NARAYAN BHAGWAN GANDHI Vs. SHAMRAO LAXUMAN

JUDGEMENT

(1.) The only question to be determined in this appeal is whether the present suit is barred by the provisions of Secs.42 and 43 of the Civil Procedure Code.

(2.) The plaintiff sues on a certificate of sale, dated the 12 November, 1883, under which he purchased the right, title and interest of Rajaram and Sitaram Haibat in certain Khoti and dhara lands situated in the villages of Shiravali, Vasapa, Ravatale and Vinhere. Exhibits 89 and 90 are the certified copies of the decrees passed in two suits--No. 518 of 1892 brought by plaintiff for the possession of certain lands situate in Vasape against defendants 4, 9, 10, 11 in the present suit and No. 519 of 1891 for the possession of the khoti share of the village Ravatale against defendant 5 in the present suit. The present suit is to recover separate possession by partition of a one-third share of the lands situate in the villages of Shiravali, Vasape, Ravatale and Vinhere mentioned in the sale certificate, together with mesne profits and costs. The cause of action is the same as that in the previous suits, namely, the right to possession under the certificate of sale.

(3.) Section 42 provides that every suit shall as far as practicable be so framed as be afford ground for a final decision upon the subjects in dispute and so as to prevent further litigation concerning them. The object of this section is to give effect to the maxim Interest reipublicae ut sit finis litium. Section 43 lays down that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. A plaintiff is not entitled to split up an entire cause of action so as to bring distinct suits in respect of distinct parts of the same cause of action. If a plaintiff omit to sue in respect of, or intentionally relinquish, any portion of his claim, he shall not afterwards be allowed to sue in respect of portion so omitted or relinquished. Both suits have been based on the same cause of action. It was open to plaintiff to ask for possession of the property now claimed in the previous suits. The cause of action does not vary, as urged by Mr. Khare, with the relief claimed. The observation of Stuart, C. J., in Sarsuti v. Kunj Behari Lal (1885) 5 All. 345 on this point may be cited in this connection. He says: I may point out what appears to me to be a misapprehension of the law by which the term "relief" is confounded with the larger and more comprehensive expression "cause of action." Neither in Section 7 of Act VIII of 1859, nor in the corresponding Section 48 of Act X of 1877, is the word "relief" or any single term corresponding to it to be found. On the contrary, it is "the whole of the claim arising out of the cause of action" that must be included in the suit, and the term "relief," to my mind, ought to be understood as synonymous with the words "any portion of the claim," which are to be found both in Section 7 of the Act VIII of 1859 and Section 43 of Act X of 1877. The word "relief," at least as used in this country, is not a term of exact or precise technicality, but simply means the remedy which a Court of justice may afford in regard to some actual or apprehended wrong or injury, such remedy being large or small as the case may be. But it is not synonymous with "cause of action," that term including all the relief covered by the facts, on the strength of which a plaintiff comes into Court, and therefore "if he omits to ask for any of them, he does so under the sanction of Section 7 or Section 43.