Suresh S/O Ganpatrao Lade And Anr. vs Sudhakar S/O Tukaram Balpande And ...
2004 Latest Caselaw 422 Bom

JUDGMENT

S.T. Kharche, J.

1. By invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, the original plaintiffs have filed this second appeal being aggrieved by the Judgment did. 11th October, 1988 passed by the learned Additional Sessions Judge in Regular Civil Appeal ` 23/83 whereby the appeal came to be dismissed and the judgment and decree passed by the trial Court on 27th December, 1982, dismissing the suit of the plaintiffs seeking partition and separate possession of his share is confirmed on the ground that the second suit for the same cause of action has been barred by the provisions of Order II, Rule 2 of the Code of Civil procedure.

2. Brief facts are required to be stated as under :

The agricultural land bearing survey No. 146/2, admeasuring 11 acres 21 gunthas is situated at village Sherala and the said land was purchased by the plaintiff and their deceased brother Ramesh jointly along with Punjabai who was their grand mother who was shown to be the guardian of the plaintiffs and their brother Ramesh, as they were minor at the time of sale deed dtd. 29-3-1961. Out of the said land, 5 acres 0 guntha land was purchased by defendant No. 4, who is the father of the plaintiffs, by virtue of same sale deed and remaining 6 of acres was purchased by plaintiffs and their brother deceased Ramesh. Subsequently, on 23-3-1967 defendant No. 4 sold out 21/2 acres on Northern side out of Survey No. 146/2 to defendant No. 1(a) and defendant No. 2(b) and similarly on the same day defendant No. 4 and Ramesh sold out 21/2 acres land to defendant No. 2(a) and 2(b). Subsequently, defendant No. 4 and deceased Ramesh sold out 5 acres 1 guntha of land out of survey No. 146/2 to defendant No. 3 Omsombai for consideration of Rs. 5,000/- on 25-4-1968. The plaintiffs were not parties to the aforesaid three sale deeds. It was contended that defendant No. 4 Ganpatrao had no right, title or interest to sell out the land. The plaintiffs filed Regular Civil Suit No. 378/1971 earlier for possession of 4 acres land from defendant No. 3 Omsombai which was decreed by the trial Court, but the appellate Court dismissed the suit on the ground that the suit for possession was misconceived and no partition was claimed. The cause of action for the present suit arose on 27-2-1976 when the Regular Civil Appeal filed against the decision of R.C.S. No. 147/71 was dismissed. Plaintiff contended that they are the owners of the agricultural land to the extent of 4 acres and their father had no right to sell the same and therefore they have instituted the suit for partition and separate possession of 4 acres land together with mesne profits.

3. The defendant combated the claim of the plaintiff and contended that the partition was effected of the agricultural land survey No. 146/2 amongst the plaintiffs, their father and deceased Ramesh and accordingly both the plaintiffs and Ramesh were allotted 2 acres of land each while their father Ganpatrao, was allotted 5 acres 28 gunthas share in the said land. It is contended that after the said partition, the defendant No. 1 (a) and defendant No. 2(a)(b) purchased the land from defendant No. 4 and deceased Ramesh and the present suit is result of collusion between plaintiff and defendant No. 4. The suit filed for partition and separate possession is not tenable especially when the earlier suit was dismissed by the appellate Court on the ground of mala fides on the part of the plaintiffs. It is contended that the defendant No. 3 purchased 4 acres land from defendant No. 4 and deceased Ramesh by virtue of the sale deed dtd. 25-4-1968 though the said land was purchased by them in the name of the plaintiffs and Ramesh as Benamidar. However, the defendant No. 4 Ganpatrao did not contest the suit and admitted the claim putforth by the plaintiff.

4. On the aforesaid pleadings the learned trial judge framed several issues and thereafter the parties had adduced their evidence in support of their contentions. The trial Court, on considering the evidence, recorded findings that the defendant No. 1(a) and 1(b) had purchased 21/2 land from defendant No. 4 on 23-3-1967 from defendant No. 4 who was the owner of the said land, and that the defendant No. 3 was a bona fide purchaser of the 4 acres land from defendant No. 4 and Ramesh on 25-4-1968 for value without notice. The trial Court also recorded the findings that the defendant No. 3 had validly purchased the agricultural land out of survey No. 146/2 for consideration from defendant No. 4 and negatived the contentions of the defendant No. 4 that the sale deed executed in favour of defendant No. 3 on 25-4-1968 was in the nature of security for the loan borrowed by him and also negatived the contentions of the defendant No. 3 that the plaintiffs were the benamidars of defendant No. 4 at the time when 6 acres of land bearing survey No. 146/2 was purchased. He negatived the contention of defendant No. 3 that the plaintiffs had consented to the sale of the property purchased by her and that the suit has been filed by the plaintiffs in collusion with defendant No. 4 for partition and separate possession. The trial Court also recorded the findings that the present suit was barred in view of the provisions of Order 2, Rule 2 of the Code of Civil Procedure and consistent with these findings dismissed the suit. Being aggrieved by the judgment, the plaintiffs carried appeal to the District Court. The learned Additional District Judge by the order dtd. 11th October, 1988 dismissed the appeal mainly on the ground that the second suit instigated by the plaintiff has been barred by virtue of the Order II, Rule 2 of the Code of Civil Procedure. This Judgment is under challenge in this appeal.

5. Mr. J. N. Chandurkar, the learned counsel for the plaintiffs, contended that the earlier suit bearing Reg. Civil Suit No. 378/71 was filed by the plaintiffs for possession on a cause of action which was entirely different from the cause of action as mentioned in the present suit. In the earlier suit it was contended by the plaintiffs that they were entitled to claim possession of 4 acres of land from defendant No. 3 Omsombai and the appellate Court recorded the findings that in the absence of any partition of the agricultural land between coparceners, the only remedy available to the plaintiffs was to file suit for partition and separate possession of their share, and therefore, the plaintiff have filed the present suit seeking the relief of partition and separate possession of their shares which is limited to the extent of 4 acres of land. He contended that both the Courts below have committed an error of law in reaching to the conclusion that the present suit is barred by the provisions of Order 2, Rule 2 of the Code of Civil Procedure, and since the cause of action for both the suits is entirely different, the present suit was perfectly maintainable and therefore the concurrent findings recorded by both the Courts below cannot be sustained in Law. In support of these submissions he relied on decision of Karnataka High Court in Narshali Kempanna and Ors. v. Narasappa and Ors. and also on the decision of Supreme Court in the case of Deva Ram and Anr. v. Ishwar Chand and Anr. .

6. Mr. Kaptan, the learned counsel for the defendants, contended that the earlier partition was effected between the coparceners i.e. Plaintiffs, their brother Ramesh and their father, defendant No. 4, and the land from Southern portion of survey No. 146/2 was allotted to the plaintiffs and deceased Ramesh and Northern portion of the land came to be allotted in the share of defendant No. 4. He contended that the defendant No. 3 purchased 4 acres of land from defendant No. 4 and Ramesh by virtue of sale deed dtd. 25-4-1968 and she is a bona fide purchaser for value without notice. He contended that the plaintiffs filed the suit bearing Reg. Civil Suit No. 378/71 seeking possession of 4 acres of land from defendant No. 3 which was initially decreed by the trial Court but subsequently when the appeal was carried to the District Court, the appeal was allowed with the observations that the only remedy available to the plaintiffs was to file a suit for partition and separate possession. He contended that the cause of action for the earlier suit and the present suit is not different and the subject matter of the suit i.e. Agricultural land bearing survey No. 146/2 is also the same. Therefore, according to Mr. Kaptan, both the Courts below rightly recorded the findings that the president suit is barred by virtue of the provisions of Order 2, Rule 2 of the Code of Civil Procedure, especially when the relief which has been claimed by the plaintiffs in the present suit could have been claimed in the earlier suit and no interference into the concurrent findings recorded by both Courts below is warranted. In support of these submissions, he relied on the decision of the Supreme Court in Bhagwan Dass and Anr. v. Rajdev Singh and Anr. and also on the decision of Andhra Pradesh High Court in the case of M. Thimma Raju and Anr. v. Dronamraju Venkatakrishna Rao and Anr. AIR 1998 A. P. 385.

7. This Court has given thoughtful consideration to the contention canvassed by the learned counsel for the parties. It would be necessary to reproduce Order II, Rule 2 of the Code of Civil Procedure which reads thus "Relinquishment of part of claim.- 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."

8. In Deva Ram and Anr. v. Ishwar Chand and Anr. cited supra, it has been observed that --

"12. A bare perusal of the above provisions would indicate that if a plaintiff is entitled to several reliefs against the defendant in respect of the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same the Plaintiff has to place all his claims before the Court in one suit as Order 2, Rule 2 is based on the cardinal principle that the defendant should not be vexed twice for the same cause.

(13). In Palaniappa Chettiar v. Alagan Chettiar, AIR. 1922 PC 228, it was laid down that the plaintiff cannot be permitted to draw the defendant to Court twice for the same cause by splitting up the claim and suing in the first instance, in respect of a part of claim only.

(14). What the rule, therefore, requires is the unity of all claims based on the same cause of action, in one suit. It does not contemplate unity of distinct and separate cause of action. If, therefore, the subsequent suit is based on a different cause of action, the rule will not operate as a bar. (Arjun Lal Gupta v. Mariganka Mohan Sur, ; State of Madhya Pradesh v. State of Maharashtra, ; Kewal Singh v. Mt. Lajwanti, )."

9. In Vallabh Das v. Dr. Madanlal and Ors. , it was laid down that- "Subject-matter in Order 23, Rule 1, Code of Civil Procedure means the series of acts or transactions alleged to exist giving rise to the relief claimed by him. Where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered have been brought in respect of the same subject matter as the first suit."

10. In Narshali Kempanna and Ors. v. Narasappa and Ors. cited supra it has been held in para 14 that - "It has also to be remembered that the plea of bar of suit based on Order 2, Rule 2 is a highly technical plea. It tends to defeat justice and deprive the party of his or her legitimate right. Therefore, care must be taken to see that complete identity of cause of action is established. If in case where the previous suit is dismissed on the ground that the proper remedy is to file a suit for partition and separate possession, the relief as to partition and possession of the suit properties must be held to have been kept open and leave of the Court for such relief must be held to have been granted as otherwise in such a case in the very suit itself a decree for partition and separate possession could be passed. Instead of that if the Court dismisses the suit stating that the relief has to be sought in a suit for partition, such a decree amounts to permitting the plaintiff to file a separate suit for partition and possession, In such a situation the bar contained in Order 2, Rule 2, Civil Procedure Code is not attracted because the dismissal of the suit on that ground not only gives rise to a fresh cause of action but also, as already pointed out, amounts to granting leave for filing another suit for such relief. That being so, the cause of action for both the suits cannot be held to be identical."

11. In M. Thimma Raju and Anr. v. Dronamraju Venkatakrishna Rao and Anr. it is held that - "Order 2, Rule 2, Civil Procedure Code, is based on the principle that the defendants should not be twice vexed for one and the same cause. The rule is directed against two evils, the splitting of claims and the splitting of remedies. It provides if a plaintiff omits any portion of the claim, which he is entitled to make or any of the remedies which he is entitled to claim in respect of the cause of action for his suit, he shall not thereafter sue for the portion claimed nor for the remedy so omitted. The rule preclude a second suit based on a distinct and separate cause of action. In order to invoke the rule, two conditions must be satisfied, first, that the previous suit and the present suit must arise out of the same cause of action and secondly they must be between the same parties."

12. On resume of the aforesaid authorities, the law position that emerges is that the plea that the suit is barred under Order 2, Rule 2 of the Code of Civil Procedure is highly technical plea and in order to attract the bar of other provisions, it is necessary that the cause of action for the subsequent suit is the same as was in the previous suit and that the suit was between same parties. It is settled law that if there is different causes of action for the suits instituted, the second suit would not be barred.

13. In the present case it is not disputed that the Regular Civil Suit No. 378/71 was instituted by the plaintiff against the defendant No. 3 Omsombai alone for possession of the 4 acres land out of survey No. 146/2. The cause of action for that suit was stated to have been arisen on 25-4-1968 when the defendant No. 3 obtained the sale deed of the plaintiffs' property of 4 acres from Ganpatrao and Ramesh and took illegal possession thereof and on 10-6-1971 when the defendant No. 3, after receipt of the plaintiffs' notice did not comply with the same. Whereas, in the present suit, the cause of action mentioned in para No. 7 of the plaint is that the cause of action for the suit for partition and separate possession arose on 7-2-1976 when the Court dismissed the plaintiffs' suit on preliminary ground as misconceived and hence defendant refused to partition the plaintiffs' share of 4 acres land and the claim arose at the end of each agricultural year 1974-75, 1975-76 and 1977-78 on 1-4-1975, 1-4-1976 and 1-4-1977.

14. It is not in dispute that the defendant No. 1 (a) and (b) purchased 2*/2 acres agricultural land which was sold by defendant No. 4 Ganpatrao 23-3-1967. It is also not in dispute that defendant No. 2 and 2(b) had purchased 21/2 acres agricultural land which sold to them by deceased Ramesh vide sale deed dtd.23-3-1967. It is also not disputed that the defendant No. 3 purchased 4 acres of land from defendant No. 4 and deceased Ramesh on 25-4-1968. The plaintiffs and deceased Ramesh are the sons of Ganpatrao and they had formed a joint Hindu family. The date of death of Ramesh is not known and perhaps he died unmarried. The perusal of the plaint in both the suits would reveal that the cause of action mentioned in (he plaint is different and that the parties are also different. The eariler suit bearing Regular Civil Suit No. 378/71 was filed by the plaintiffs for possession of 4 acres land against the defendant No. 3 Omsombai alone whereas the present suit has been filed against Ganpatrao as well as all the purchasers of the land. It is also equally significant to note that it is the contention of the defendants that Ganpatrao has sold out the property of the joint family, for the legal necessity.

15. It may be significant to note that the trial Court had decreed the earlier suit No. 378/71 against the defendant No. 3 and thereafter the latter had filed appeal before the District Court. The appellate Court while disposing of the appeal, observed that the appropriate remedy for the plaintiff was to file a suit for partition and separate possession and it is this order which has given rise to cause of action for filing the present suit. The appellate Court's order would amount to permitting the plaintiff to file a separate suit for partition and possession and in such a situation bar of Order 2, Rule 2 would not be attracted and hence the present suit is with the leave of the appellate Court would be maintainable. Therefore, it is apparent that the cause of action for both the suits is entirely different and both the suits are not also between the same parties. Some of the purchasers of the agricultural land and Ganpatrao was not the parties to the earlier suit and in such circumstances, this Court is of the considered opinion that both the Courts below have committed an error of law in coming to the conclusion that the present suit has been barred by virtue of the provisions of Order 2, Rule 2 of the Code of Civil Procedure and as such the impugned judgments cannot be sustained in law. The impugned judgments have resulted into miscarriage of justice and therefore are set aside. In that view of the matter the appeal is allowed and in the interest of justice the suit is remitted to the trial Court to decide the suit afresh on merits in accordance with Law expeditiously, preferably, within a period of six months. The record and proceedings be sent back immediately to the trial Court without any delay. The parties are directed to appear before the trial Court on 29-4-2004. Costs shall be cost in the cause.