Subba Rao, J.
39. This Court-fee matter is placed before us again after the Full Bench answered the reference made to it. The Full Bench held that 'distinct subjects' in Section 17, Court-fees Act meant 'distinct causes of action in respect of which separate suits should be filed but for the enabling provisions allowing them to be clubbed up in one suit.'
40. The question is whether in the present case distinct causes of action are united in the same action. What does 'cause of action' mean? Learned counsel appearing for the appellants and for the Government put forward two conflicting views, Learned counsel for the appellants would argue that cause of action means unity of title, whereas the Government Pleader would contend that the cause of action means any fact which, if traversed, would bs necessary for the plaintiff to prove, in order to support his right to the judgment of the Court. We shall now proceed to test the validity of the respective arguments.
41. There is no definition of 'cause of action' in the Civil Procedure Code; but it is the funda-mental pivot around which many of the provisions of the Civil Procedure Code revolve. It is the basis for the maintainability of the suit. It is the foundation for the adding up of parties, and it is an important ingredient in working out the principle of res judicata and that embodied in Order 2, Rule 2, Civil P. C. It has, therefore, necessarily become the subject of judicial scrutiny. Bretts J. defined it in -- 'Cooke v. Gill', (1373) 8 CP 107 (Z1) a leading case on the subject, to mean 'every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse.' In -- 'Bead V. Brown', (1889) 22 QBD 128 (Z2), Lord Esher adopted the same definition, but expressed it in more felicitous language as follows :
'Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.'
Lord Watson in 'Chandkour v. Partab Singh', 16 Cal 08 (PC) (Z3) approved of the definition, butadded a rider that
'the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff.'
Subsequent decisions have followed the lead given by the earlier decisions.
42. It is not necessary to multiply cases, for it is now fairly well-settled that 'cause of action' means the bundle of essential facts which is necessary for the plaintiff to prove before he can succeed in the suit. Or to put it differently, it refers 'to the media upon which the court arrived at a conclusion in his favour.' To define it is comparatively easier but to apply it to the facts of each case is more difficult. Ordinarily either in an action based on contract or founded on tort the plaintiff cannot get his relief unless he alleges and proves that he has a right and that the said right is infringed by the defendant. Mere assertion of a right or even the proof thereof cannot be the foundation for a relief, unless the defendant questions the right, casts a cloud on it or does some act in derogation of it. To illustrate, A purchases a property from B under a gale deed. He takes possession. C trespasses on it. A cannot recover possession unless he proves his title and also the factum of trespass by C. a defendant may raise different pleas to nonsuit the plaintiff such as paramount title, adverse possession, etc. Though the pleas taken by the defendant may not form part of the cause or action; the act of trespass by the defendant is a part of the cause of action, for without proof of that fact, no relief can be given to the defendant
43. To take another illustration, A, the widow, alienates portions of her husband's property to B, C and D on different dates. After her death, the reversioner files a suit to recover the entire property from all the alienees on the ground that the widow had no power to alienate the same. Here the reversioner has a unity of title. He succeeds to the estate of the last male-holder on the basis of the title. He can sue to recover property alienated by the widow. Though his title is the same in respect of all the properties, the validity of each alienation depends upon the peculiar circumstances of each case. He may elect to question some and decide to abide by others. The various defendants' possession is to ba traced to the respective sales in their favour. Some alienations may be void and some may be valid. Before the reversioner can succeed, he must allege and prove (1) he is the reversioner; (2) the widow has no right to sell the property; and (3) the defendants are in possession under invalid sales. The cause of action in such a suit is the bundle of all the aforesaid facts. In the case of each alienee, an additional and a different fact has to be proved, namely, his possession under a particular invalid alienation; for without such proof his claim to that extent will be rejected. This additional fact added to the common bundle makes it a different cause of action. A plus B, A plus C and A plus D are not the same as A. So too is the case of alienation by members of a joint Hindu family.
44. Can a different principle operate in the case of void transactions? Indeed, even in the case of an alienation by a limited owner, it is voidable in the sense that it is open to the reversioner to elect to abide by it when the estate falls into his possession. If it is not for necessity, it does not require to be set aside by him; he can treat it as a nullity. We may take another illustration. If a trustee alienates his ward's property as if it were his own, the alienation is void. The alienee would be in the position of a trespasser. The fact that the alienee is in unlawful possession of the trust property under a colourable void transaction is an important faggot in the bundle constituting the cause of action. As in the case of trespassers, his unlawful possession must be alleged antl proved, for without such proof no relief can be given against him.
45. At this stage we may notice some of the cases cited at the Bar. In -- 'Sami Chetti v. Ammani Achi', 7 Mad HC 260 (Z4), the plaintiff's father having died while he was young, his lather's widows during his minority alienated the whole of the estate in portions to different people at different times. The plaintiff brought a suit against all the alienees to recover the estate as a whole. The lower court dismissed the suit on the ground of mis joinder of causes of action. Holloway A. C. J. held on appeal that the plaintiff's cause of action the right was his relation to the family to which the property appertained, and on this right, if established, and if it was not otherwise barred, he was entitled to that share wherever found, and the fact that various persons during his minority have affected to purchase parcels of the property does not destroy the unity of his ground of action. It is true that this decision supports the plaintiffs' contention; but this is a decision under the old Code. By that time, the conception of a cause of action us a bundle of facts necessary for the plaintiff to prove to secure a judgment in his favour had not been developed. We cannot, therefore, equate the causa of action with the plaintiffs' title to the property.
46. In the same report there is another case bearing on the point, -- 'Vasudeva Shanbhaga v. Kulendi Narnapsi', 7 Mad HC 200 (Z5). There the plaintiffs who were members of a Joint Hindu family brought a suit against a number of alienees of a deceased member of an undivided family for the recovery of family property illegally alienated by him. It was argued that the suit should be dismissed on the ground of multifariousness. In dealing with that argument, the learned Judges held that:
'It is most desirable that the whole of the alienations should be at once before the court called upon to decide the question, In order to secure the soundness of the particular decision and perhaps the avoidance of discordant decisions in different cases upon facts nearly thesame.'
This judgment only recognised the necessity for uniting all the causes of action in one suit for convenience of disposal and for ensuring finality. This principle is now embodied in Order 1, Rule 1 and Order 1, Rule 3, Civil P. C.
47. In 'Mohamed v. Krishnan', 11 Mad 108 (Z6), Muthuswami Aiyar and Parker JJ. discussed the scope of the judgment in 7 Mad HC 290 (25). In that case also, a number of alienees were added to the suit. The contention was raised that the suit was bad for misjoinder of parties. It was argued that each of the alienees had a distinct interest in some of the items of property specified in the schedule annexed to the plaint and no interest whatever in the rest of the property in litigation, that the cause of action regarding each was separate, and that the union of several such causes of action in one suit was contrary to Section 45, Civil P. C. In dealing with that contention, the learned Judges observed at p. 111 :
'In our judgment, it makes no difference whether the right enforced is that of a coparcener or a reversioner, for the object in both is to reduce to possession a vested interest as well in property illegally alienated as in the property held by the managing member or by the tenant for life. In the view that the primary ground of action is the interest vested in possession as regards the whole of the property in suit, there is a unity of title, and the claim made is one in respect of the same cause of action.'
We cannot agree with the learned Judges that the cause of action is the same, though such a suit would not now be bad for multifariousness, by reason of Order 1, Rule 3, Civil P. C.
48. In 'Gangi v. Ramaswami', 12 Mad LJ 103 (Z.7), Bhashyam Aiyangar J. struck a different note which is more in consonance with the later view regarding the meaning of the word 'cause of action.' There a first suit was brought by the plaintiffs for the recovery of some land which was in the possession of the defendant on the ground that they succeeded to the father's estate, and that the alienation made by the mother during her lifetime was bad. They obtained a decree therein, but subsequently they filed another suit to recover possession against another defendant in respect of another item which they claimed as part of the same inheritance. It was contended that the later suit was barred by Section 43, Civil P. C. In dealing with that contention, Bhashyam Aiyangar J. made the following pertinent remarks at p. 105 :
'The former suit was instituted against the de-fondant therein, by reason of his wrongfully withholding from the plaintiffs, on the death of their mother, possession of the land in Schedule B, and the present suit is brought on the defendants herein similarly withholding the land comprised in schedule A, the defendants in both the cases having respectively come into possession of the lands comprised in schedules B and A under separate alienations made by the mother in favour of each on a different occasion. It will thus be seen that though the ground of title is one and the same in both the suits and the cause of action in respect of both arose at the same time, viz., the date of the mother's death, yet the persons who wrongfully withheld the land in schedule A are quite different and there was no manner of combination or privity between them in respect of the lands which they severally withheld.
'The words 'cause of action' have fill along been held to mean 'every fact which it is material to be proved to entitle the plaintiff to succeed; every fact which the defendant would have a right to traverse' and have no relation whatever to the defence, but refer entirely to the grounds set forth in the plaint as the cause of action: (1873) 6 CP 107 (Z1), -- 'Shankar Baksh v. Daya Shankar', 15 Ind App 66 (PC) (Z8), 16 Cal 98 (PC) (33).
'Though the ground of title on both suits are founded in one and the same and the causes of action also arose at the same time, yet the properties comprised in the two suits are different and the persons who severally withheld the same are also different. A reference to Section 50, C. P. C. clearly shows that in every suit the plaint must show that the defendant is or claims to be interested in the subject matter and that he is liable to be called upon to answer the plaintiff's demand. This clearly shows that the cause of action is not an abstraction, something independent of the defendant, but that the plaint should disclose a cause of action against the defendant.'
We respectfully agree with the aforesaid observations of the learned Judge, and this passage clearly brings out the distinction between the ground of title and the cause of action. A cause of action is something more than a ground of title. It not only includes the facts necessary to support the plaintiff's title, but also the facts which entitled him to relief against a particular defendant.
49. An interesting and instructive discussion, if we may say so, on the question raised is found in -- 'Bahadur Singh v. Sultan Husain Khan', AIR 1922 Oudh 171 (Z9). Syed Wazir Hasan A. J. C. held that,
'A reversioner has a separate cause of action in respect of each alienation made by the widow, and a suit to recover property comprised in one alienation is not barred by Order 2, Rule 2, C. P. C. by reason of a proper suit for the recovery of property comprised in another alienation.'
The learned Judge traced the history of the meaning of the words 'cause of action' and then made some weighty observations to the following effect at p. 175 ;
'Though the cause of action has no relation to the defence which may be set up by the defendant, yet it would be an error to suppose that it has no relation to the defendant and his acts preceding the suit. A 'cause of action' is not a theoretical term entirely picked up from text books and placed on a plaint. In cases of torts, the right of the plaintiff and its infringement by the defendant will generally make up the 'cause of action'. In --'Williams v. Morland', (1824) 107 ER 620, cited by Bowen L. J. in -- 'Bransden v. Humphrey', (1885) 14 QBD 141 (Z11), Little-dale J. said 'Generally speaking, there must be a temporal loss or damage accruing from the wrongful act of another, in order to entitle a party to maintain an action on the case.' Order 7, Rule 5 (Act 5 of 1908) is based on the same principle. It is as follows : 'The plaint shall show that the defendant is or claims to be interested in the subject matter and that he is liable to be called upon to answer the plaintiff's demand. 'Now in the present case the defendants' connection with the land in suit is wholly different from his connection with the lands covered by the other saies both in point of time and the subject matter of the alienations. Their act of infringement of the plaintiffs' right qua the property in suit is ' different from their act or acts of infringement of the plaintiffs' right qua one or the . other of the properties previously in suit.'
It would be seen from the aforesaid decisions that though under Act 3 of 1859 this court was inclined to take the view that the unity of title was synonymous with cause of action, the later decisions clearly laid down that cause of action was something more than unity of title, and that it would include not only the right of the plaintiff but also the facts disclosing the infringement of that right,
50. If the aforesaid principles are applied to the facts of the instant case, we have no hesitation in holding that the suit comprised distinct causes of action. The appellants' father executed two gift deeds in favour of their mother. The mother sold them under sale deeds on various dates to defendants 1, 2, 3, 4, 5th defendant's husband and 35th defendant. Defendants 6 to 32 are alienees from the 5th defendant's husband. The plaintiffs ask for a declaration that the alienations in favour of the different defendants are not binding on them. The plaintiff has a separate cause of action against each of the alienees in respect of the property alienated in his favour. Each declaration relates to a 'distinct subject' within the meaning of Section 17, Court-fees Act. The appellant should, therefore, pay court-fee in respect of each declaration and the total amount of court-fee payable by them on that basis would be Rs. 1400. Two months time granted for the payment of additional court-fee.