DOMINIC AMMAL Vs. MUTHUSWAMY

JUDGEMENT

(1.) Defendants 1 and 3 in O.S.No.81 of 1975 on the file of the District Munsif of Tiruppur are the appellants in this second appeal. The plaintiff laid the suit for declaration of title for recovery of possession of the middle and the southern portion of the suit property and for future mesne profits. Apart from other contentions, the suit was resisted by defendants 1 and 3 on the ground that it is barred by Or.2, Rule 2 of the Code of Civil Procedure Code, 1908 hereinafter referred to as the Code. This defence has got the basis on the following allegations. The plaintiff earlier laid a suit O.S.No.247 of 1971 on the file of the District Munsif of Tiruppur for declaration of title and for injunction. Defendants 1 and 2 in the present suit were parties in the earlier suit. There were other defendants in the earlier suit. The third defendant in the present suit was not a party to the earlier suit. The suit property consists of three portions, northern portion, middle portion and southern portion. In the earlier suit, the plaintiff succeeded in getting a declaration of title for the entirety of the suit property but got the relief of injunction only in respect of the nothern portion. The finding in the earlier suit was that the plaintiff is out of possession in respect of the middle and southern portions. Hence the relief of injunction was denied to the plaintiff in the earlier suit in respect of the middle and the southern portions. The plaintiff having failed to claim the relief of recovery of possession in respect of the middle and the southern portions in the earlier suit, the present suit for such a relief is barred under Or.2, R.2 of the Code. This plea of defendants 1 and 3 has not found acceptance at the hands of the two Courts below. In this second appeal directed against the judgment and decree of the lower appellate Court this Court thought fit to formulate the following substantial question of law at the time of its admission:

(2.) Mr.T.R. Rajagopalan, learned counsel appearing for defendants 1 and 3 appellants herein, expatiating the substantial question of law, would submit that the finding in the earlier suit is that the plaintiff was not in possession of the entire suit property but only the northern portion even at the time of the earlier suit and the plaintiff ought to have asked for the relief of recovery of possession even in respect of the middle and the southern portions in the earlier suit and having failed to do so, Or.2, R.2 of the Code will come in his way and the present suit has got to be discountenanced. Learned counsel places reliance on the pronouncement of Ratnam, J., in Gnanaprakasam v. Sabasthi Ammal, (1980)1 M.L.J. 182: 92 L.W. 672.

(3.) As against the above contention of the learned counsel for defendants 1 and 3, Mr.G.M.Nathan, learned counsel appearing for the plaintiff-the first respondent herein, would submit that the earlier suit was filed on the basis that the plaintiff was in possession and hence he could only ask for the relief of injunction and he could not ask for the relief for recovery of possession and the present suit for recovery of possession on the basis that the plaintiff is out of possession cannot come within the mischief of Or.2, R.2 of the Code.