1. The point is a short one but not very easy, and it is after some doubt that I have arrived at the conclusion that the Courts below are right.
2. The question is whether the cause of action in respect of which the two suits have been instituted is one and the same, and to arrive at the answer we must, I think, have regard to the position of affairs at the date of the earlier suit.
3. At that date the plaintiff had by two separate transactions acquired the shares of two out of five (or perhaps four; the number is unimportant for my present purpose) members of an undivided family. The shares had not been separated, and to obtain the benefit of his purchases the plaintiff, being driven to a suit, had to sue the whole family. At the date of the suit he could say ' I am entitled to two-fifths of the family property,' but he could not say ' I am entitled to one fifth here and to one fifth there to one fifth of such and such fields and to one fifth of such and such other fields.' His second purchase had augmented the proportion of the whole to which he was entitled, but, did not give him a right to localise a second distinct fraction of it.
4. His right was against the whole family to have two-fifths (if that be the correct fraction) marked out and put in his possession; he could not sue his vendors separately for neither of them with the concurrence of the other and of all the other members of the family was in a position to put him in possession of anything.
5. That being so, it seems to me he had a single cause of action against the family, and the fact that he had to put in evidence two sale deeds does not seem to affect the cause of action.
6. The fact that the right of possession was vested in him at different dates is not material; that is made clear by the illustration to Order IIRule 2 of the Civil Procedure Code.
7. Had the two vendors sold their shares by one deed in which both joined, it could not, I think, be denied that the plaintiff's cause of action against the family would have been single, and the case does not seem to me to be altered by the fact that there are two deeds.
8. For it is not the fact of acquisition which gives the cause of action. If the plaintiff, instead of asking for possession, had transferred his right to some third person, that person would have had, I venture to think, but one cause of action against the family, and the plaintiff would never have had any cause of action I take it when the claim is denied; and when the plaintiff's claim was denied, he was in possession of a right as against the family to two-fifths of their property; if, then, he sued for one fifth only, he must be taken, as a matter of law, to have omitted part of his claim in respect of his cause of action.
9. I do not think it necessary to discuss the numerous cases in which the provision of the Code which is now found in Order II Rule 2 has been in question; each case must depend on its own facts, and it is often a difficult matter to decide what facts form part of a particular cause of action. Of the cases cited before us, Kuppusami Aiyar v. Subramanya Aiyar (1896) 7 M.L.J. 73 and Kuthirvattath Nair v. Manavickrama (1897) 8 M.L.J. 92 may be distinguished on the ground that in both cases different and separate parcels of land were in question in the two suits. In the latter case Subrahmania Aiyar J. suggests that the first suit was really incompetent, and if so, that would be a case in which there was really no cause of action in one of the suits. In Skafkat-un-nissa v. Shib Sahai I.L.R. (1881) A. 171 relied on by the District Judge, the claim was under two different titles, as here, and that case, though not entirely on all fours with this, tends support to my view of the matter.
10. The appeal is dismissed with costs.
11. In the earlier suit the plaintiff claimed partition of the co-parcenary property under the sale deed of 1904, transferring to him the share of one of the co-parceners. In the present suit; the plaintiff claims partition of the share coming to him under the sale deed of 1895 from another co-parcener. The question is whether the present suit is barred under Order II Rule 2 of the Civil Procedure Code.
12. The present suit is not barred unless the causes of action in the two suits are the same and unless the present claim was included in the claim which the plaintiff was entitled to make in respect of the previous cause of action.
13. It is argued that the cause of action in the present case is distinct from the cause of action in the previous case, and the claim in the present case, it is admitted, might and perhaps ought to have been joined with the claim in the earlier suit, no necessity is shown or explanation offered why two suits are instituted; but it was contended that the present claim could not be said to be 'included in the claim in respect of the cause of action ' on which the previous suit was instituted. It is clear that a great portion of the ' bundle of facts ' which have to be proved by the plaintiff in the two suits is common, but there is one set of facts in each case which is not common, viz., the execution of the respective sale deeds and the transfer of the shares under them. It is not always easy to decide whether a particular fact is of such importance as to require it to be considered as a part of the cause of action or is such that it must be relegated into the category of the evidence by which the facts making up the cause of action are to be established. The question necessarily involves a clear determination of the cause of action.
14. The cause of action in each of these cases is the right to sue all the co-parceners for partition of the estate and for delivery to the plaintiff of such share as he is entitled to receive out of the co-parcenery properties at the time of the suit. The cause of action is not to have the rights of the plaintiff under the sale deeds enforced.
15. For, so far as the sale deeds are concerned, their function was exhausted prior to the first suit. Each of the plaintiff's vendors had permitted the plaintiff to step into his shoes as a co-parcener, and the plaintiff came into the Court on the basis of a new relationship that had arisen, no doubt through the medium of the sale deeds, but, which could only arise after the sale deeds had had their full effect If this is correct, then it seems to me that the sale deeds must be considered to be of secondary importance and as mere steps in that state of circumstances being arrived at which gave rise to the cause of action. On the whole, therefore, though not without hesitation, I think that in this case the execution of the two sale deeds must not be considered to form integral parts of the cause of action in each case. The plaintiff's cause of action was to have his share in the co-parcenery property partitioned and as he proceeded in the fresh suit on the basis that his share included only his rights under one of the sale deeds he is barred from claiming now under the other sale deed, no circumstances being alleged to prevent the inference of law arising that the present claim was abandoned in the first suit.
16. It therefore follows that the appeal must be dismissed with costs.