PACHAIYAMMAL Vs. VELUSAMI KANDANTHAIYAR

JUDGEMENT

(1.) THE above second appeal has been filed by the defendants who are unsuccessful throughout before the courts below. THE respondents plaintiff filed O. S. No. 242 of 1978 on the file of the District Munsif Court, vridhachalam, for declaration of Plaintiff's title to the suit properties and possession of the same and for recovery of mesne profits from the date of plaint till delivery of possession. THE case of the plaintiff before the courts below was that the suit properties and some other properties originally belonged to one Kandaswamy Kandanthayar, who died intestate in the month of September, 1952 without leaving any issues, that after his death, the suit properties and other properties were enjoyed by his wives viz. , one Meenakshi and the 1st defendant herein as his legal heirs, and that the plaintiff is the son of abovesaid Kandasami Kandathaya r's junior maternal aunt and after the death of the said person, the first defendant and the above Meenakshi Ammal were maintained by the plaintiff and as a matter of fact, the plaintiff alone conducted the death ceremony of the abovesaid Kandasami Kandanthayar. THE further case of the plaintiff was that the first defendant and the above said meenakshi Ammal executed a settlement deed on 27. 10. 1952 in favour of the plaintiff in respect of the properties inherited through her husband and on the date of the settlement deed, the first defendant and Meenakshi Ammal put the plaintiff also in possession of the suit property and the plaintiff also accepted the same and has been enjoying the properties mentioned in the settlement deed by paying the kist, the other taxes etc. Subsequently, it is stated that two items of the properties mentioned in the settlement deed were sold to one pichamuthu Padayachi and the remaining properties were said to be in the enjoyment of the plaintiff openly, continuously and uninterruptedly. THE plaintiff thus claimed right and title to the properties by virtue of the said settlement deed and also by prescription. THE second defendant is said to be the sister's daughter of the 1st defendant and Meenakshi Ammal. Since the defendants started creating problems by manipulating as alloyed certain documents, the suit O. S. No. 279 of 1975 came to be filed on the file of the District Munsif, Court, Vridhachalam for declaration of plaintiff's title over the suit properties and two other items, and for permanent injunction. By a judgment and decree dated 9. 8. 1976, the learned trial Judge decreed the suit by declaring title in respect of all the five items of the property, but confining the relief of permanent injunction only to items 4 and 5 and rejected the claim for permanent injunction in respect of items 1 to 3 of the earlier suit schedule properties. THE defendants therein filed an appeal in A. S. No. 168 of 1976 on the file of the Sub Court, Chidambaram, and the learned first appellate Judge also dismissed the appeal by a judgment and decree dated 25. 2. 1978. But, since the plaintiff has been held to have title over the suit properties, alleging commission of trespass during the last days in the month of May 1975, the plaintiff has filed the present suit for the relief as noticed supra. It may be noticed at this stage that the properties which are the subject matter of the claim in the present suit are items 1 to 3 of the suit schedule property in the earlier suit in respect of which the relief of permanent injunction came to be rejected, though declaration of title has been granted.

(2.) THE defendants, in their written statement, contested the claim contending that having regard to the proceedings initiated earlier, the plaintiff cannot now ask for possession in respect of the suit properties. Reliance was placed by the defendants on 0. 2, Rule 2 of the Code of Civil procedure to contend that since the Plaintiff failed to include the whole of the claim to which he was entitled to make in respect of the suit properties even when he filed O. S. No. 279 of 1975 land has omitted to ask for the relief of possession, the plaintiff is now precluded from filing a second suit for the relief of possession. Objections were also raised on the tenability of the claim on merits.

(3.) THE only question that has been urged before me and which has been formulated at the time of admission of the appeal as the substantial question of bar arising in the appeal was as to whether the present suit was barred under O. 2, Rule 2 of the Code of Civil Procedure, Rule 2 of c. P. C. provides for more than one contingencies in order to prevent multiplicity of suits and ensure that a person shall not be vexed twice for one and the same cause by splitting up of claims and splitting up of remedies. THE prohibition contained in Sub-Rules (1) and (3) of Rule 2 of O. 2, Civil procedure Code would come into operation when the plaintiff, who is entitled to make a claim in respect of the cause of action is concerned omits to sue or relinquishes any portion of his claim in respect of one and the same cause of action. If the two suits deal with different causes of action, it is obvious that the prohibition in O. 2, Rule 2, Code of Civil Procedure will hot get attracted, unless it is shown that the claim made in the subsequent suit could have been made either wholly or in part in respect of the very same cause of action in the previous suit, the bar engrafted under O. 2, Rule 2 has no application to stand in the way of the subsequent suit. THE object of O. 2, Rule 2 is to ensure as noticed earlier that the relief in respect of the same cause of action is asserted and claimed in one action not to compel the inclusion, in one and the same action, of different cause of action even though they arises out of one and the same event or transaction. So far as Sub-Rule (3) of Rule 2 of O. 2, Civil Procedure Code is concerned, it would be attracted where a number of lies flow up from the same cause of action.