ANI @ SAVITRA Vs. VASANT PRALHAD DESHMUKH

JUDGEMENT

(1.) Both the Courts held that the plaintiffs' present suit for possession of immovable property was barred under Order 2, Rule 2 Code of Civil Procedure as this relief, though available, was not included in the earlier suit for mesne profits relating to the same property. The question that arises is whether these decisions are correct having regard to the twin provisions of Order 2, Rule 2 and Order 2, Rule 4 of the Civil Procedure Code. My view is that they are not.

(2.) Before giving reasons in support of this conclusion it will be necessary to set out the skeleton facts.

(3.) One Kisan was owner of a field Khasra No. 15, area 11.99 acres at mouza Khapri, Tahsil Umrer, in District Nagpur. His son Bapurao died in the year 1941 and Kisan died 4 years thereafter leaving behind him widow Laxmi, daughter-in-law Gangubai (Original defendant No. 1) and daughters Ani, Tulshi and Tani (original plaffs.). Laxmibai executed a gift deed in respect of the suit property on 8th Nov. 1952 in favour of the plaintiffs. Daughter-in-law then brought a regular civil suit No. 22-A of 1953 against the plaintiffs and their mother Laxmi for a declaration that the gift deed was not binding on her. There was mutual settlement and on that basis, the suit was disposed of on 13th April 1954. One of the terms of the compromise was that the gift deed was not binding on 1 /2 share of Gangubai and that she should be entitled to that share as limited interest till her life. The case of the plaintiffs has been that in May 1954, the property was mutually divided by metes and bounds into two portions. The northern, 1 /2 portion was allotted to the share of the plaintiffs while the southern to Smt. Gangubai. The original second defendant Vasant, the adopted son of Gangubai, and Gangubai with the help of their associates disturbed the possession of the plaintiffs and destroyed the crops and since then they are in possession of the entire field. Regular Civil Suit No. 24-B of 1954 was filed by the plaintiffs for claiming share of their income for the year 1952-53. It was decreed on 18th July 1960. Subsequently, Regular Civil Suit No. 12-B of 1955 was filed for the similar relief for the year 1954-55 and it was decreed by compromise on 28th June 1962. The plaintiffs got a decree for Rs. 200 and Rs. 120 respectively in those two suits. The present suit being Civil Suit No. 62 of 1963 is for damages for the subsequent period and also for the relief of possession of northern 1 /2 portion or in the alternative for a preliminary decree for partition and separate possession of 1 /2 share.