nath. It was alleged that the house B had been sold in connection with the recovery of Government dues outstanding against Nandram and after satisfying the Government debt, a sum of Rs. 1,237/8/- was received by Jai Narain on 'Mah Sudi' 6, Smt. 1976 but thereafter nothing was received by him or his successor Shri Shambhu Nath.
On 7th June 1944 Shri Shambhu Nath called upon Nandram to deliver possession of the house but the defendant did not comply. The plaintiff claimed possession over house A and Rs. 570/- by way of mesne profits from July 1942 till date of suit at the rate of Rs. 15/-per month and further at the same rate till delivery of the possession. Gaurishanker and Jagdish, the two sons of Nandram, were also jmpleaded as defendants. The present suit was filed on 1st of October 1945.
3. Jagdish alone contested the suit and it was pleaded that the house was ancestral property in the hands of Nandram and he had no authority to mortgage the same and the mortgage was invalid. It was also pleaded that Jagdish was in possession of the house from even before the death of Mst. Sarupi and the suit was barred by limitation. A further plea' was taken that Jainarain had filed a suit for recovery of mortgage money on 14th of January 1944 in the court of District Judge No, 2, Jodhpur, which was, dismissed and as the relief for possession was not claimed in the previous suit, the present suit was barred under the provisions of Order II, rule 2, C. P. C. and on the principle of res judicata.
4. A rejoinder was filed on behalf of the plaintiff in which it was said that the house belonged to Nandram and Achlu and on partition between them it came to the share of Achlu. It was denied that Jagdish or any of the defendants came to be in possession of the property before the death of Mst. Sarupi and it was reiterated that the defendants had taken possession of the property as trespassers after the death of Sarupi. The plaintiff averred that the present suit was neither barred under Order 2, R, 2 of the Code nor on the principle of res judicata and further that it was within limitation. As to the former suit being dismissed, it was pointed out that it was dismissed solely under the bar of limitation. The allegation as to the invalidity of the mortgage was denied.
5. The trial court framed eleven issues. The first two put the plaintiff to the proof of the fact of the mortgage and the lease of house A to Nandram by Jainarain and the letter's obtaining possession of the same on 19th November 1931 in execution of the decree for ejectment. Issue No. 3 put the plaintiff to the proof of transfer of the rights by Jainarain in favour of the plaintiff's father Shri Shambhu Nath on 31st March 1944. Issue No. 4 was divided into two portions. 4(a) put the plaintiff to the proof of the allegation that the defendants got into possession of the property after the death of Mst. Sarupi, and 4(b) related to the question whether the plaintiff was entitled to rightful possession even if it be held that the defendants came to be in possession of the property during the lifetime of Mst. Sarupi.
Issue No. 5 put the defendant to the proof of the invalidity of the mortgage made by Nandram and Achlu. Issue No. 6 related to the barto the suit under Order II, Rule 2, C. P. C., while issue No. 7 related to the non-maintainability of the suit on the ground that the dismissal of the earlier suit for mortgage money extinguished the mortgage. Issue No. 8 related to limitation, No. 9 to mesne profits, No. 10 to the sufficiency of court-fees. Issue No. 11 related to the relief which the plaintiff might be entitled to.
6. Issues Nos. 1, 2, 3, 7, 8 and 10 were decided in favour of the plaintiff. Issues Nos. 5 and 6 were decided against the plaintiff. On issue No. 4, the finding was that it had not been proved that the defendants got into possession of the property after the death of Mst. Sarupi but that they had got into possession some time after 19th Nov. 1931, the date when Jainarain was put in physical possession of the property in execution of the decree for ejectment. As a result of the decision on issues Nos. 4, 5 and 6 being against the plaintiff, the claim for possession was disallowed and as a corollary to that he was not entitled to any mesne profits also and this was the decision on issue No. 9. Accordingly, on issue No. 11, the plaintiff was held not entitled to any relief and the suit was dismissed with costs.
7. The plaintiff has come up in appeal and it was contended on his behalf that decision on issues Nos. 4, 5 and 6 was erroneous. We propose to deal with issue No. 6 in the first instance. On this issue, the lower Court has held that Jainarain in his earlier suit (No. 78 of 1943-44) for recovery of mortgage money could have also sued for possession of the property in the alternative, but as that relief was not included in the earlier suit, the present suit was barred under the provisions of Order II, Rule 2, C. P. C.
8. Learned counsel for the appellant argued that even according to the lower court, the plaintiff could have only sued for possession of the property in the alternative and therefore Order II, Rule 2, was of no application in this case. Reliance was placed on -- 'Shripad v. Sidram', AIR 1951 Bom. 167. It has been held in that case that
'It is not the mere existence of more than one relief only that brings the bar under Order 2, Rule 2, into operation. If a 'person is entitled to more than one cumulative relief, but sues for only some of those reliefs and does not choose to sue for the remaining reliefs then his right to sue for the latter reliefs is barred under Order 2, Rule 2. If, on the other hand, he is entitled only to one relief out of several alternative reliefs and he sues for one of them, his remedy to sue for other alternative reliefs is not barred, for he cannot be said to have been entitled to more than one relief.'
In that case reliance was placed on -- 'Par-meshri Das v. Fakiria', AIR 1920 Lah. 1 (FB) and -- 'Har Kaur v. Udham Singh', AIR 1939 Lah. 112, and these decisions were also cited by learned counsel for the appellant in support of his argument. Learned counsel for the respondent cited -- 'Harnam Singh v. Bhola Singh', AIR 1921 Lah. 309; -- 'Harichand v. Melaram', AIR 1932 Lah. 523; -- 'Sheo Ratan Singh v. Ramsingh', AIR 1925 Oudh 524 and -- 'Ram Autar Pande v. Shanker Dayal', AIR 1926 Pat. 87. A correct decision on the point depends upon the interpretation of sub-rule.
8. of Rule 2, of Order II, C. P. C. That rule reads as follows:
'A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits except with the leave of the Court to sue for all such reliefs, he shall not sue afterwards for any relief so omitted.'
The language of the rule does not mention whether the person entitled to more than one relief in respect of the same cause of action should be so entitled in the alternative or in the cumulative and it would be contrary to the principle underlying the framing of this rule to read it as applying only to those cases where the person is entitled to more than one relief in the cumulative. In this connection, it would be relevant to refer to the provisions of rule 1 where it is laid down that every suit shall asfar as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation con-cerning them, Reading rule 1 with Sub-rule (3) of Rule 2, we have no doubt in our mind that if a person is entitled to more than one relief in the alternative in respect of the same cause of action, the intention of the Legislature was that he should sue for all of them and in case he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted.
9. In the case of -- 'Parmeshridas v. Fakiria', AIR 1920 Lah. 1 (FB), the entire reasoning is to be found in one paragraph, viz.:
'The object of the rule embodied in Order 2, Rule 2 is to avoid the splitting of claims and to prevent further litigation. The rule is based upon the salutary doctrine contained in the maxim 'nemo debet bis vexari pro una et eaden causa'. We fail to see how a person can complain of being twice vexed in respect of the same cause, when he has himself given his adversary the option of making one claim or the other, but has not conferred at upon him the right to make both the claimsat the same time.'
Dalip Singh J. while referring to this case has observed in -- 'Harichand v. Melaram', A. I. R.1932 Lah. 523 that the decision in the case ofParmeshridas was a decision on the wording ofa particular mortgage-deed and all that washeld in that case was that the reliefs were notclaimable at the same time. The learnedJudges of the Bombay High Court in -- 'Sripadv. Sidram', AIR 1951 Born. 167 were not impressed with the distinction made by DalipSingh, J., as above and the observations in the'case of Parmeshri Das' referred to above wouldseem to negative the application of Order II, Rule 2, if however the contract gives an optionto the party to sue for one or the other relief.If we take into consideration the language ofrule 1 and rule 2(3) together, there remains nodoubt that it is exactly these cases which aresought to be covered by the rule.
10. In this connection it is important to refer to Order 34, Rule 14, C. P. C. It is provided in that rule that:
'Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage,and he may institute such suit notwithstanding anything contained in Order II, rule 2.'
A mortgagee may be quite satisfied with a simple decree for money hoping to realize the same by attachment or sale of some other property of the judgment-debtor. But if he wants to pursue the alternative remedy of bringing the mortgaged property to sale then he may not do so because he did not bring a suit for sale of the mortgaged property. By rule 14, he is given a right to do so and such second suit has been saved from the bar mentioned in Order II, Rule 2 of the Code by a special provision to that effect.
10a. In our opinion, Order II, rule 2(3) is applicable not only in cases where a person is entitled to more than one relief in respect of the same cause of action in the cumulative, but also in cases where he is so entitled to more than one relief in the alternative.
11. Learned counsel for the appellant next urged that the earlier suit was for recovery of mortgage money under the terms of the mortgage-deed which provided for repayment of the mortgage-money after one year, and the present suit was on a different cause of action which was the dispossession of the plaintiff by the defendants after the death of Mst. Sarupi in 1942. A perusal of the pleadings in suit No, 78 of 1943-44, however, shows that there was no mention in the body of the plaint about the stipulation for repayment of the mortgage money and the sole ground of the claim for recovery of money against defendants Nos. 1 to 4 (the mortgagors and their sons) was that they had instigated Mst. Sarupi to dispossess the mortgagee which she did.
Nandram denied having instigated Mst. Sarupi -and she herself pleaded that she was in possession of the property in exercise of her right of residence and maintenance. She denied having got into possession after dispossessing the plaintiff and averred that she had always been in possession of the property. The court dismissed the claim on the ground of limitation holding that the claim was governed by Article 132 of the Limitation Act which provided a period of twelve years for a suit for recovery of money charged upon immovable property, from the date when the money sued for became due.
While the plaintiff seems to have claimed the limitation to run from the date when he was dispossessed, the defendants 1 to 4 urged that under the deed of mortgage, the money was payable after one year and it had become due on 'Besakh Vadi' 7, Smt. 1976, and therefore the claim was barred by limitation on the date when the suit was filed on 'Asoj Vadi' 11, Smt. 2002. The contention of the defendants in that case was that if the money had become due in Smt. 1976, the running of limitation was not saved although another ground lor claiming the money had become available to the plaintiff by virtue of the provisions of section 68(1)(c) of the Transfer of Property Act, and in this plea the defendants succeeded and the suit was dismissed. The suit was based obviously on the allegation that the mortgagee had been deprived of his security in consequence of the wrongful act of the mortgagors and the wrongful act was said to be instigation to Sarupi to dispossess the mortgagee.
12. It was next argued that even if it were to be held that the cause of action in theearlier suit was the dispossession of the mortgagee by Mst. Sarupi some time after November 1931, the present suit was based on the allegation that after the death of Mst. Sarupi in 1942 Nandram and his two sons Gauri Shan-ker and Jagdish got into possession of the property as trespassers. The lower court has held that the plaintiff had failed to prove that Nandram and Jagdish got into possession of the property only after the death of Mst. Sarupi, and while it was held that they must have got into possession some time after 19th November 1931, the date when Jainarain was put in physical possession of the property in execution of the decree for ejectment, it could not be said when they did so.
In this connection, learned counsel for the appellant drew our attention to the written statement of Nandram in suit No. 78 of 1943-44, Ex. P-4, in which he denied being in possession of the property or having instigated Mst. Sarupi and pleaded that it was Mst. Sarupi who was in possession of the property. Mst. Sarupi's version about her possession has already been referred to above. We can, therefore, take it that the defendants got into possession at the property, some time after Sarupi had taken possession of it either during her lifetime with the consent of Mst. Sarupi or after her death, as the persons entitled to her estate.
In either case, therefore, their possession was referable to Sarupi. The allegation of the plaintiff that the defendants took possession of the property as trespassers has not been proved and since even the rights of a trespasser are transferable and heritable, there is no reason to think that a fresh trespass had been committed after the earlier trespass by Mst. Sarupi.
13. The main point for consideration in the case is the nature of the earlier suit and of the present suit and then to see whether the provisions of Order II, rule 2, C. P. C. acted as a bar to the present suit. Ex. D-l, the plaint of the earlier suit No. 78 of 1943-44 is on the record. Jainarain mortgagee was the plaintiff. The defendants were (1) Nandram son of Bhera, (2) Rameshwar s/o Nandram, (3) Gaurishanker s/o Nandram, (4) Achlu s/o Bhera, and (5) Mst. Sarupi widow of Bhera. Paragraphs Nos. 1 and 2 contained the fact of the property being mortgaged by Nandram and Achlu in favour of the plaintiff Jainarain, the delivery of possession to the mortgagee and its lease by the mortgagee to Nandram on a certain rent.
These paragraphs also contain an allegation that on failure to pay rent Jainarain obtained a decree for arrears of rent and ejectment. In paragraph 3, it was mentioned that in execution of the decree for ejectment, the plaintiff obtained possession and put his own lock on the property. Then came the allegation that Mst. Sarupi, defendant No. 5 broke open the lock & got into possession of the property on the instigation of defendant Nos. 1 to 4, who in this case were mortgagors and their sons. Paragraphs 4 and 6 mentioned the amount of Rs. 4,100/- as being due after adjusting the payments received and making certain remissions.
Paragraphs 5 and 7 contained the averments that the mortgagors, defendants Nos. 1 to 4, having failed to secure possession of the property to the mortgagee, he was entitled to re-cover the amount due on the mortgage by sale of the property. In paragraph 8, the cause of action was stated to have arisen on 'Besakh Vadi' 7, Smt. 1975 (the date of the mortgage), 'Vesakh Vadi' 8, Smt. 1975 (the date of execu- tion of the lease by Nandram), 12th September 1929 (the date of the decree for ejectment), and further on the date when Sarupi wrongfully dispossessed the mortgagee. The date of the last incident was, however, not mentioned. Paragraphs 9 and 10 related to formal matters and in paragraph 11, relief was claimed as under:
'The plaintiff claims a decree as follows: (i) A decree for Rs. 4,100/- be granted in execution whereof the house 'A' be put up for sale and the decree be satisfied; (ii) If the sale-proceeds be found to be insufficient for satisfaction of the decree, the plaintiff be declared entitled to re- cover such balance from the person and other property of the defendants Nos. 1 to 4.'
Sub-paragraphs (iii) and (iv) of para 11 con- tain prayers for an award of costs and any general relief to which the plaintiff may be held entitled.
14. In the plaint filed in the suit out of which this appeal has arisen, paragraphs 1 and 9 relate to the plaintiff's title to bring the suit. Paragraphs 2, 3, 4 and 5 relate to the fact of the mortgage by Nandram and Achlu to Jainarain, the lease of the house 'A' to Nand-ram by Jainarain. Jainarain's suit for eject- ment against Nandram, and his obtaining possession in execution of that decree on 19th November 1931. In paragraph 6, it is mentioned that after Jainarain had obtained possession as aforesaid, Mst. Sarupi dispossessed Jainarain, and in a criminal case started by Jainarain for trespass, the Chief Court acquitted her on the ground that she had a right of residence.
In paragraph 7 it is mentioned that Mst. Sarupi remained in possession of the property till her death in July 1942. In paragraph 8, it is mentioned that after the death of Sarupi, the defendants in the case, namely, Nandram and his two sons Gaurishanker and Jagdish wrongfully got into possession of the property although it was Jainarain who was entitled to the possession thereof as mortgagee. In paragraph 10, it is mentioned that the plaintiff's predecessor-in-title asked the defendants to deliver possession of the property and also gave a notice to that effect on 7th June 1944 but without result.
Paragraph 11 mentions the fact that there was still a subsisting mortgage. In paragraph12, mesne profits from July 1942 till date of the suit (1st October 1945) at the rate of Rs. 15/- per mensem were claimed. In paragraph13, the cause of action was alleged to have arisen on the day when defendants got into possession after the death of Sarupi sometime in July 1942. Paragraphs 14 and 15 contain formal matters and in paragraph 16 a decree was claimed as follows:
(i) for possession of house 'A' against the defendants;
(ii) for recovery of Rs. 570/- on account of mesne profits till date of suit;
(iii) for further mesne profits at the rate of Rs. 15/- per mensem till the date of delivery of possession by the defendants;
(iv) intereston mesne profits at the rate of 6 per cent, per annum; and (v) costs and general relief.
15. It has already been stated that it was Mst. Sarupi who dispossessed Jainarain sometime after 19th November 1931, and thereafter the present defendants got into possession of the property either with the consent of Sarupi who was the mother of defendant No. 1 and grand-mother of defendants Nps. 2 and 3, or after her death as successors-in-title. The plaintiff has obviously failed to prove that the defendants committed an act of trespass after the death of Sarupi, which would give rise to an entirely new cause of action. The original dispossession of the mortgagee was by Mst. Sarupi and nothing new has transpired since then although some other persons, viz., the defendants have come to be in possession of the propertythrough Mst. Sarupi.
16. Learned counsel for the respondent has argued that the cause of action for the earlier suit as also of the present suit is the disposses-sion of Jainarain by Sarupi and therefore the plaintiff, who is the successor-in-title of Jainarain, could not be permitted to split the reliefs which he could have claimed on account of the aforesaid dispossession. Learned counsel relied on -- 'Md. Khalil Khan v. Mahbub All Mian', AIR 1949 P. C. 78, where certain principles have been deduced from decided cases for arriving at a decision whether any particular case falls within the purview of Order II, Rule 2 of the Code. These principles are summarized in paragraph 61 of that case and are 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 for the former suit';
(2) The cause of action means every factwhich will be necessary for the plaintiffto prove if traversed in order to supporthis right to the judgment;
(3) If the evidence to support the two claims is different, then the causes of action are also different;
(4) The causes of action in the two suits may be considered to be the same if in substance they are identical; and
(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.'
17. The lower court has held that the facts alleged by the plaintiff in support of the relief claimed being the same in the two cases, Order II, Rule 2, C. P. C,, was applicable and this is virtual-ly the argument of learned counsel for the respondent. A careful scrutiny of the two plaints, however, discloses that the causes of action in the two suits are different although the facts which have given rise to the cause of action apparently seem to be the same. The facts upto the stage of Jainarain's having got into possession of the property in execution of the decree for ejectment of Nandram on 19th November 1931 are the same in both the plaints. In suit No. 78 of 1943-44, the allegation was that Mst. Sarupi committed trespass on insti-gation by the mortgagors. On the allegations made in the earlier suit, the mortgagee had two separate and independent rights against separate parties. One of them was to sue the trespasser for possession. The other was to sue the mortgagors for the money on the ground of their wrongful act, which in the case was alleged to be the instigation to Mst. Sarupi. But these were separate and distinct rights on different causes of action.
18. In the previous suit the mortgagee claimed his mortgage money from the mortgagors but not from Sarupi and rightly so as she was a trespasser and under no liability to repay the mortgage money. If the mortgagee did not then, however, desire to get back his money, he could have sued Sarupi for recovery of his security. In -- 'Bechu Sahu v. Arjun', XLIII I. C. 917, it was observed that:
'The provisions of section 68 of the Transfer of Property Act are designed for the purpose of indemnifying the mortgagee against any disturbance in his peaceful enjoyment of the property. They are provisions of an enabling nature, but they do not preclude a mortgagee who has been disturbed by a person claiming without title from suing the trespasser according to the general law and claiming as against him a declaration of title and recovery of possession.
There is nothing in law to debar the mortgagee from asserting his rights against the trespasser alone without claiming the indemnity which section 68 of the Transfer of Property Act empowers him to claim from his mortgagor.'
19. The same set of facts thus gave rise to a remedy to the mortgagee against the mortgagors to sue them for recovery of the mortgage money by virtue of Section 68(c) of the Transfer of Property Act; but as against Sarupi the remedy was under the general law of the land whereby a person under a possessory title seeks to enforce his title against a trespasser, The causes of action are, thus, different. In the present suit the plaintiff wanted to enforce his possessory title against persons who have been found to derive their rights to possess from Mst, Sarupi, a trespasser, although they happen to be the mortgagors, Mst. Sarupi being their mother and grand-mother. The distinction is fine but nevertheless correct.
20. In -- 'Payana Reena Saminathan v. Pana Lana Palaniappa', XLI I. A. 142 which was a case coming from Ceylon where the law is in the same terms as Order II, Rule 2, C. P. C., their Lordships of the Privy Council made certain observations which are very relevant. While referring to the provision, they observed,
'It is directed to securing the exhaustion of the relief in respect of a cause of action, and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transactions.'
In that case, the plaintiff sued on a promissory note but the action failed owing to a material alteration in the note. He afterwards sued to recover a part of the consideration for which the promissory note had been given and it was held that although the claims in the two actions arose out of the same conditions, they were not in respect of the same cause of action and consequently the second action was not barred.
21. In -- 'Amar Singh v. Tulsiram', AIR 1949 Nag. 195, it was observed in paragraphs .10 and 11:
'The identity of the cause of action is the 'sine qua non' to the application of Order 2, Rule 2. By the phrase 'cause of action' is meant all those facts which the plaintiff has to prove as part of his case to entitle him to a judgment. It frequently happens that the same transaction gives rise to different causes of action.'
After referring to -- 'Payana's case', XLI I. A. 142 and certain other cases it was further ob-served that the different claims arising from the same transaction need not necessarily be included in the same suit.
22. In -- 'Dunichand v. Jagdev', AIR 1949 E. P. 243, it was observed:
'A cause of action for the purposes of Order 2, Rule 2 has been defined as a bundle of essential facts which it is necessary for the plaintiff to allege and prove in order to get the relief claimed by him; and in order to decide whether the bar created by Order 2, Rule 2 applies to a certain suit or not, and whether the causes of action for the two suits can be said to be identical, the parties description of the nature of the claim and their description of their legal position cannot be regarded as conclusive. It is the effect and the substance of the claim and the true juridical nature of the relationship existing between the parties that has to be taken into consideration.'
23. While in the earlier case No. 78 of 1943-44, in order to get any relief against the mort-gagor it was necessary to prove that the alleged wrongful act of instigating Mst. Sarupi was done by the mortgagors, that fact would not at all be necessary to found a claim for possession against the trespasser Sarupi and after her death against her successors-in-title. The two causes of action are entirely different.
24. Learned counsel for the respondent cited certain cases where a subsequent suit for possession by a mortgagee was held to be barred after he had failed in his suit for recovery of the mortgage money -- 'Shivratan Singh v. Ram Singh', AIR 1925 Oudh 524 and -- 'Laiqa-ram v. Gokulchand', AIR 1936 Peshawar 86. But these were cases in which the dispossession was by mortgagor himself. A mortgagee who is dispossessed by the mortgagor or an assignee of the mortgagor has two remedies open to him. He may sue either for the mortgage money under Section 68 of the Transfer of Property Act or for possession of the property, and the two remedies being alternative against the same defendant arising out of the same fact of dispossession by the same individual, the mortgagee is to elect whether to sue at once for the money or for possession against the mortgagor.
Two other cases -- 'Ram Avtar Pandey v. Shanker Dayai', AIR 1926 Pat 87 and -- 'Hari-chand v. Melaram', AIR 1932 Lah 523 -- were also cited. These are converse cases. The earlier suit was for delivery of possession of the mortgaged property and on that suit being dismissed, the subsequent suit was for recovery of the mortgaged money. In the 'case of Ram Avtar Pande', the suit for possession was against the mortgagors and at the close of thecase, the mortgagee put in a petition that he might amend the plaint by an alternative pra-yer for recovery of mortgage-debt. The petition and the suit were dismissed and on a subsequent suit for recovery of money, it was held that the claim for money was also open to him in the earlier suit.
In the 'case of Harichand', the mortgage-deed contained a clause that if the mortgagemoney and interest were not paid by a certaindate, the mortgagee would be entitled to takepossession of the mortgaged property. On thefailure of the mortgagor to pay interest, themortgagee sued for delivery of possession. Thatsuit was dismissed for default and the mortgagee brought a second suit for recovery of hismoney and it was held that the cause of actionwas the same in both the suits. In both thesecases, it was the mortgagee who either dispossessed or had not delivered possession tothe mortgagee.
25. A case very near to the facts of the present case is -- 'Veerana Pillai v. Muthukuma-ra Asary', ILR 27 Mad 102. In that case, the mortgagee filed a suit for recovery of the mort- ^ , gage money against the mortgagors and their successors-in-title and also impleaded two other persons as defendants. One of them, defendant eighth, though let into possession as a tenant by the plaintiff set up a title in himself, and the other, defendant ninth, got into possession through the former and refused to surrender the land. The suit was dismissed on the ground that the mortgage was purely usufructuary and no suit for money could be maintained. Thereafter, the mortgagee sued for possession of the property impleading as defendants 1 and 2, the aforesaid two persons, and the mortgagors.
A plea that the subsequent suit was barred by Section 43 or Section 13 of the Code (Act No. XIV of 1882) was negatived and it was held that the causes of action in the two suits were different and the distinction is brought out by Boddam, J. that the cause of action in the former suit was to recover the mortgage amount by sale of the mortgaged premises whale the latter was a suit to recover possession of the land from persons who were in wrongful possession. Subrahmanya Ayyar, J. while dealing with the objection with reference to section 13 observed:
'No doubt, in the plaint in the suit of 1898 (earlier suit) reference was made among other things to the possession of the mortgaged lands by the plaintiffs to a letting by them of the lands to the then eighth (present first) defendant, and to the latter denying his alleged landlord's title and setting up a claim to the property himself. But though these averments may have been relevant as a reason for the inclusion of the eighth and ninth defendants in the suit in order to get an order for sale binding on them, yet it is manifest that in that suit, the plaintiffs could not, on the basis of those averments, have prayed for a decree for possession from the present defendants, since that would have been a clear case of misjoinder of causes of action and consequently the causes of action now relied on were not with reference to the previous suit.'
26. In the present case in the earlier suit the relief claimed was for a decree against the mortgagors for mortgage money to be recovered out of the sale proceeds of the property and further for a personal decree if the mortgagemoney remained unsatisfied from the sale pro-ceeds. No relief was claimed against Mst.Sarupi. Unfortunately, it was not mentioned inthe plaint why Sarupi was made a defendant;but in the criminal litigation which precededthe civil suit, Mst. Sarupi had claimed a rightof residence and she could be a proper partyin order to get an order of sale binding onher.
The subsequent suit out of which this appeal has arisen has been filed on a different cause of action, the cause of action being the right to recover possession of the property from the trespasser or her successors-in-title on the basis of possessory title. In our opinion, the present suit is not barred by the provisions of Order II, Rule 2, C. P. C.
27. We now take up issue No. 4. On this issue, the judgment of the lower court cannot stand. The reasoning of the lower court is that
'Jainarain, being himself out of possession of the house when the defendants wrongfully entered into the house, could not treat the defendants as trespassers and so the plaintiff who is the assignee of Jainarain cannot get a better title than Jainarain himself had.'
The view of law taken by the lower court is incorrect. The rightful person is entitled to possession irrespective of the fact whether the property has changed hands from one tres-passer to another or from the trespasser himself to his successor-in-title provided the suit is within limitation.
28. We now come to issue No. 5. The finding of the lower court is that the property was ancestral in the hands of Nand Ram and Achlu and there was neither any antecedent debt nor any family necessity for the alienation, and that Jagdish who had been born after the alienation but before the death of ail other coparceners who were in existence at the time of the mortgage, had a right to challenge the alienation. The lower court held that the mortgage was not binding on Jagdish. Learned counsel for the appellant argued that Jagdish, the only contesting defendant in this case, did not specifically raise this plea in the trial court.
It was also urged that in the rejoinder filedby the plaintiff a plea had been taken that onpartition between Nandram and Achlu, theproperty had fallen to the share of Achlu andconsequently any right that Jagdish mightclaim would be as an heir of AchJu and notas a coparcener, and the same considerationwhich applies to the coparcenary propertywould not apply in this case. A perusal ofthe written statement filed by Jagdish showsthat the only relevant matter was contained inpara 8 which is as follows:
'The possession of defendant No. 3 (Jagdish)on the property is from a time before thedeath of Mst. Sarupi and his possession isnot wrongful. The house is ancestral andthe right to mortgage did not exist. Themortgage is not valid and even if it hadbeen effected, the mortgagee is not entitledto possession'.
The rejoinder by plaintiff was that
'para 8 of the written statement was wrong, the mortgage was executed both by Nandram and Achlu and by a certain partition deed between them, the house fell to the share of Achlu. The mortgage was valid. Theowners of the house had mortgaged it. Possession of Jagdish was wrongful and the plaintiff had a right to get him ejected'.
On this, the issue raised was:
'Whether the mortgage executed by the defendant No. 1 and his brother Achlu was unauthorised and therefore invalid?'
While it can be said that the defendant Jagdish had raised the question of validity of the mortgage, it is necessary under Order 8, Rule 2, C. P. C. that the defendant should raise by his pleadings all matters which show that the transaction was either void or voidable in point of law. He should also take all such grounds of defence as would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality. It was, therefore, not enough for the defendant to raise a vague plea that the mortgage was unauthorised. He should have pointed out the defects which made the alienation invalid. He should, for instance, have said that the transfer was not in lieu of antecedent debt or for legal necessity. Similarly, it was quite vague to say that the property was ancestral. He should have given some indication in what manner, he considered the property to be ancestral, whether, for instance, it had been acquired by the father or grandfather or any other ancestor of Nandram, or had been acquired by ancestral funds. The right of Jagdish to challenge the alienation has also not been made the subject of an issue. Learned counsel for the appellant contended that the right to challenge had been extinguished by lapse of time within which it could be challenged. As these matters have not been properly considered by the lower court and it is not possible to come to any conclusion on the meagre material on record. On these points certain issues will have to be framed and tried. We, therefore, frame the following issues:
'(1) Is the property in dispute ancestral? (2) Did such members of the family as were alive on the date of the mortgage from a joint Hindu family with Nandram as their 'karta'? (3) Has Jagdish a right to challenge the alienation on the ground that though born after the alienation he had come into being before the right of the last member (who was alive at the time of the mortgage) to challenge had become extinguished? (4) Was the alienation made for legal necessity? (5) Was the transfer made in lieu of antecedent debt? (6) Whether there was partition between Nand Ram and Achlu and this property came to Achlu's share? If so, what is its effect?
29. It may be pointed out that learned counsel for the respondent argued as regards Point No. 3 that as Jagdish had come to be in possession of the property, the bar of limitation did not rule out his defence. We do not propose to express any opinion on that aspect of the case at present but would deal with it on receipt of the findings on the aforesaid issues.
30. Learned counsel for the respondent triedto support the judgment of dismissal of thesuit by an argument in respect of issue No. 3which is as under:
'Whether Jainarain assigned his iaterest inthe mortgage bond dated Besakh Vadi 7, Smt.1975 to the plaintiff's father and executedthe 'Tehrir' dated 31st March 1944?'
It was urged that although the defendant did not challenge the assignment made by Jai-narain in favour of Shri Shambhu Nath, it had not been proved in this case that he was the father of the plaintiff Indernath. This argument is frivolous since it appears from a perusal of the record that at no stage was it contended that the plaintiff was not the son of Shri Shambhu Nath.
31. No arguments were advanced in respectof issues Nos. 7, 8 and 10 which had beendecided in favour of the plaintiff.
32. On the question of limitation, it may only be stated that the Marwar Limitation Act 1926 was applicable which provided a period of 20 years for institution of a suit for possession under Article 144 of that Act and the suit was within 'time.
33. We hereby remit the aforesaid issues to the lower court for a finding on the same which should be sent to this Court within four months. Parties will be at liberty to produce fresh evidence on these issues.