SHAM SUNDER SINGH Vs. JAGANNATH SINGH

JUDGEMENT

(1.) The short question that we have to answer in this appeal is whether the present suit, i.e. the suit out of which this appeal has arisen, was barred by the provisions of Order 2, Rule 2, Civil P.C.

(2.) The facts briefly are as follows: One Dirg Bijai Singh had four sons, Lal Bahadur Singh, Jagannath Singh, Ran Bahadur Singh and Jang Bahadur Singh. Lal Bahadur Singh's son is Sham Sundar Singh, defendant i, and Sham Sundar Singh's son is Nagendra Bahadur Singh, defendant 2. The other defendants are transferees from defendant 2 s. Dirg Bijai Singh was a taluqdar. He died sometime in 1887. Before his death he made a will by which ho gave the taluqa estate to his eldest son. Lal Bahadur Singh. By way of provision for his other sons, he bequeathed by his will, certain specified items of immovable property, to them, to be enjoyed by them when they chose to live separate from their eldest brother Lal Bahadur Singh. He also directed by the will that in the case of separation all the four sons would have a one-fourth share in the movable property. Jang Bahadur Singh, in agreement with Lal Bahadur Singh, obtained separate possession of the property bequeathed to him by his father. Lal Bahadur Singh had died and San Bahadur Singh and Jagannath Singh found it difficult to obtain possession of the property bequeathed to them. They had to institute two suits, "being Suits Nos. 65 and 66 of 1922 respectively against their nephew Sham Sundar Singh for recovery of the property bequeathed to them, which included a one-fourth share for each of the plaintiffs, in the movable property. The suits were decreed. The present suit is for partition and separation of three-fourths share out of certain properties which had nothing to do with the property of Dirg Bijai Singh. Ajaib Singh, the maternal grandfather of the four brothers Lal Bahadur Singh and others died in 1876 and was succeeded by several daughters sons, he having no son at all. The four brothers, as they were living together with their father, enjoyed the property inherited from Ajaib Singh. As the uncles and nephew have now quarrelled, the three plaintiffs being uncles of defendant 1, have claimed three-fourth share out of the property left by Ajaib Singh.

(3.) The question now is whether the cause of action for the two suits was one and the same, and whether it was incumbent on the present plaintiff s, at least for the plaintiffs Jagannath Singh and Ran Bahadur Singh, to include the present claim in the previous litigation.