1. The property in dispute in this appeal is eight bighas of land at Khardah. The plaintiff Durga Charan Chandra, sues for a declaration of his title to a 19/80 the share of the land and for partition of that share by metes and bounds. The Subordinate Judge has given him a decree, and the Khardah Company, Limited, the defendants, have appealed.
2. The facts of the ease which are not in dispute are as follows: The property originally belonged to one Asutosh Roy Chowdhuri, who left it by Will to his mother Sivakali absolutely, appointing her sole executrix. Sivakali obtained Probate of the Will in due course On 10th September 1906, Sivakali made a gift of 19/49ths of the property in equal moieties to Ram Chandra Banerjee and Khetra Mohan Banerjee. On 10th December 1907, Ram Chandra purported to sell his 19/80ths to one Bepin Behari Haldar for Rs. 1,000 (Exhibit 3). The plaintiffs case is that Bepin Behari Haldar was his benamidar and that this was really a sale to him. On 25th December 1907, Ram Chandra, who had been ill and bedridden for some months, died. On 13th Marsh 1908, Sivakali sold the 21/40ths remaining in her to the defendant company for Rs. 6,300. On 10th April 1908, Bepin Behari Haldar executed a release of the 19/80ths conveyed to him by Exhibit 3 in favour of the plaintiff. On 24th April 1908, Khetra Mohan Banerjee conveyed his 19/80ths to the defendant company for Rs. 3,000, On 22nd September 1908, the four sons of Ram Chandra Banerjee purported to sell to the defendant company for Rs. 2,000 the 19/80ths share which had belonged to their father, and which was the subject of the conveyance Exhibit 3. In October 1908, the defendant company, having entered into possession of the land, demolished the house standing thereon. On 4th November 1908, the plaintiff, Durga Charan Chandra, filed a suit (No. 1287 of 1908) in the 1st Court of the Munsif at Sealdah valuing the house at Rs. 8,000 and claiming Rs. 1,900 (i.e., 19/80ths of the value) from the defendant company as damages for demolition of the house and appropriation of the materials. On 21st November 1910, the Munsif gave the plaintiff a decree for Rs. 712-8-0 with proportionate costs. On appeal to the District Judge, (hat decision was reversed and the plaintiff's suit dismissed on the ground that the sale by Ram Chandra of the 19/80ths was a benami transaction without consideration, and that the plaintiff had, therefore, no interest in the property, A second appeal to this Court was heard by a single Judge (Coxe, J.), who upheld the decision of the lower Appellate Court. The plaintiff Bled an appeal under the Letters Patent, which was heard by Sir Lawrence Jenkins, C.J., and N.R. Chatterjea, J. They Bet aside the decree of Coxe, J., and sent back the appeal for re-hearing by the District Judge, The then District Judge after admitting some further evidence upheld the decision of the Munsif, and against that a Second appeal (No. 512 of 1916) has been filed, with which we will presently deal. The appeal was dismissed on the ground that it was concluded by findings of fact by the Appellate Court.--Ed. On 8th December 1914, while the Letters Patent appeal was pending, the present suit was filed. Two points arise for determination in this appeal: (i) whether the present suit is barred by the provisions of Order II, Rule 2 of the Civil Procedure Code, and (ii) whether the purchase of 10th December 1907 in the name of Bepin Behari Haldar was a bona fide transfer in favour of the plaintiff or a mere benami and sham transaction. On the point of law the question is whether the plaintiff has not split up his cause of action, and having omitted without the leave of the Court to sue in the first suit for one of his remedies, is not now debarred from doing so. The Suit for damages having been filed before 1st January 1909, the provisions of the Civil Procedure Code of 1882 apply. In Section 44 the words now to be found in Order II, Rule 4 (e), do not occur. But if the cause of Act ion is the same, this is of no importance: see Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran 10 M. 375 at p. 503 : 3 Ind. Dec. (N.S.) 1015 and Ganesh Dutt Thakoor v. Jewach Thakoorain 31 C. 262 : 31 I. A. 10 : 8 C.W.N. 146 : 14 M.L.J. 8 : 6 Bom. L.R. 1 (P.C.). The expression 'cause of action' has been defined by different Judges in slightly varying terms. In Jibunti Nath Khan v. Shib Nath Chuckerbutty 8 C. 819 at p. 822 : 10 C.L.R. 537 : 4 Ind. Dec. (N.s.) 529 White, J., said: 'In deciding the question whether this suit is barred by the former suit, we must see if the cause of Act ion is the same in both suits. A cause of Act ion 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.' Adopting this definition we have only to compare paragraphs 7, 9 and 11 of the present plaint with paragraphs 5, 6, S and 9 of the plaint in the former suit, to see that the cause of action in both suits is one and the same, and that it arose and was complete in October 1908. The present claim, therefore, could and ought to have been preferred along with the claim for damages in the former suit. The learned Subordinate Judge in deciding this issue has contented himself with saying that the cause of action in the two suits is not the same. He appears to have confused the cause of action with the relief claimed, an error against which Lord Watson nattered a warning in Chand Kour v. Partab Singh 16 C. 98 at p. 102 : 15 I.A 156 : 5 Sar. P.C.J. 243 : 12 Ind. Jur 331 : 8 Ind. Dec. (N.S.) 65. The cause of action the said) does not depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.' We hold that the cause of action in the present suit being the same as that in the firmer suit, plaintiff is by Order II, Rule 2, precluded from suing for the relief which he now claims.
3. In this view of the law, it is really unnecessary to go into the facts of the case, but as we are not prepared to agree with the learned Subordinate Judge in his view of the facts, it may be well to state shortly the reasons which have led us to this conclusion.
4. Their Lordships eventually held that the alleged sale to the plaintiff on the 10th December 1S07 was a sham transaction, and accordingly allowed the appeal and dismissed the suit with costs in both Courts--Ed.