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Raja Kesava Venkatappiah Alias Venkatappa Rao Garu and ors. Vs. Nayam Venkatranga Row Garu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in6Ind.Cas.603
AppellantRaja Kesava Venkatappiah Alias Venkatappa Rao Garu and ors.
RespondentNayam Venkatranga Row Garu and ors.
Excerpt:
civil procedure code (act xiv of 1882), section 43, applicability of - suit to include the whole claim - .....by the representatives of the 4th plaintiff in o.s. no. 45 before issues were settled in the other suit; the suit thus instituted was moved into the district court and issues were settled in both on the same day. the claim in suit no. 56 is to succeed as reversionary heir to kodanda ramiah if the estate is impartible or if kodanda ramiah's widow and daughter are found to have held the whole of it as his separate property. the district judge has held that the suit is barred by section 43 of the code of 1882. assuming it to be open to the defendants now, in spite of their objection in the former suit, to contend that the causes of action in both suits are identical, we do not think the contention can prevail. though the plaintiffs in suit no. 56 alleged as the ground of their suit the same.....
Judgment:

1. We think the Suit No. 56 of 1895 was not barred. The defendants in their additional written statement in O.S. No. 46 of1895 alleged that the claims of the plaintiffs in that suit, as reversionary heirs, could not be joined with the other claims in that suit and that only the nearest of reversioners could sue on that ground and not all the plaintiffs jointly. In consequence of that objection, Suit No. 56 was instituted by the representatives of the 4th plaintiff in O.S. No. 45 before issues were settled in the other suit; the suit thus instituted was moved into the District Court and issues were settled in both on the same day. The claim in Suit No. 56 is to succeed as reversionary heir to Kodanda Ramiah if the estate is impartible or if Kodanda Ramiah's widow and daughter are found to have held the whole of it as his separate property. The District Judge has held that the suit is barred by Section 43 of the Code of 1882. Assuming it to be open to the defendants now, in spite of their objection in the former suit, to contend that the causes of action in both suits are identical, we do not think the contention can prevail. Though the plaintiffs in Suit No. 56 alleged as the ground of their suit the same dispossession as was alleged in O.S. No. 45, the title to possession which is, of course, a part of the cause of action, is not only a different title than that claimed by them in common with the other plaintiffs in Suit No. 45 but is a, title which is not consistent with the common title set up in that suit. It is in fact a title adverse to that of the other plaintiffs. The authorities on which the Advocate-General relies in support of his contention that a plaintiff basing a suit on the ground of dispossession cannot, if he alleges one title to possession in that suit, afterwards bring another suit on the same ground of dispossession but alleging a different title do not, we think, apply to the case where the plaintiffs are in fact different persons, when in the one case the title set up is alleged to be vested in one plaintiff to the exclusion of others and in the other in that plaintiff jointly with those others. We think the causes of action here are different and that Section 43 of the Code of 1882 is not a bar to the suit.

2. We allow the appeal and remand the suit for disposal according to law.

3. The costs will abide the event including the costs of commission which form the subject of the memo, of objections.


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