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Shib Nath Chuckerbutty Vs. Jibunti Nath Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal820
AppellantShib Nath Chuckerbutty
RespondentJibunti Nath Khan and ors.
Cases ReferredMoonshee Buzloor Ruheem v. Shumsoonnissa Begum
Excerpt:
code of civil procedure (act x of 1877), section 43 - splitting remedies--suit for declaration of title and for possession--subsequent suit for possession. - .....under which it is sought to raise this defence are these: on the 25th january 1879, the present plaintiff, through his mother, brought against the present defendants a suit, in which, claiming under the same title to succeed to promotho nath's property, he prayed only for a declaration that he was the heir to that property. the plaint alleged that the property was then in the possession of the plaintiff. the subordinate judge took no evidence on the question of possession, but in consequence of certain proceedings that had been previously had between the parties under section 530 of the criminal procedure code, and under the land registration act (beng. act vii of 1876), which he held to be conclusive as to the fact of possession, the subordinate judge decided that the.....
Judgment:

White, J.

1. (Who, having stated the facts and reviewed the evidence, came to the conclusion that the plaintiff's case on the merits had been clearly proved. His Lordship then continued): But it has been argued for the defendants that the suit is barred by the third Clause of Section 43 of the Civil Procedure Code, which prohibits the splitting of remedies. This clause apparently introduces a new provision into the Code. It is not to be found in the Original Procedure Code of 1859, the 7th Section of which prohibited the splitting of claims, but contains no provision, or at any rate no express provision, against the splitting of remedies. The circumstances under which it is sought to raise this defence are these: On the 25th January 1879, the present plaintiff, through his mother, brought against the present defendants a suit, in which, claiming under the same title to succeed to Promotho Nath's property, he prayed only for a declaration that he was the heir to that property. The plaint alleged that the property was then in the possession of the plaintiff. The Subordinate Judge took no evidence on the question of possession, but in consequence of certain proceedings that had been previously had between the parties under Section 530 of the Criminal Procedure Code, and under the Land Registration Act (Beng. Act VII of 1876), which he held to be conclusive as to the fact of possession, the Subordinate Judge decided that the plaintiff was not in possession, and that the possession was in certain parties under whom the defendants claimed. Accordingly, under Section 42 of the Specific Relief Act, which provides that no Court shall make a declaratory decree 'where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so,' the Subordinate Judge held, that he had no jurisdiction, or at all events no discretion, to grant the declaratory decree demanded, and dismissed the plaintiff's suit. The present suit is to recover the possession of the same lands as are mentioned in the former suit. In deciding the question whether this suit is barred by the former suit, we must see if the cause of action is the same in both suits. A cause of action consists of the circumstances and facts, which are alleged by the plaintiff to exist and which, if proved, will entitle him to the relief, or to some part of the relief, prayed for, and is to be sought for within the four corners of the plaint. The allegations in the plaint in the former suit were the death of Promotho Nath, the alleged heirship of the plaintiff to his estate, the possession by the plaintiff of that estate, and the proceedings under the Criminal Code had in the Registration Court which threatened to result in a disturbance by the defendants of the rights enjoyed by the plaintiff. These constituted the cause of action in that suit, and the relief asked for was a decree declaring the plaintiff's title as heir, the effect of which would have been to quiet him in the possession of his estate. Upon such a cause of action a declaratory decree was the only remedy he could sue for. How then can it be said that he omitted to sue for any remedy in respect of that cause of action when he was entitled to no other

2. In the present suit, although the plaintiff sets forth the same title, he complains that the defendants, and those through whom they claim, have, on the strength of the proceedings under the Criminal Procedure Code and the Registration Act, sued and obtained decrees against some of the tenants of the estate, and that there has consequently been an active disturbance of his possession, which entitles him to pray for a decree which shall not only declare his title but also award him possession. The cause of action in the present suit is, in our opinion, distinct from that in the first suit. We have been referred by the defendants' counsel to the case of Moonshee Buzloor Ruheem v. Shumsoonnissa Begum 11 Moore's I.A. 551; but we think that case supports our view as to what is and what is not the same cause of action. The Privy Council were there dealing with Section 7 of the Code of 1859, which prohibited the splitting of claims. Their Lordships say, 'the correct test in all cases of this kind is, whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation of the former suit, and they have accordingly considered whether the present suit can be maintained on that ground. But the cause of action in the former suit of the respondent seems to them to be the refusal by the husband to restore, or his misappropriation of, the wife's property, which she says he entrusted to him. There is nothing to distinguish the deposit of this particular Company's paper from the deposit of those which she deposited with it, and has recovered in the former suit. It was a mere item of her demand, and is admitted on the face of her present plaint to have been omitted from it for no other reason than the very insufficient one before mentioned. If she was justified in instituting a separate subsequent suit for this particular Company's paper for Rs. 10,000, she would have been equally justified in making each one of the Company's papers, which are comprised in the 'property suit,' successively the subject of an independent suit.'

3. But Mr. Evans contends that the Court must not confine itself to the claim made in the two suits in judging whether the 43rd Section of the Code has been infringed, but ought to travel outside the statements contained in the plaint and see how the facts stood upon the finding of the Court in the first suit. The argument is this, that, inasmuch as the cardinal allegation was disproved upon which was grounded the plaintiff's title to the limited relief prayed in his first suit, and inasmuch as the Subordinate Judge held the plaintiff not to be in possession at that date, it follows that the plaintiff ought, in his first suit, to have brought a suit praying not only for a declaration of title but also for an award of possession, and that not having done so he has split his remedies. I cannot agree that this is the correct test. The question to be determined turns not upon what was the proper suit for the plaintiff to have brought, or the proper remedies for him to have applied upon having regard to the facts as found upon the trial of the first suit, but upon whether the causes of action in the two suits are one and the same, or are distinct.

4. It is contended that, in the case of Moonshee Buzloor Ruheem v. Shumsoonnissa Begum 11 Moore's I.A. 551 their Lordships, in deciding that the plaintiff had omitted in her first suit a portion of his claim, founded their judgment upon the evidence in the suits and not upon the facts alleged in the pleadings. But this does not appear to be so. The omission of a portion of the claim from the first suit became apparent from comparing together the plaints in the two suits. It was then perceived that the causes of action in the two suits were the same, and that the Government paper sought to be recovered in the second suit was merely an item omitted from the plaintiff's demand in the first suit. Furthermore, the fact of the omission was expressly stated in the body of the second plaint, but sought to be excused on a ground which was held to be untenable.

5. On the whole, we are of opinion that there has been no splitting of remedies in this case within the meaning of Section 43 of the new Code of Procedure, and that this suit is not barred in consequence.

6. I must say for myself that I am exceedingly glad that we are able to come to this conclusion. Possession is a question which from its nature would seem to be very easily determinable; but in practice it is found to be one of the most difficult issues to decide in this country where great facilities are afforded to litigants of procuring perjured testimony, and where, in the case of lands under lease or in the occupation of ryots, it is a common occurrence for the lessees or ryots to become the partisans of one or other of the rival claimants, and sometimes to avail themselves of the dispute to combine and withhold their rents. In the case before us, if we had felt ourselves obliged to yield to the objection that this suit was barred, the infant plaintiff, whom upon the merits we find to be the heir and entitled to succeed to Promotho Nath Sannyal's property, would have been positively excluded from his inheritance without any judicial enquiry as to his title having been held; and I may also add, without any proper enquiry having been made in the first suit as to which of the rival claimants was at its date in possession of the estate. We affirm the decree of the lower Court and dismiss this appeal with costs.


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