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Sumeka Dasi Vs. Baikuntha Chandra Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal475,30Ind.Cas.607
AppellantSumeka Dasi
RespondentBaikuntha Chandra Das and ors.
Cases ReferredPittapur Raja v. Suriya Rau
Excerpt:
civil procedure code (act v of 1908), order ii, rule 2 clauses (1) and (2) - whole of claim to be included, by every suit, if barred. - .....the cause of action now alleged by the plaintiff is identical with what was the foundation of the previous suit. on behalf of the appellant, it has been contended that the causes of action are not identical. it has been pointed out that in the previous suit the plaintiff alleged that the properties then in dispute had been inherited by her from her husband, that while she was in possession thereof, she was dispossessed by some of the then defendants, who are relations of her husband, in magh 130v, and that thereafter from falgoon 1307, she had been kept out of possession by other defendants in collusion with the principal defendants. these other persons are not parties to the present suit, and it was not open to the plaintiff to join the present claim with the earlier one in the.....
Judgment:

1. This is an appeal by the plaintiff in a suit for declaration of title to immoveable property and for recovery of possession thereof, The case for the plaintiff is that the disputed properties belonged to her husband, and, after his death were held by her jointly with the defendants, who sire relations of her husband. She alleges that in Magh 1307 she was unlawfully dispossessed by the defendants and consequently seeks to recover possession. The Court of first instance held that her title was established and gave her a decree. Upon appeal, the District Judge has dismissed the suit on the ground that it is barred under Clauses (1) and (2) of Rule 2 of Order II of the Code of 1908. This objection has been sustained on the ground that in 1910 the plaintiff had sued these defendants and two other persons for joint possession of other lands, which she alleged had been inherited by her from her husband and from which she had been wrongfully evicted by the then defendants. In our opinion the view taken by the District Judge cannot be supported.

2. Clause (I) of Rule 2 of Order II provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Clause (2) lays down that where the plaintiff omits to sue in respect of any portion of the claim, he shall not afterwards sue in respect of the portion so omitted. We have, consequently, to determine whether the cause of action now alleged by the plaintiff is identical with what was the foundation of the previous suit. On behalf of the appellant, it has been contended that the causes of action are not identical. It has been pointed out that in the previous suit the plaintiff alleged that the properties then in dispute had been inherited by her from her husband, that while she was in possession thereof, she was dispossessed by some of the then defendants, who are relations of her husband, in Magh 130V, and that thereafter from Falgoon 1307, she had been kept out of possession by other defendants in collusion with the principal defendants. These other persons are not parties to the present suit, and it was not open to the plaintiff to join the present claim with the earlier one in the previous suit. If this claim had been included in the previous suit, objection might well have been taken on the ground of misjoinder of parties and causes of action. This is clear from the decision of this Court in the case of Ram Prosad v. Sachi Dasi 6 C.W.N. 585. Reliance has been placed on behalf of the respondents upon the decision of the majority of the Full Bench in the case of Murti v. Bhola Ram 16 A. 165 : A.W.N. (1894) 65. The facts of that case are clearly distinguishable from those which have given rise to this appeal; and we are inclined to follow the line of reasoning adopted in the judgment of the dissenting Judge rather than that accepted by the majority of the Full Bench. As was pointed out by the Judicial Committee in the case of Pittapur Raja v. Suriya Rau 12 I.A. 116 : 8 M. 520 : 9 Ind. Jur. 274 : 4 Sar. P.C.J. 638 the rule does not compel the plaintiff, who has several causes of action, to lump them together under the penalty of having the subsequent suit barred. The section does not say that every suit shall include every cause of action or every claim which the party has, but only that every suit shall include the whole of the claim arising out of the cause of action, meaning, the cause of action for; which the suit is brought. Here, the plaintiff has a cause of action against the relations of her husband. In the earlier litigation she had a cause of action in respect of properties not now in suit against persons who had derived title by purchase from the relations of her husband. In our opinion, the causes of action are distinct and the suit is not barred.

3. The result is that this appeal is allowed, the decree of the lower Appellate Court set aside and the case sent back to the lower Appellate Court for disposal on the merits. The appellant is entitled to his costs in this Court.


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