GURBAX SINGH Vs. BHAJAN SINGH

JUDGEMENT

(1.) This is plaintiff's Second Appeal whose suit for possession of the agricultural land has been dismissed by both the courts below.

(2.) Bhajan Singh, son of Tota Singh and Ram Rakhi, widow of Tota Singh were the owners in possession of 205 Kanals and 13 Marlas of land. The suit land measuring 32 Kanals formed part of the said land. Bhajan Singh defendant sold the suit land for a consideration of Rs. 2,000/- vide sale deed registered on 24th May, 1967 in favour of the plaintiff-appellant. According to the plaintiff, the possession was delivered to him but he could not get the mutation sanctioned regarding the sale of the suit land in his favour and therefore, the defendants taking benefit of the wrong entries in the revenue record took the possession of the suit land illegally a year prior to the filing of the suit. The suit was contested by the defendants, inter alia, on the ground that earlier the plaintiff had filed a suit against the defendants on 26th May, 1972 for possession of 1/7th share of 207K 2M of land, including the suit land, and the same was dismissed. Thus, in the previously instituted suit, the plaintiff did not make mention of the sale deed in his favour and, as such, the suit was liable to be dismissed. However, the trial court found that the plaintiff did purchase the suit land from defendant No. 1 under registered sale deed dt. 23rd, May, 1967 but no possession was, ever delivered to him under the said sale deed and, therefore, the question of dispossessing the plaintiff did not arise. The suit was ultimately dismissed on the ground that the present suit was barred under O.2, R.2, Civil P.C., because in the earlier suit the plaintiff never pleaded the sale deed dt. 23rd May, 1967, executed in his favour by Bhajan Singh defendant. In appeal, the learned Additional District Judge affirmed the said finding of the trial court and, thus, maintained the decree dismissing the suit. Dissatisfied with the same, the plaintiff has filed this Second Appeal in this Court.

(3.) The only short question involved in this appeal is whether the present suit is barred under O.2, R.2, C.P.C. or not. Order 2, Rule 2, C.P.C. provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and if a person entitled to more than one relief in respect of the same cause of action omits, except with the leave of the Court, to sue for all such reliefs he shall not afterwards sue for any relief so omitted. It is the common case of the parties that the cause of action for the earlier suit was the death of Tota Singh as the plaintiff Gurbux Singh claimed himself to be one of the heirs along with the defendants. Therein he claimed 1/7th share of the total land measuring 207K 2M of land left behind by Tota Singh deceased. The said suit filed by Gurbux Singh plaintiff was dismissed by the trial court on 28th August, 1973. The copy of the plaint in the said suit is Ex. D1 while the copy of the judgment dt. 28th August, 1973 is Ex. D2. The present suit was filed on 1st March, 1977, the cause of action for which was the sale deed dt. 23rd May, 1967 executed by Bhajan Singh after the death of his father Tota Singh in favour of the plaintiff. Thus, it is quite evident that the cause of action for the suit filed earlier and the cause of action for the present suit are quite different. Once it is so held that the cause of action for the earlier suit was different, the provisions of O.2, R.2, C.P.C. are not attracted. It may be that in the earlier suit filed by the plaintiff it could be pleaded in the alternative that he was entitled to the possession of 32 Kanals of land on the basis of the sale deed executed by Bhajan Singh in his favour. Having failed to do so, the plaintiff was not debarred to claim the relief by filing the present suit on the basis of the sale in his favour which provided totally independent cause of action. The approach of the Courts below in this behalf is wholly wrong, illegal and misconceived.