1. This is an application under Article 226 of the Constitution of India. It is directed against the decision of the learned Members of the Board of Revenue Rajasthan passed in second appeal on 23rd December, 1961.
2. Briefly stated, the facts giving rise to it are as follows:--
The petitioner's father Gangasahai and one Pusharam, who were descendants of a common ancestor Bhudarmal, were Khatedars of Khasra Nos. 765, 766, 769, 873, 874 and 946, in all measuring 13 bighas 2 biswas, situated In village Giglana, Tehsil Behror. Gangashai died in the life-time of Pusharam. On Pusha Ram's death in March 1945, respondent No. 2 Kirparam, who claimed to be his adopted son, got the said land mutated in his name. The petitioner contested the mutation proceedings commenced at the instance of Kirparam, but he was not successful. In the meanwhile, the landlords of the said fields took possession of them and so Kirparam had to file a suit for recovery of the possession of the said fields against the landlords in the Court of the Assistant Collector, Behror on 5th September, 1945. He obtained a decree (Ex. 2) for possession from the said Court on 18th February, 1943. It was, however, on 11th March, 1949 that he could obtain actual possession of the said fields according to the said decree.
3. On 14th August, 1946, the petitioner brought a civil suit (Appendix A) for a declaration that Kirparam's alleged adoption by Pusharam as a son was invalid and that the adoption-deed, which was executed on 19th June, 1941 and registered on 28th August, 1941 should be cancelled. The trial court dismissed the suit on 12th November 1951, but, on appeal, the Civil Judge, Alwar, reversed that judgment and decreed the suit holding that Kirparatn's adoption was invalid and that the said adoption-deed was null, void and ineffectual against the petitioner. Respondent No. 2 went in appeal to the High Court, but that appeal was dismissed on 9th September, 1959.
After his success in the Court of Civil Judge, Alwar, the petitioner filed a suit for possession of the said field against respondent No. 2 in the Court of Assistant Collector, Bahror, on 1st July, 1954, Kirparam contested the suit on several grounds. He went to the extent of saying that Ramjilal was not the son of Gangasahai. The revenue court framed as many as twelve issues and after examining the evidence of both the parties, decreed the petitioner's suit for possession in his favour.
Aggrieved by that judgment dated 22nd August, 1957, respondent No. 2 filed an appeal which was heard by theAdditional Commissioner, Jaipur. The appellate Court dismissed the appeal on 16th December, 1959. Respondent No. 2 thereupon filed a second appeal in the Board of Revenue. He raised twofold objections. His first contention was that the suit was time-barred and his second contention was that the suit was not maintainable on account of the provisions of Order 2, Rule 2 of the Code of Civil Procedure.
His first contention was repelled by the learned Members of the Board of Revenue but as regards the second objection, it was held that when the petitioner brought his first suit for declaration and cancellation of the adoption-dead in the civil court, he should have also asked for the relief about the possession of the property, that the civil court was competent to entertain his suit for possession of the agricultural property at that time, that even though defendant Kirparam was not in actual possession of the disputed property when the suit was filed, the plaintiff could have impleaded the landlords who had dispossessed Kirparam and that since the plaintiff omitted to ask for the relief of possession without the leave of the court, he was debarred from bringing the second suit which was filed by him in the revenue court on 1st July, 1954.
On this ground, the Second appeal of respondent No. 2 was allowed, the judgment and decree of both the courts below were set aside and the petitioner's suit was dismissed. It is the correctness of this judgment dated 23rd December, 1961 which is sought to be challenged by this application.
4. It is contended by learned counsel for the petitioner that the learned Members of the Board of Revenue had failed to exercise their jurisdiction in throwing out the petitioner's suit for possession without entering into the merits of the case and that they had also committed an error, which is patent on the face of the record, in holding that the petitioner's suit was barred on account of the provisions of Order 2 Rule 2 of the Code of Civil Procedure.
It is urged that the learned Members had not reversed the concurrent finding of the two courts below to the effect that respondent No. 2 was not in possession of the disputed property on 14th August, 1946 when the petitioner had filed the first suit in the civil court for declaration and cancellation of the adoption-deed. The landlords had taken possession of the land and they were denying the right of respondent No. 2 himself to obtain possession thereof. Under the circumstances, the petitioner could not possibly file a suit for possession of the disputed property against respondent No. 2 and even if he had filed a suit for possession, he could not obtain the relief from the court, because the court could not pass a decree for possession against Kirparam when he himself was not in possession of the property.
It is further contended that it was not obligatory for the petitioner to implead the landlords in the same suit in order to obtain possession of the property from them.' The cause of action against the landlords was totally different from the cause of action against Kirparam and there was no provision of law whereby the petitioner could be compelled to combine the two causes of action, even if it be assumed that he had the option to bring such a suit by impleading both the sets of defendants. It is, therefore, prayed that the order of the Board of Revenueshould be set aside and the case should be remanded with direction to decide the second appeal on merits.
5. In reply, it is urged by learned counsel for respondent No. 2 that his client had obtained a decree for possession of the disputed property against the landlords on 18th February, 1946, that he had also obtained an order for mutation in his favour on 14th June, 1946 and, therefore, when the petitioner brought the suit on 14th August, 1946, he ought to have sued for possession also and that since he failed to do so, the revenue court was quite correct in holding that his suit was barred under Order 2, Rule 2, C. P. C. Learned counsel has tried to support his argument by referring to the decisions of their lordships of the Privy Council in Naba Kumar Hazra v. Radhashyam Mahish, AIR 1931 PC 229 and Mohammed Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78.
6. Since the decision of this writ application depends upon the interpretation of Order 2, Rule 2, C. P. C., it would be proper to reproduce it here. It runs as follows:--
'Rule 2 of Order 2 -
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) 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 Ire omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted.
Explanation.-- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.'
7. It may be observed that the said Rule is based on the principle that the defendant should not be vexed twice for one and the same cause. It prohibits the splitting of claims and the splitting of remedies and further provides a penalty if the claim or remedy is split without the leave of the Court. Sub-rule (1) requires that every suit must include the whole of the claim which the plaintiff is entitled to make in respect of a certain cause of action. The plaintiff is, no doubt, permitted to relinquish any portion of his claim in order to bring the suit within the jurisdiction of the Court, but Sub-rule (2) lays down that if the plaintiff omits to sue in respect of any portion of his claim, he would be debarred from suing in respect of the portion so omitted or relinquished for ever. Sub-rule (3) similarly permits a plaintiff who is entitled to ask for more than one relief in respect of the same cause of action, to sue for all the) reliefs which may be claimed, or to request for any of such reliefs only, but if he does not obtain the previous permission of the Court for omitting the relief or reliefs which he is entitled to ask for, he would be debarred from suing for the relief or reliefs which he has emitted. This Rule does not require that the plaintiff must unite in the same suit all the causes of action which he may have against the defendant, nor does it operate as a bar when the subsequent suit is based ona cause of action different from that on which the first suit was based.
8. Now, in the present case, when the petitioner mad the first suit on 14th August, 1946, his claim was only for a declaration to the effect that the adoption of respondent No. 2 by Pusharam was invalid in law and for the relief that the adoption-deed should' be cancelled. Ac-cording to the admission of respondent No. 2 himself, he was not in possession of the property in respect of which the second suit was filed on 1st July, 1954. It cannot therefore, be said that the plaintiff had intentionally relinquished any portion of his claim or that he omitted to ask for a relief which he could get from respondent No. 2. Even if he had sued for possession against respondent No. 2, he could not obtain a decree for possession against a person who was admittedly not in occupation of the same. It would, therefore, have been futile on the part of the petitioner to sue for possession against respondent No. 2 at that time. Order 2, Rule 2 C. P. C. does not require that a person must seek all the remedies to which ha may be entitled even though it be impossible for him to obtain them from the opposite party. It is true that respondent No. 2 had obtained a decree for possession against the landlords on 18th February, 1946, i.e., about six months prior to the institution of the petitioner's suit, but the petitioner was not a party to that suit. It had no-where been mentioned in the judgment of the learned Members of the Board of Revenue if the petitioner was even aware of the decree which respondent No. 2 had obtained against the landlords.
Morever, even if it be assumed for the sake of argument that the said decree was in the knowledge of the petitioner, then too, he could not sue for possession, because respondent No. 2 was not put in actual possession of the property in execution of the decree. It was about three years after, i.e., on 11th March, 1949 that respondent No. 2 got possession of the property.
In our opinion, the learned Members committed an error, which is patent on the face of the record, in holding that the petitioner ought to have sued for possession at the time when he filed the first suit on 14th August, 1946.
Learned counsel for respondent No. 2 candidly conceded before us at the time of the arguments that if the petitioner had filed a suit against respondent No. 2 alone, then he could not have obtained relief of possession and so it was not necessary for him to pray for it. His contention however was that the petitioner should have im-pleaded the landlords as defendants in the suit for possession and that since ha failed to do so, he was debarred from claiming that remedy under Order 2, Rule 2, Sub-rule (3) Civil Procedure Code. This is also the line of reasoning adopted by the learned Members of the Board of Revenue.
This contention is, however, not tenable, because the petitioner's cause of action in the first suit against respondent No. 2 was totally different from the cause of action which he would have had against the landlords. Against respondent No. 2, the petitioner's grievance was that the adoption of respondent No. 2 by Pusharam was invalid in law and his adoption was, therefore, fit to be cancelled. He had, no doubt, filed the suit in order to remove the cloud from his title to the property of deceased Pusharam, but it is obvious that he was doing this as a rival successor to Pusharram's property. His cause of action againstthe landlords was totally different. There was no rivalry between him and the landlords about succession to the property of Pusharam. The relation between the landlords and deceased Pusharam was that of a landlord and a tenant. Against the landlords, both the petitioner and respondent No. 2 stood as rival successors of the deceased tenant. The petitioner's and respondent No. 2's cause of action against the landlords was of a similar nature. Against the landlords, the petitioner claimed possession because he thought that the landlords had unlawfully ousted him. Thus, the causes of action in the plaintiff's first suit and in the. second suit were totally different. Hence Order 2, Rule 2 could not come in the way of the petitioner when he filed the second suit.
9. It is conceded by learned counsel for respondent No. 2 that the order 'passed in mutation proceedings did not bar the petitioner's right to file a suit, because the mutation was done on the basis of the possession and in the order itself it was observed that the petitioner was free to file a suit.
10. We have now to see whether the authorities on which reliance has been placed by learned counsel for respondent No. 2 are of any help to him.
11. In the first case, AIR 1931 PC 229 referred above, the first suit was filed for conveyance of certain properties. The second suit was filed against the same defendants for rents and profits. It was in those circumstances that it was held by their lordships that since the relief for rents and profits could have been prayed for in the previous suit for conveyance of the properties and it arose out of the same cause of action, the second suit was barred under Order 2 Rule 2, C. P. C.
It is obvious that the facts of the said case were very different from those of the present case. It has already been pointed out above that here the causes of action in both the suits were very different and, therefore, the observations made by their lordships in the said case are not applicable to the facts and circumstances of the present case.
12. In the next case AIR 1949 PC 78, referred above, it was observed by their lordships as follows :--
'Shortly stated Order 2, Rule 2, C. P. C. enacts that ifa plaintiff fails to sue for the whole of the claim which he is entitled to make in respect of a cause of action In the first suit, then he is precluded from suing in a second suit in respect of the portion so omitted..........The object of the rule is clearly to avoid splitting upof claims and to prevent multiplicity of suits.'
Their Lordships then further proceeded to observe-
'The phrase 'cause of action' was not defined in any enactment, but its meaning was judicially considered in various decisions.'
Their lordships then referred to a number of cases and observed that 'the principles laid down in the cases discussed by them may be thus summarised:
(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 fact which will be necessary for the plaintiff to prove if traversed in order to support his 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 identi-cal.
(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.'
In the light of the above principles, it would appear that Order 2, Rule 2, did not preclude the petitioner from claiming the relief of possession from respondent No. 2 in the second suit, because the new suit was founded upon a cause of action which was distinct from that which was the foundation of the former suit. It is also clear that the evidence to support the second claim was very different from the evidence which was necessary in the first suit. In the case before their Lordships, the first suit was Instituted by the plaintiffs as successors to deceased Rani Barkatuhnissa for the recovery of certain properties situated in District Shahjahanpur. The second suit was filed by them in the same capacity against the same defendants for the recovery of the property situated in the districts of Sitapur and Hardol in the Province of Oudh. It was, in those circumstances that it was held that the second suit was barred. It has been reiterated by their Lordships more than once that their observations should be interpreted in the light of the facts and circumstances in which they are made. Viewed in that light, the observations made by their Lordships in the said cases are of no help to respondent No. 2 in the present cases.
13. On the contrary, we may point out that in Rajah of Pittapur v. Venkata Mahipati Surya Rao, 12 Ind App 116 (PC), it was observed by their Lordships of the Privy Council, following the earlier view expressed in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, 11 Moo Ind App. 551 (553) (PC) and which was again referred by their Lordships in AIR 1949 PC 78 referred above that 'Section 7 of Act 1859 (which now corresponds to Order 2, Rule 2, C. P. C.) does not say that every suit shall include every cause of action, or every claim which the party has, but 'every suit shall include the whole of the claim arising out of the cause of action', meaning the cause of action for which the suit is brought.' In that case thei plaintiff had sued to recover immovable property in consequence of having been improperly turned out of possession. The second suit was to recover from the same defendant movable property in consequence of its wrongful detention. It was held that the causes of action were distinct and Section 7 of the Act VIII of 1859 did not apply.
14. We think it unnecessary to burden the judgment by referring to other authorities. In our opinion, the learned Members of the Board of Revenue have committed an error, which is apparent on the face of the record i.e. from the very perusal of their judgment, in dismissing the suit filed by the petitioner on the ground that it was barred by Order 2, Rule 2 of the Code of Civil Procedure. They have also failed to exercise their Jurisdiction by giving an incorrect interpretation to Order 2, Rule 2 and not deciding the suit on merits.
15. We therefore, allow the writ application and set aside their impugned decision about Order 2, Rule 2 of the Code of Civil Procedure. The case may be sent back to the Board of Revenue for deciding the second appeal afresh.
16. The petitioner will receive his cost from respondent No. 2 in this Court.