BHUWAN COOVERJEE DHAKAD Vs. CHHITAR SARDAR DHAKAD

JUDGEMENT

(1.) THIS second appeal by the plaintiff Bhuwan arises out of Civil Suit No. 66 of 1949 filed by him in the Court of Civil Judge 2nd Class, Depalpur, for partition and possession of his share in the family properties. The facts in the case are not disputed. The following geneology shows the relationship between the parties: The dispute relates to the lands left by Ganpatji which passed after his death to his widow Mst. Pyaribai, who died in February 1948. The plaintiffs first filed Civil Suit No. 10 of 1949 alleging that on 10 -2 -1948 the respondent had induced Mst. Pyaribai to execute a few days before her death an adoption deed adopting Chhitar, respondent No. 1 as her adopted son. The relief claimed in that suit was a declaration that the deed was null and void and did not bind the plaintiff. While that suit was pending, the plaintiffs filed another suit (Civil Suit No. 66 of 1949) on 11 -3 -1949. It was stated in that suit that the property of Ganpatji passed after the death of Mst. Pyaribai to the two appellants and the two respondents in equal shares and the plaintiffs were therefore entitled for partition and separate possession of their half share. The two suits proceeded together. The trial Court dismissed the first suit holding that the adoption had been proved and the plaintiffs were not entitled to a relief of mere declaration, as they should have claimed possession also. The second suit was dismissed on the ground that the decision in the first suit operated as res judicata.

(2.) THE lower appellate Court held that the decision of the trial Court on the question of adoption suffered from certain infirmities, but agreed that under section 42 of the Specific Relief Act that suit was liable to be dismissed, as the plaintiffs had not claimed the consequential relief of possession. The second suit was also dismissed on the ground that it was barred by the rule of res judicata. The plaintiffs did not prefer any appeal against the dismissal of the first suit. The present appeal is directed against the decision of the second suit. From a perusal of paragraphs 8 and 9 of the judgment of the lower appellate Court it is clear that that Court held that the decision of the trial Court on issue No. 9, which related to the authority of the widow to adopt, has not been properly given and the case would have required a remand for the purpose. That suit was, however, dismissed on the technical ground that it did not lie for a mere declaration. In paragraph 10 of the judgment, the lower appellate Court has held that the subject -matter of the two suits was almost identical and the dismissal of the first suit barred the second. On behalf of the appellant, Shri S.D. Sanghi has contended that as the first suit was dismissed on a technical ground without any decision on the merits of the adoption, the finding of the lower appellate Court that it operated as res judicata is erroneous.

(3.) AS against the cases cited on behalf of the appellant, Shri R.K. Vijayvargiya for the respondents Nos. 1 and 2 relied upon the decision in Subhan Ali v. Imami Begam AIR 1922 Nag. 129. In that case, the first suit was for a declaration and a right to a share in the estate itself. That suit was decreed, but actually the plaintiff's were not in possession of the estate at that time. This fact was not noticed by the Court, and later on the plaintiffs filed a second suit for recovery of possession. On these facts, it was held that the second suit was barred. A perusal of the judgment in that case shows that the reason for holding the second suit barred is that in the first suit the plaintiffs had claimed the declaration along with some consequential reliefs and had omitted to claim the other consequential relief of possession. It was, therefore, held that the second suit was barred under Order 2, rule 2, Civil Procedure Code. The fact that the first suit had succeeded on merits and was not dismissed on a technical ground distinguishes that decision from the others which have been cited in support of the appeal. I hold that the cause of action for having the adoption declared void in the first suit is entirely different from the cause of action for partition and possession in the second suit. In the first case, the cause of action is based upon the fact of adoption, while in the second case the cause of action is furnished by the right of the plaintiff to inherit to the property. Under these circumstances, the lower appellate Court was in error in holding that the decision in the first suit operated as res judicata or that the second suit was barred under Order 2, rule 2, Civil Procedure Code. It was next contended by Shri Vijayvargiya for the respondents that apart from the second suit being barred by the rule of res judicata or under Order 2, rule 2, the second suit should be dismissed as an abuse of the process of the Court. Reliance is placed on Raj Kumar v. Hystaddi Lal AIR 1952 Punj. 190 for this contention. In that case, a suit was brought on behalf of the minor and when it had reached the stage of evidence the plaintiff applied for withdrawal of the suit with liberty to bring another. This application was rejected and on the date fixed for evidence, as the plaintiff did not adduce any evidence, the suit was dismissed under Order 17, rule 2, Civil Procedure Code. In the meanwhile, another next friend on behalf of the same minor filed a second suit for the same relief with slightly varied allegations in the plaint. It was held, under these circumstances, that the second suit was an abuse of the process of the Court inasmuch as it was only intended to avoid the order passed in the first suit. The facts of the instant case are quite different. No attempt is being made by the plaintiffs in the second suit to avoid the orders passed in the first suit. As I have already, said the causes of action in the two suits are quite different and the failure of the plaintiffs in the first suit on a technical ground does not debar them from bringing the second suit, much less can the second suit be considered to be an abuse of the process of the Court.