DWARKADAS NATHAMAL Vs. VIMAL ALIAS YAMUNA

JUDGEMENT

(1.) THE question which falls for decision in this Second Appeal is whether the suit filed by the appellant to recover mesne profits of the years 1951-52 and 1952-53 is barred under Order 2, Rule 2 of the Code of Civil Procedure by reason of a previous suit which was filed by him on the 17th of February 1954 to recover mesne profits of the year 1950-51.

(2.) TWO agricultural lands bearing survey Nos. 41/1 and 63, situated at Brahma, District Akola, originally belonged to Uttamrao and others. In execution of a decree which was obtained by one Nathamal, the lands were put to sale and were purchased by the appellant who obtained actual possession thereof on the 5th of August 1950. The 1st defendant and the predecessors-in-tltle of some of the other defendants hereafter filed an application under Order 21, Rule 100 of the Civil Procedure Code stating that they were in lawful possession of the property and complaining that the appellant had unlawfully dispossessed them. That application was granted, as a result whereof possession was restored to the defendants on the 16th of July 1951. The appellant then brought a suit under Order 21, Rule 103 of the Civil Procedure Code to establish his right to the present possession of the property. That suit was decreed and the appellant regained possession on the 2nd December 1953. It shall have been noticed that as a result of the order which was passed in the proceedings taken by the defendants under Order 21, Rule 100, they were In possession from 16th of July 1951 till the 2nd of December 1953. On the 17th of February 1954 the appellant filed Civil Suit No. 12/b of 1954 against the defendants to recover mesne profits for the year 1950-51. The cause of action as set out In the plaint was as follows:

(3.) THE principal defence to the suit was that the clam for mesne profits for the years 1951-52 and 1952-53 should have been included in the earlier suit which was filed on the 17th of February 1954 for the mesne profits of the year 1950-51. It was contended on behalf of the defendants that the right to relief in the two suits arose out of the same cause of action and as the present claim could have been included in the earlier suit, the present suit was barred under Order 2, Rule 2 of the Code of Civil Procedure. The contention of the defendants has found favour with both the Courts, below who have dismissed the suit on the narrow ground of the bar arising under Order 2 Rule 2. Being aggrieved by the decree passed by the learned Additional District Judge, Washim, the plaintiff has filed this Second Appeal.