RAM CHANDER PRASAD Vs. MUKHTESHWAR NATH

JUDGEMENT

(1.) IN the suit filed by the plaintiff appellant the main relief claimed was for partition of his half share in the proper ties in dispute. An ancillary relief was claimed for demolition of a wall also. One of the pleas raised in defence was that the suit was barred under Order 2, Rule 2, C.P.C. The trial court decreed the suit in favour of the plaintiff on the finding that the properties in dispute belonged to the joint family and the plaintiff had half a share in the properties. The plea of the bar under Order 2, Rule 2 was ne gatived. On appeal by the defendants the lower appellate court re versed the decree of the trial court and held that the suit was barred under Order 2, Rule 2. The court further held that although the pro perties were not partitioned in the earlier suit between the parties, but under some arrangement they were in exclusive possession of the land adjoining their respective houses and that the plaintiff had no share in the land which fere in the exclusive possession of the defen dants and the defendants had no share in the land which adjoined the house of the plaintiff.

(2.) THE primary question to be considered in the present appeal is whether the suit was barred under Order 2, Rule 2, C.P.C. Admit tedly Suit No. 82 of 1946 was filed by the plaintiff for partition of joint properties of the family. That suit was decreed and the plaintiff was awarded half share in the properties comprised in the suit. In para graph 3 of the plaint it has been asserted that most of the properties owned by the joint family were partitioned in Suit No. 82 of 1946 of the court of the Civil Judge, Gorakhpur. In paragraph 6 it has been stated that some open land was left out of partition in the earlier suit in which the plaintiff had half a share. The defendants in their writ ten statement admitted the allegations made in paragraph 3 of the plaint. With regard to the land in dispute in the present suit they raised various pleas denying the claim of the plaintiff. It is not ne cessary to enter into this controversy for in my opinion the suit must be dismissed on the ground that it is barred under Order 2, Rule 2. C.P.C.

(3.) LEARNED counsel for the appellant contended that the plaint of the earlier suit had not been filed by the defendants in the present case and in absence of the plaint of the earlier suit, the plea of the bar of Order 2, Rule 2, C.P.C. could not be sustained. Reliance was placed on Gurbux Singh v. Bhooralal I.L.R. 5 Alld. 226. In that case the suit was for possession of certain property and for mesne profits. In the plaint reference was made to a previous suit against the defendant for re covery of mesne profits in regard to the same property for an earlier period. Dealing with the question of bar of Order 2, Rule 2, C.P.C. the Court noticed that the plaint in the suit was in Hindi and that the word 'mesne profits' was an English translation of some expression used in the original. In the absence of the original plaint the Court felt doubt whether the expression 'mesne profits' was an accurate translation of the expression in the original plaint. On the aver ments made in the plaint the Court felt that it was not possible to hold that the cause of action in both the suits was the same for it was not open to the defendant to invite the Court to speculate or in fer by a process of deduction what those facts might be with reference to the relief's which were then claimed. The Court further observed that from the mere use of the words 'mesne profits' therefore one need not necessarily infer that the possession of the defendants was alleged to be wrongful. It is also possible that the expression 'mesne profits' has been used in the present plaint without a proper apprecia tion of its significance in law. What matters is not the characterisa tion of the particular sum demanded but what in substance is the allegation on which the claim to the sum was based and as reparrls the legal relationship on the basis of which that relief was sought." It was in these circumstances the Court held that it was necessary to file the plaint of the earlier suit before the Court could decide the question of the bar of Order 2, Rule 2. No such defect presents itself in the present case. The plaintiff himself alleged in paragraph 3 of the plaint that the earlier suit was filed on the basis that the proper ties were owned by the joint family and that he had half a share in those properties. It is the case of the plaintiff himself that the pro perties involved in the present suit were omitted from inclusion in the earlier suit. No other basis for claiming title to the properties, except that the properties were owned by the joint family, has been set up in the present suit. In view of the allegations in the present plaint there cannot be even an iota of doubt that the case of action for both the suits was the same. In such a situation the rule laid down in Gurbux Singh's case (supra) that in absence of the plaint of the earlier suit the plea of bar of Order 2, Rule 2, C.P.C. could not be decided, is not attracted.