A SURYANARAYANA MURTI Vs. ADI CHANDRAMMA DHERA

JUDGEMENT

(1.) THESE two appeals arise out of two suits filed by the respondent-plaintiff. O.S. 327/53 was filed for the recovery of possession of certain property alleging inter alia that the plaintiff who is the nephew of the deceased is entitled to inherit property after his death. It was claimed that the paternal uncle had made an alienation of the suit property in favour of the 2nd. defendant on 5-5-1923 under Ex. B-3, which is nominal and was not intended to be given efect to. D-1 in that suit is the husband of the 2nd. defendant and D-3 to D-5 are their children. The second suit which was instituted on the same date i. e., 15-7-1953, is O. S, 323/53. That suit related to other properties than the one involved in the earlier mentioned suit. That suit was instituted against all the defendants in the first suit except the 2nd. defendant It was alleged inter alia in that suit that the paternal uncle had executed a will, Ex-A-7, on 18-12-1918 according to which the property was to go to the defendants, but this will was subsequently revoked. I am not concerned with the defences raised in these two suits, as nothing turns upon them in so far as the two appeals before me are concerned. The trial Court held in the first suit that Ex. B-3 is nominal. It rejected the contention of the defendants that both the suits are barred by Order 2 Rule 2. P. C In the 2nd. suit the trial Court held that the will stood revoked during the lifetime of the plaintiff's paternal uncle. The Appellate Court however held that both the suits are barred by the provision of Order-2 Rule-2 C.P. C and dismissed both the suits consequently. The principal contention of Mr. K. B. Krishna Murty, the learned Counsel for the appellant in both the appeals, is that both the suits in any case cannot be barred under Order 2 Rule 2. This question was not disputed by the learned Counsel for the respondents. The very language of Order 2 Rule 2 indicates that it is the subsequent suit which is barred and not both the suits. The true question involved in these appeals however is whether the two raits are based on the same cause of action in order to attract the bar of Order 2 Rule 2. It is now not in dispute that in order to apply Order 2 Rule 2 two conditions must be satisfied, firstly that the previous and the present suit must arise out of the same cause of action, and secondly both the iuits must be between the same parties. The term 'cause of action' obviously means the cause of action on the foot of which the suit is brought. In order that the cauie of action for two suits may be the same it is necessary not only that the facts which would entitle the plainutt to the right claimed must be the same, but also that the infringement of his Likewise in the second case the plaintiff in order to succeed must have to prove his allegations made in the plaint viz., that he is the heir of his paternal uncle and that Ex. A-7 dt. 18-12-1918, the will, was revoked by his paternal uncle before his death. Unless he gets rid of the will, it is not in dispute that the plaintiff merely because he happens to be the heir of his paternal uncle, would be entitled to recover the possession of the property. It is thus evident that in one case he has to gt rid of the sale deed and in another the will, and to that extent the two sets of facts alleged in the two plaints are distinct. The learned Advocate for the respondents wanted these facts to be treated as pieces of evidence. I fail to see how they can be pieces of evidence and not facts. THESE are the solid facts alleged in the plaints in order to get rid of which some further facts were alleged. The sale deed was sought to be avoided on the ground that it is nominal and the will on the ground that it was revoked. Unless these facts are proved, it would be deemed that the plaintiff admitted the existence of the sale deed and the will, and unless he gets rid of these two documents in the two suits, it is obvious that he will not be able to succeed. Merely because the plea that he is the heir to his paternal uncle is common in both the suits, it does not mean that, the cause of action in the two suits is the same. It may be that if a trespass arose out of the same transection although properties are different, Order 2 Rule 2 may be attracted in some cases, but where the suits are not based merely on trespass and in reference to the same property and against the same set of defendants, but when the two suits although based on title would require evidence for avoiding the sale in one case and the will in another, it cannot be said that the two suits are based on the same cause of action, and that the evidence led in one case would be entirely enough to dispose of the other suit. I am therefore satisfied that the two suits are based on not only different sets of facts, but entirely on different causes of action. The lower Appellate Court therefore has erred in holding that both the suits are based on the same cause of action. I am fortified in this conclusion of mine by a decision of the Allahabed High Court, which comes substantially close to the facts of the present cases. In Mohammad Umar Khan v. Amiul Rahim Bibi it was decided that "if a Mohammanan sells some of his property to certain heirs and after his death another heir sues for a declaration that the sale deed is fictitious and without consideration and for possession of his legal share in the property covered by the sale deed, the latter is not thereby precluded from bringing another suit subsequently for possession of his share in the other items of property left by the ancestor. The causes of action in both the suits are differant." This decision adopts the test mentioned by me earlier, that is to say, that in considering whether causes of action are identical or whether the evidence which would suffice to enable the plaintiff to obtain a decree in both the suits is the same. Mr. P. Kodandaramiah, the learned Counsel for the respondents, relied upon Md. Khalil Khan v. Mahbub Ali Mian in support of his contention. This decision was fully considered in the Bench decision of this Court referred to above. I do not find that this case in any manner lays down anythinig different from what is stated earlier. Relying upon Venkataswami v. Veeraiah it was argued that trespass being the common factor in both the cases both the suits must be considered to have been founded upon the same cause of action. That decision can easily be distinguished on facts. In that case although suits related to different items of property, it was found that they were portions of the same claim, That was a reversioner's suit, who was entitled to recover the entire property. He could not therefore have split the claim in reference to separate properties and instituted different suits. It was held in that case that a claim should fee put forward to various items of property by a plaintiff when reversion falls and is governed by sub-Rule-1 of Rule-2 and the reverioner cannot reserve his right in regard thereto even with the leave of the Court. The said decision in view of the different sets of facts and tke conclusion drawn from them would not apply to the facts of tke present case. For all the reasons stated above I allow both the second appeals, set aside the judgment and decree of the lower appellate Court to the extent to which the question ef Order 2 Rule 2 relates, and remand the cases ta the lower appellate Court to dispose of the other matters not so far decided in the main appeals on merits and in accordance with law along with the cross-objections. Costs of both these appeals would depend upon the result of the appeals in the lower sippellate Court. Na leave. The appellant will get back the Court-fee in beth the cases.