S. Mohan, J.
1. The first defendant is the appellant before me. The short facts relating to this Second Appeal are as follows:
2. The present suit O.S. No. 24 of 1961 was preferred before the Subordinate Judge's Court, Ootacamund, for a declaration of the plaintiff's title and also for recovery of possession 50 cents (northern half of Survey No. 22/2). The case of the plaintiff is that Lakshmi Ammal was the original owner and that the properties devolved on her granddaughter, Girjammal, as stridhana heir and from whom he purchased under Exhibit A-1 dated 29th November, 1957 and notwithstanding this valid purchase by this plaintiff, the first defendant has been in continuous wrongful possession of the property. Hence the suit.
3. In the defence of the first defendant, it was contended that Rangiah the husband of Lakshmi Ammal, was the real owner who sold under Exhibit B-6 the entire property of one acre covered by Survey No. 22/2 in favour of Kapini Gowder from whom the first defendant had come to purchase the property under Exhibit B-7 dated 9th April, 1956, and therefore, his title ought to prevail. It was further, contended in defence that in so far as there was a prior suit, O.S. No. 54/57, in which the plaintiff originally sought for recovery of possession basing on the title of purchase from Vasudevan, son of Lakshmi Ammal, dated 12th March, 1956 and later sought to amend that suit by preferring I.A. No. 610 of 1957 basing on Exhibit A-1 dated 29th November, 1957, the failure to include the present claim with reference to the northern half would be hit by Order 2, Rule 2 of Civil Procedure Code.
4. The learned Subordinate Judge who tried the suit came to the conclusion that the findings rendered in the prior suit viz., O.S. No. 54/57, would constitute res judicata. The present suit, according to him, was not barred by Order 2, Rule 2, Civil Procedure Code. These findings were affirmed by the learned District Judge, Coimbatore (West) in A.S. No. 111 of 1969. Hence the present Second Appeal.
5. The only question on which arguments have been addressed, somewhat strenuously, by Mr. T.R. Rajagopalan Learned Counsel for the appellant is that the present suit is clearly barred by Order 2, Rule 2, Civil Procedure Code, and the submission put shortly is that no doubt on the date on which O.S. No. 54/57 was filed, the plaintiff did not get title under Exhibit A-1 and the title was based upon the purchase from Vasudevan on 12th March, 1956. But, in so far as I.A. No. 610/57 was filed to strengthen the title of the plaintiff on the basis of Exhibit A-1, the claim relating to the northern half also ought have been included. The cause of action for both the suits being the same, the present suit is barred by Order 2, Rule 2, Civil Procedure Code. In support of this contention, the Learned Counsel relies on a number of authorities which I will consider one by one, below.
6. Mr. Parasurama Iyer, the Learned Counsel for the respondent, would submit that it was impossible for the plaintiff to include in O.S. No. 54 of 1957, which was a suit relating to the southern half, the present claim relating to the northern half because the cause of action for the prior suit was trespass of the first defendant made on 15th April, 1956. Therefore, according to him the causes of action are different though there may be a similarity with reference to the reliefs. When the title was disputed by the defendant in the prior suit which was only for recovery of possession Exhibit A-1 was buttressed to strengthen the title of the plaintiff whereas the present suit is for a declaration of title and for recovery of possession. But there is no allegation of trespass and it is the continuance of the first defendant in wrongful possession that has given rise to the present suit. Therefore, there is no bar under Order 2, Rule 2, Civil Procedure Code, and the cases cited by the Learned Counsel for the appellant are distinguishable. Before I delve into the merits of this case in particular, as to whether the causes of action are one and the same or different, let me refer to the various authorities cited by the Learned Counsel for the appellant.
7. Mohammad Khalil Khan v. Mahbub Ali Mian , is a case wherein the Judicial Committee summarised the test applicable to Order 2, Rule 2, Civil Procedure Code. '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.' In that case it was held that 'on the date when the original suit was filed it was possible for the appellant to sue and yet he did not' and therefore, the principle laid down under Order 2 was held applicable. But that is not the position here.
8. In Suraj Rattan Thirani v. Azamabad Tea Co. Ltd. : 6SCR192 , the meaning of cause of action came to be laid down as follows. That was a case with reference to Order 9, Rule 9, Civil Procedure Code. It may be of interest to note that the ruling of the Privy Council cited earlier was quoted with approval in this case. But this decision is not in any way, helpful to the appellant:
To quote their Lordships:
In considering whether the cause of action in the subsequent suit is the same or not as the cause of action in the previous suit, the test to be applied is are the causes of action in the two suits in substance--(not technically identical?
(31) The learned Judge thereafter referred to an earlier decision of the Privy Council in Soorjomonee Dasee v. Suddanund (1874) 12 Beng. L.R. 304 : 20 W.R. 377, and extracted the following passage as laying down the approach to the questions 'Their Lordships are of opinion that the term 'cause of action' is to be construed with reference rather to the substance than to the form of action....
Applying this test we consider that the essential bundle of facts on which the plaintiffs based their title and their right to relief were identical in the two suits. The property sought to be recovered in the two suits was the same.
9. R. Venkatanarasimhan v. K. Subba Reddy : AIR1944Mad435 , was a case in which the first suit was based on a contract with the father-in-law of the plaintiff. In defence a will was set up but that will was found to be not valid and hence the suit was decreed. Therefore, the second suit with reference to one of the items not included in the will or in the earlier suit was held to be barred under Order 2, Civil Procedure Code. But, in the instant case, the position in very different. The right to sue with reference to the northern half was not available on the date when O.S. No. 54 of 1957 was filed and therefore, this decision, also will have no application.
9. An illuminating passage occurs as to how the cause of action should be construed in Ma Pwa Shin v. U. Fo Sin and Anr. A.I.R. 1937 Rang. 324, the learned Judge, Braund, J., held on a difference of opinion between Leach and Spargo, JJ.)
As I read the rule, there are three things: first, the 'cause of action'; secondly, the 'claim which the plaintiff is entitled to make in respect of the cause of action.' and thirdly the 'relief in respect of the cause of action'. It seems to me that the Rule read as a whole, distinguishes between these three things. It does not say that the plaintiff shall 'include the whole cause of action' in the suit., but that he shall include 'the whole of the claim' he is entitled to make 'in respect of the cause of action'. The 'cause of action' and the 'claim' on it are treated by Sub-section (1) as different things, the claim being 'in respect of, the cause of action'. That seems to me to be important to be borne in mind in dealing with this case. When we come to Sub-section (2) which is the material one here, we find that, if he omits to sue 'in respect of any portion' of 'his claim ' (which means, I think) the claim which ('he is entitled to make in respect of the cause of action') he is precluded from suing in a second suit in respect of that portion. That must I think refer to the portion of the claim, not to the portion of the cause of action and still less to any portion of the physical property which may be the subject-matter of the suit. The result, therefore, of an analysis of the rule is, I think, that one has to ask one self three exact questions; First, what was the 'cause of action' in the first suit? Secondly, did the appellant 'omit to sue in the first suit in respect of any, and if so what portion of the claim which she was entitled to make in respect of that 'cause of action'? and thirdly, does the plaintiff in her second suit 'sue in respect of the portion so omitted?' First, then, what was the 'cause of action' in the first suit? The classic definition of a 'cause of action' is the definition of it by Brett, J. in Gooke v. Gill L.R. 8 C.P. 107 also per Lord Esher in Read v. Brown (1889) 22 Q.B.D. 128, as:
every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment the Court.
As I understand that, it means that the 'cause of action' consists of the facts upon which (to revert to the words of Order 2, Rule 2) the plaintiff is entitled to base a 'claim' in a suit with reference to the subject-matter of the dispute. The claim he actually does make cannot, in my view, be material because what the rule makes the deciding factor is the claim which he is 'entitled' to make. It is, I think most important to appreciate that it is the claim which 'he is entitled to make' and not the claim he makes that is made the criterion under the rule.
But this, case again, is clearly distinguishable having regard to the facts of that particular case.
10. Ram Prasad Singh v. Radha Panday : AIR1941Pat37 , was a case in which an auction-purchaser omitted to sue for recovery of possession with reference to a few of the items for which he had title and therefore, it was held that the suit was barred under Order 2, Civil Procedure Code. This decision, also does not support the appellant.
11. In my view, there is a good deal of confusion in the arguments of the appellant in that he seeks to attribute the same meaning to cause of action and relief.
Applying the very test formulated by Braund, J., extracted above, it can be clearly seen that the cause of action and the claim on it are treated by Sub-section (1) of Order 2, Civil Procedure Code as different things, the claim being in respect of the cause of action and that is the reason which prompted Braund, J. to say:
When we come to Sub-section (2), which is the material one here, we find that, if he omits to sue in respect of any portion of 'his claim' which means, I think, the claim which 'he is entitled' to make in respect of the 'cause of action' he is precluded from suing in a second suit in respect of that portion.
In the instant case, as seen above the cause of action O.S. No. 54 of 1957 was trespass on 15th April, 1956 on which date, undoubtedly, the plaintiff did not have title with reference to the northern portion. But according to the Learned Counsel for the appellant, all the damage was done by preferring I.A. No. 610 of 1957 to strengthen the title by virtue of purchase under Exhibit A-1 dated 29th November, 1957 since, by then, the title; relating to the northern half had also come to be acquired and that alone is the cause of action for the amendment claimed relating to the northern portion which also ought to have been in included. I am afraid that this argument overlooks that even by the amendment the title acquired in 1957, cannot be introduced in a suit filed earlier to the acquisition of this title. In other words, notwithstanding the amendment, still, the cause of action for the suit was only trespass on 15th April, 1956 and that cannot be altered by the amendment and therefore, the limited purpose of the amendment was as rightly held by the Courts below to strengthen the title of the appellant. In the present suit the cause of action is very different. Nowhere is there any allegation relating to trespass and it is the continued wrongful possession of the first defendant which forms the cause of action for the present suit. It cannot be gainsaid that the title is one and the same, in both the suits. But that is very different from cause of action.
12. Unfortunately, the Courts below have held that the findings in the prior suit would operate as res judicata. If really the causes of action are different, as has been held above, then, it is but necessary to have an independent consideration as to whether the title of the plaintiff under Exhibit A-1 could be upheld or that of the first defendant under Exhibit B-7 ought to prevail. This cannot be summarily disposed of on the principle of res judicata. Therefore, I have no other option but to remand the matter to the learned Subordinate Judge, Nilgiris at Ootacamund, for a fresh consideration on this limited question relating to the title. The parties will be at liberty to adduce such oral and documentary evidence as they feel like. Having regard to the fact that the suit is of the year 1961, the learned Subordinate Judge will dispose of the matter within 2 months from the receipt of this judgment. The records will be despatched immediately Hence the second appeal will stand allowed. Costs will abide the result of the suit. There will be a refund of the Court-fee paid on the merrorandum of second appeal and also in the lower appellate Court.