RAM PRASAD SINGH Vs. RADHA PANDAY

JUDGEMENT

(1.) These are appeals by defendant in two suits from a decision of the learned subordinate Judge of Arrah, reversing a decision of the Munsif of Buxar. The appellant was a stranger auction-purchaser at a sale of certain lands comprising the holding of the plaintiff respondent and situated in two khatas. Shortly after the appellant's purchase, the respondent brought two suits (suits Nos. 8 and 9 of 1934) for declaration of his title over the plots which had formed the subject of the sale. At that time the appellant had not taken out delivery of possession.

(2.) In the same year, 1934, however, during the pendency of those two suits the appellant took out dakhaldehani, and obtained possession through the Court. The respondent did not amend his plaint, or apply for the additional relief of recovery of possession. He succeeded, however, in establishing his title, and obtained a decision in his favour in both suits. By an accidental omission two plots, namely, No. 1378 comprising 1.5 acres in khata No. 106 and plot No. 1379 comprising 3.91 acres in khata No. 143, were omitted from his claim. At a late stage the plaintiff applied to amend the plaints by the inclusion of those plots, but that prayer was refused. The result was that the respondent obtained no declaration with regard to these two plots. To remedy the omission he then in 1936 brought the suits, which form the subject-matter of the present appeals. His title was not seriously questioned, but the defence was taken that the suits were barred under the provisions of Order 2 Rule 2, Civil P.C. This plea succeeded before the learned Munsif, and the suits were dismissed.

(3.) In appeal, however, the learned subordinate Judge reversed that decision, holding that the suits were based upon a distinct cause of action, inasmuch as there was no prayer for possession in the suits of 1934, (and indeed there could have been none when the plaints were filed, since at that time the plaintiff was still in possession) but in the present suits, which were of course brought after the defendant had obtained dakhaldehani, the claim was for declaration of title and recovery of possession.