CHANNAPPA GIRIMALAPPA JOLADSHAMSUNDARDAS VISHNUDAS DARBAR Vs. BAGALKOT BANK AND SHANKARDAS VISHNUDAS DARBARCHANNAPPA GIRIMALAPPA JOLAD

JUDGEMENT

(1.) THIS is an appeal against a decision of the First Class Subordinate Judge of Bijapur, and it arises in this way.

(2.) IN 1933 the plaintiff, who was a minor, filed a suit to recover possession of certain immoveable property against his adoptive mother Irawa and purchasers from her. His case was that Irawa had improperly alienated the properties to which the plaintiff was entitled under an adoption which Irawa had made to her husband, and in that suit one issue raised was : Whether Irawa had reserved to her a life interest in the ancestral properties. IN that suit the plaintiff succeeded in getting a decree for possession. Issue No.2 was answered in the negative, so that it was held that Irawa was not entitled to the properties for her life. The decree made in the suit was "the plaintiff do recover possession with future 'mesne profits." The decree was affirmed in 1937 by this Court in appeal. The present suit, which was filed in 1938, is a suit to recover survey No.415/1 and also mesne profits in respect of the properties included in the suit of 1933 prior to the date of that suit.

(3.) ORDER II, Rule 4, is founded on ORDER XIV, Rule 6, of the Rules of the Supreme Court in England, and those rules do not contain any rule corresponding with ORDER II, Rule 2 . It seems to me that it may well be that the expression "cause of action" in ORDER II, Rule 2, has a wider meaning) than the expression in ORDER II, Rule 4 . Moreover the provision in the latter rule may have been inserted ex abundanti cautela without intending to lay down that the causes of action for possession and for mesne profits or arrears of rent accruing were distinct. The judgment of the Privy Council in Naba Kubar v. Radhashyam [1931] A.I.R.P.C. 229 seems to me to support that view. Sir George Lowndes, in delivering the opinion of the Board, said in reference to ORDER II, Rule 2 (page 230):- The rule in question is intended to deal with the vice of splitting a cause of action. It provides that a suit must include the whole of any claim which the plaintiff is entitled to make in respect of the cause of action on which he sues, and that if he omits (except with the leave of the Court) to sue for any relief to which his cause of action would entitle him, he cannot claim it in a subsequent suit. The object of this salutary rule is doubtless to prevent multiplicity of suits. The cause of action in the present suit is, their Lordships think, clearly the same as in the previous suit; the right to the rents and profits rested on the same foundation of facts and law as the right to have the purchases of the decree and of the properties declared to be purchases for the mortgagors.