DAMPANABOYINA GANGI Vs. ADDALA RAMASWAMI

JUDGEMENT

(1.) The point arising in this second appeal is whether the appellants (plaintiffs) are precluded by Section 43 of the Civil Procedure Code from bringing this suit by reason of their having omitted to include the present claim in their former suit, Original Suit No. 490 of 1887, assuming, as is apparently found by both the Lower Courts, that at the institution of the former suit they were aware that the land now sued for was in the possession of the present defendant and that the same formed part of their father's estate. The first suit was brought by these plaintiffs for the recovery of some other land which was in the possession of the defendant in that suit and the same was awarded to them by the decree of the Appellate Court therein, which was confirmed by the High Court in second appeal on the 13 August 1890 (Exhibit B).

(2.) The present suit was brought in 1896 for the recovery from the defendant herein, of the land mentioned in Schedule A to the plaint which is different from the land mentioned in Schedule B, the subject-matter of the former suit. The plaintiffs ground of title in both the suits is one and the same, i.e., that as the heirs of their father they were entitled to succeed to both the properties on the death of their mother on the 9 January 1887. The former suit was instituted against the defendant therein, by reason of his wrongfully withholding from the plaintiffs, on the death of their mother, possession of the land in Schedule B, and the present suit is brought on the defendants herein similarly withholding the land comprised in Schedule A, the defendants in both the oases having respectively come into possession of the lands comprised in Schedules B and A under separate alienations made by the mother in favour of each on a different occasion. It will thus be seen that though the ground of title is one and the same in both the suits and the cause of action in respect of both arose at the same time, viz., the date of the mother's death, yet the person who wrongfully withheld the land in Schedule B and the person who wrongfully withheld the land in Schedule A are quite different and there was no manner of combination or privity between them in respect of the lands which they severally withheld.

(3.) The words cause of action have all along been held to mean every fact which it is material to be proved to entitle the plaintiff to succeed; every fact which the defendant would have a right to traverse, and have no relation whatever to the defence, but refer entirely to the grounds set forth in the plaint as the cause of action Cooke V/s. Gill L.R. 8 C.P. 107, Shankar v. Dya Shankar L.R. 15 I.A.; Chand Kour V/s. Pertab Singh L.R. 15 I.A. 156.