Skip to content


Gnanaprakasam and ors. Vs. Sabasthi Ammal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1980)1MLJ182
AppellantGnanaprakasam and ors.
RespondentSabasthi Ammal
Cases ReferredGaing and Anr. v. Ma
Excerpt:
- .....based upon the same cause of action as in the former suit. the plea of bar of suit under order 2, rule 2 civil procedure code, is thus established in the instant case.8. the learned counsel for the appellants' however, relies upon the judgment of a division bench of the bombay high court in keshavlal sakhidas v. amarchand somchand a.i.r. 1933 bom. 399, and contends that the present suit was not barred as the plaintiffs could not have asked for possession until the sale was set aside. in that case the previous suit was brought on the original side of the high court for rescission of the agreement of sale and mesne profits. the later suit, out of which the matter arose before the bench, was brought before the first class subordinate judge's court at thana for recovery of possession of the.....
Judgment:

V. Ratnam, J.

1. The plaintiffs, whose suit for the recovery of possession and for past and future mense profits was dismissed by the Courts below, arc the appellants in this second appeal. According co the case of the appellants, the suit property originally belonged to one Arulayee Ammal who executed a deed on 18th June, 1956 in favour of the respondent herein. Later a suit in O.S. No. 670 of 1963 on the file of the District Munsif's Court, Tiruchirapalli, was filed by her against the present respondent for the cancellation of the said deed on the ground that the said deed was vitiated by fraud and misrepresentation. On 31st October, 1963, that suit was decreed and the appeal filed there from in A.S. No. 197 of 1965, Sub-Court, Tiruchirapalli, was also dismissed. Against that, the matter was carried in second appeal in S. A, No, 350 of 1966 and during the pendency of the second appeal, Arulayee Animal died and the present appellants were impleaded as her heirs and legal representatives. Ultimately, the second appeal was also dismissed on 20th October, 1970. Claiming that the appellants are entitled to all the assets of Arulayee Animal as her legal representatives and therefore entitled to the suit property also, they sought to recover possession of the suit property from the respondent who, according to them must be considered only as trespasser in possession of the property and therefore accountable in respect of the profits and income obtained by her between 1956 and the date of the institution of the suit. It was the case of the appellants that Arulayee was understood to have been advised that she must have the sale deed set aside before recovery of possession of the property could be sought for and therefore, they are entitled to claim exemption under Section 14 of the Limitation Act inasmuch as Arulayee had been prosecuting with due diligence the other civil proceedings in several Courts. The respondent, according to the appellants was therefore bound to deliver possession and on her evading to do so in spite of demands, the suit was instituted by the appellants.

2. The respondent herein resisted the suit on the ground that the right of the appellants, if any, is barred under the provisions of Order 2, Rule 2 of the Code of Civil Procedure. According to her, even in O.S. No. 670 of 1963 when Arulayee instituted a suit for cancellation of the deed, dated 18th June, 1956, she ought to have prayed for the relief of recovery of possession and owing to her failure to ask the relief of possession which had arisen on the same cause of action, the suit was barred. It was also further claimed by the respondent that she had been in possession of the property in her own right from 18th June, 1956 onwards since the inception, and such possession was adverse and therefore, even on this ground, the suit was liable to be dismissed. The claim of the appellants to the benefits of Section 14 of the Limitation Act was also refuted by the respondent in addition to the claim for mesne profits. On these grounds, the respondent prayed for the dismissal of the suit.

3. The learned District Munsif, Tiruchirapalli, who tried the suit held that the suit is barred by the provisions of Order 2, Rule 2 of the Code of Civil Procedure. In addition, the respondent was held to have prescribed title to the suit property by adverse possession and therefore, the suit was barred by time. On these findings, the suit was dismissed. Aggrieved by this, the appellants herein preferred an appeal in A.S. No. 617 of 1973, Sub-Court, Tiruchirapalli. The learned Subordinate Judge concurred with the conclusions of the learned District Munsif and held that the suit is barred by the provisions of Order 2, Rule 2 of the Code of Civil Procedure and it is also barred by limitation. The appeal was therefore dismissed confirming the findings of the trial Court.

4. In this second appeal, the learned Counsel for the appellants raised two contentions, the first of which was that the cause of action for the institution of O.S. No. 670 of 1963, District Munsif's Court, Tiruchirapalli and for the present suit viz., O.S. No. 132 of 1971 are different and therefore, the principles of Order 2, Rule 2, Civil Procedure Code, will not apply. The second contention of the learned Counsel for the appellants is that the suit is not barred by limitation inasmuch as the possession between 18th June, 1956 and the date of obtaining of the decree in O.S. No. 670 of 1963, i.e., 31st October, 1964 was only lawful and if at all, the adverse possession would begin only from 31st October, 1964 and the suit having been instituted within 12 years from the date, viz., on 21st December, 1970, the suit would be in time. The learned Counsel for the respondent, on the other hand, contended that the cause of action for the institution of O.S. No. 670 of 1963 was the execution of the document on 18th June, 1956 and the relief of possession asked for in the present suit should also have been asked for, if at all, in the prior suit O.S. No. 670 of 1963 and having omitted to do so without the leave of Court, it is no longer open to the appellants to claim the relief of possession in the present suit. It was also the further contention of the learned Counsel for the respondent that the decree in O.S. No. 670 of 1963 might operate as a declaratory decree and therefore, that may not have the effect of arresting the running of adverse possession and therefore, the present suit instituted on 21st December, 1970 long after 12 years from 18th June, 1956 would be barred by time.

5. The first question which, therefore, falls for consideration is whether the suit is barred by the provisions of Order 2, Rule 2 of the Code of Civil Procedure.

6. Order 2, Rule 2 of the Code of Civil Procedure runs thus:

(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 he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation : For the purpose 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. In Gurbux Singh v. Bhooralal : [1964]7SCR831 , the Supreme Court had laid down that the following conditions must be satisfied in order to raise successfully a plea of bar of suit under Order 2, Rule 2(3-A) of the Code of Civil Procedure:

(1) that the second suit was in respect of the same cause of action as that on which the previous suit was based ; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.

Again in Sidramappa v. Rajashetty : [1970]3SCR319 . the Supreme Court pointed out thus:

The requirement of Order 2, Rule 2 is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. 'Cause of action' means the 'cause of action for which the suit was brought'. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seeks to recover the balance by independent proceedings. Mohd. Hafiz v. Mohd. Zakaria (1992) 42 M.L.J 248 : (1992) 49 I.A. 9 : 15 L.W. 377 : A.I.R. 1922 P.C. 23.

In the light of the above principles the plea of Order 2, Rule 2 of the Code of Civil Procedure raised by the respondent has to be examined. The cause of action for the institution of O.S. No. 670 of 1963 and the foundation of that suit was the execution of the document by Arulayee Animal on 18th June, 1956 in favour of the respondent. When Arulayee Ammal instituted that suit viz., O.S. No. 670 of 1963, she was entitled to several reliefs which could have been prayed for in the suit viz., cancellation of the document executed by her on 18th June, 1956, recovery of possession of the property, recovery of mense profits both past and future and other incidental reliefs as well. In Exhibit B-l which is a copy of the plaint in O.S. No. 670 of 1963, District Munsif's Court, Tiruchirapalli, in paragraph 11, the cause of action is stated to have arisen on 18th June, 1956 viz., the date of execution of the document. In the present plaint in paragraph 9, no doubt it is stated that the cause of action for the suit arose on 31st October, 1964 viz., the date of the judgment in O.S. No. 670 of 1963, on 18th August, 1965 the date of judgment in A.S.No. 197 of 1965 and on 20th October, 1970, the date of disposal of the second appeal by the High Court. But, it is also significant that the date of the execution of the deed viz., 18th June, 1956 is also mentioned as part of the cause of action in the same paragraph. In addition, in paragraph 7 of the plaint, it is stated that Arulayee is stated to have been advised that she must have the obstacle of the sale deed removed before she could claim the right of possession with mesne profits. It is obvious that this allegation has been made only with a view to cover up the omission of Arulayee in not having sought the relief of possession even in O.S. No. 670 of 1963. The learned Counsel for the appellants strenuously contends that the obtaining of a decree to the effect that the document was vitiated by misrepresentation furnished the cause of action for recovery of possession. This contention cannot be accepted. The right to void the document executed on 18th June, 1956, on the ground that it was vitiated by mis-representation would give a right to Arulayee to seek recovery of possession of the property dealt with thereunder as it is only under the very same transaction that title as well as possession had passed in favour of the vendee. In addition, it is also significant that the appellants themselves have referred to the date of execution of the deed viz., 18th June, 1956, as part of the cause of action in paragraph 9 of the present plaint. It is therefore clear that the present suit was in respect of the same cause of action viz., the execution of the document on 18th June, 1956, as that on which the previous suit viz., O.S. No. 670 of 1963, District Munsif's Court, Tiruchirapalli, was based. In respect of that document, as stated already, Arulayee was entitled to more than one relief and that being thus entitled to more than one relief, she omitted to sue, without leave from Court, for the relief of possession, in respect of which the present suit had been filed. There is identity of causes of action both in respect of the previous suit as well as the later suit and the claim in the later suit is based upon the same cause of action as in the former suit. The plea of bar of suit under Order 2, Rule 2 Civil Procedure Code, is thus established in the instant case.

8. The learned Counsel for the appellants' however, relies upon the judgment of a Division Bench of the Bombay High Court in Keshavlal Sakhidas v. Amarchand Somchand A.I.R. 1933 Bom. 399, and contends that the present suit was not barred as the plaintiffs could not have asked for possession until the sale was set aside. In that case the previous suit was brought on the Original Side of the High Court for rescission of the agreement of sale and mesne profits. The later suit, out of which the matter arose before the Bench, was brought before the First Class Subordinate Judge's Court at Thana for recovery of possession of the property. It was in the course of that proceedings that the plea of Order 2, Rule 2, Civil Procedure Code was raised and in dealing with it, the Court held that since the possession was not asked for in the suit on the Original Side of the High Court, the suit for possession in the First Class Subordinate Judge's Court was not barred. In arriving at this conclusion, the Bombay High Court took notice of the circumstance that on the former occasion before the High Court, the plaintiff could not have asked for the relief of possession as the property was situated outside the jurisdiction of the Original Side of the High Court. It was under those circumstances that the Bombay High Court held that the cause of action in the previous suit was quite different from the cause of action from the present suit and that the plaintiff could not have asked for possession until the sale was set aside. In the instant case, as already stated there was nothing which prevented Arulayee from seeking all the reliefs with reference to the document which she sought to avoid by the institution of O.S, No. 670 of 1963. In this view, the reliance upon the decision of the Bombay High Court referred to above, is of no assistance whatever to the appellants.

9. The learned Counsel for the respondents draws my attention to a judgment reported in Maung on Gaing and Anr. v. Ma on Sin (1916) 33 I.C.135. The facts in that case are practically similar to the instant case. There, in a prior suit, the respondent sued the appellant for the cancellation of a deed of affecting the land alleging that her father had fraudulently sold the same to the appellant. A decree was passed ordering that the sale be cancelled. Later on the respondent filed another suit for possession and the appellant resisted it on the ground that it was barred by the provisions of Order 2, Rule 2(3), Civil Procedure Code. While dealing with that contention, the Court held:

The cause of action upon which that suit was based gave rise to two reliefs, namely, the cancellation of the deed and the recovery of possession of the property affected by the deed, as the property was in the possession of the appellant. The respondent omitted to sue for possession without asking for leave to sue for the relief afterwards... The respondent has omitted to sue for possession without the leave of the Township Court, so that, according to the plain wording of the provisions above quoted, the present suit for possession is barred.

On this view, the suit instituted by the respondent for possession was dismissed. This case, in my view, supports the contention of the learned Counsel for the respondent that the present suit is barred under the provisions of Order 2, Rule 2, Civil Procedure Code. As stated already, the omission of Arulayee without leave Court to sue for all the reliefs arising on the same cause of action viz., the execution of the deed on 18th June, 1956, cannot be got over either by statig that the cause of action for the later suit is different or that it arose only after the declaration that the deed should be set aside. The transaction is one and indivisible and when once such a transaction is set at naught, all things done thereunder must also be restored and Arulayee should therefore have sought the recovery of possession also even in the earlier suit. In this view, the conclusion is inescapable that the present suit is barred by the provisions of Order 2, Rule 2 of the Code of Civil Procedure.

10. Inasmuch as the suit is barred, as held above under Order 2, Rule 2, Civil Procedure Code, it is really unnecessary to consider the plea of limitation raised by the appellants. The lower Appellate Court was, therefore, quite right in the view it took and its judgment and decree are hereby confirmed and the second appeal is dismissed. Having regard to the circumstances of the case, each party is directed to bear his costs throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //