JAGATHAMBA AMMAL Vs. RAMASWAMI IYENGAR

JUDGEMENT

(1.) We cannot go in second appeal, behind the findings of fact in the lower Appellate Court s judgment. On those findings no question of limitation arises. As regards the contention that the purchase in Court auction by the decree-holder s agent was without obtaining the permission of the Court under Section 294 of the Civil Procedure Code and cannot, therefore, be recognised as conferring any title on the Court auction-purchaser or his principal, this question was argued before this Court in Second Appeal No. 1263 of 1911 and the above contention was overruled with the remark that this was an objection that could be raised only by the parties to the suit and not by a stranger like the 1st defendant" (who was the appellant in Second Appeal No. 1263 of 1911 and is also the appellant in the second appeal before us).

(2.) The only other question of law remaining to be considered in this second appeal is whether Order II, Rule 2, Clause 3, Civil Procedure Code, (section 43 of the old Code) bars the plaintiff from bringing the present suit in respect of the plots (c), (e), (f), (g) and (A). The plaintiff s right to possession arose on the death of one Ammani Ammal in January 1905. The 1st defendant trespassed on a land which might be called item 1 and also on the plaint plots (c), (e), (f), (g) and (h) after January 1905. There is nothing to show that the trespass on item 1 was on the very same date as the trespass on plaint plots (c), (e), (f), (g) and (h). Nor is there anything to show that that trespass was on a different date or on a different occasion. The learned District Munsif evidently thought that the question whether the trespass on item 1 by the 1st defendant was part of the same transaction as the trespass on plaint plots (c), (e), (f), (g) and (h), had little bearing on the decision of the question whether the present suit is barred by the plaintiff s failure to include these plots along with item 1 when the plaintiff brought a previous suit, Original Suit No. 100 of 1908, against this same 1st defendant for recovery of item 1 alone. In paragraph 10 of his judgment the learned District Munsif has argued that the mere fact that item 1 and the lands now in dispute passed to the plaintiff under the same title, did not make the cause of action in Suit No. 100 of 1908 and the cause of action in the present Suit No. 198 of 1910 the same and that that fact by itself did not oblige the plaintiff to file a single action for the recovery of both item 1 and the disputed plots. The District Munsif held that because the evidence relating to the possession and enjoyment of the plaint lands and the title set up thereto by the defendants should necessarily be different from the evidence and title relating to land item 1, that because the defendants Nos. 2 and 3 in this suit are strangers to Original Suit No. 100 of 1908 and that because the 3rd defendant in this suit claimed plots (6) and (d) on an independent title, Order II, Rule 2, did not bar the present suit. It has been held in Manonmani Ammal v. Vythialinga Naicker 21 Ind. Cas. 402 : 14 M.L.T. 341 : (1913) M.W.T. 881 : 25 M.L.J. 481 that though the bundle of facts which have to be proved by the plaintiff in one suit to establish his claim in that suit may not be identical in all respects with the bundle of facts which have to be proved by him in a later suit, the cause of action for the two suits within the meaning of that expression in Order II, Rule 2, Clause 3, may be the same for both suits. As said in that same case, " each case must depend upon its own facts, and it is often a difficult matter to decide what facts form par of a particular cause of action", "it not always easy to decide whether a particular fact is of such importance as to require it to be considered as a part of the cause of action or is such that it must be relegated into the category of the evidence by which the facts making up the cause of action are to be established." The illustration to Order II, Rule 2, also shows that the phrase cause of action" is used in Clause 3, Order II, Rule 2, in a more comprehensive sense than it is used in Section 17. In the above case in Manonmani Ammal v. Vythialinga Naicker 21 Ind. Cas. 402 : 14 M.L.T. 341 : (1913) M.W.T. 881 : 25 M.L.J. 481 Miller and Tyabji, JJ., held that where a person by two separate transactions, one after the other, acquired the shares of two out of five members of an undivided Hindu family, he had but one cause of action (after the date of the second purchase, we think, should be added) against the family to have his 2/5th share marked out and put in his possession and that the first suit brought to recover l/5th share acquired from one brother barred his subsequent suit to recover the other brother s share. Miller, J., in his judgment distinguished the case, Kuppuswamy Aiyer v. Subramania Aiyer 1 M.L.J. 73 on the ground, that different and separate parcels of land were in question" in the two suits referred to in that case. We think that that case might be distinguished also on the ground that the two suits in that case were brought, not against a joint Hindu family for partition of the same block of land as in Manonmani Ammal v. Vythialinga Naicker 21 Ind. Cas. 402 : 14 M.L.T. 341 : (1913) M.W.T. 881 : 25 M.L.J. 481 , but by an ordinary co-sharer against his other co-sharers for partition of different plots of land held in common. In Gangi v. Ramaswami 12 M.L.J. 103 it was held that if the defendants are different and the properties in the suits are different, Order II, Rule 2, is no bar to the second suit, though the plaintiff and the title relied on by the plaintiff be the same in the two suits. In the present case, the 1st defendant is the principal defendant in both the suits so far as the properties item 1 and items (c), (e), (f), (g) and (h) are concerned and the mere fact that the tenants of the two sets of properties holding under the 1st defendant are different or that the present suit includes properties which are not claimed by the 1st defendant, cannot prevent the bar under Order II, Rule 2, Clause 3, from having its effect so far as plots (c) and (e) to (h) are concerned. In Shanmugam Pillai v. Syed Gulam Ghose 27 M. 116 it was held that though the landholder had obtained two separate muchililkas for fastis 1305 and 1306 from the same tenant for the same holding, his first suit for the rent of fasli 1306, based on the separate muchilka of 1306, barred his subsequent suit for the rent of fasli 1305 based on the different muchilika of 1305. In Hari Narain Banerjee v. (Shama Simdari Dassi) Kusum Kumari Dasi 6 Ind. Cas. 159 : 37 C. 589 : 11 C.L.J. 551 it was held that a subsequent mortgagee who had paid up a prior mortgage-debt under Section 74 of the Transfer of Property Act, could not bring a separate suit for the money so paid by him to the prior mortgagee after he had brought a suit on his own mortgage for the mortgage money due to himself, as he ought to have added the amount he paid under Section 74 of the Transfer of Property Act to his claim on his own mortgage- bond in the first suit. In Riayatullah Khan v. Nasir Khan 6 A. 616 : A.W.N. (1884) 185 the facts were as follows: R purchased two houses under the same sale-deed in 1876. In 1880 he sued for possession of one of the houses alleging that he had been dispossessed by the ancester of the defendant. Subsequently, he brought a second suit for possession of the other house against the same defendant alleging that at the time when he instituted the former suit, he had already been dispossessed of the house now in question and by the same person. It was held that though the plaintiff s title to both the houses rested on the title acquired by him under the same title-deed, yet the cause of action, viz., his ouster from the two houses on different occasions, gave rise to two separate causes of action, which he was not bound to join in the first suit and that Sections 42 and 43 of the Civil Procedure Code did not bar his second suit. It seems to us that where the title of plaintiff is the same and the trespasser defendant is the same defendant in both suits, the question whether the second suit is barred by the first depends upon the answer to the following question, namely, "Did the two trespasses take place on or about the same time and as part of the same transaction so that the two trespasses might be considered (taking a commonsense view of the facts) as a single transaction forming one and the same cause of action?" This aspect of the question was not considered by the District Munsif. The lower Appellate Court merely says that the trespass on item 1 by the 1st defendant -might have been on a different date" from the trespass on the plots now in dispute. If the trespass on the plaint plots took place after the first Suit No. 100 of 1908 had been brought, Order II, Rule 2, Clause 3, can, of course, be no bar to the present suit. The finding in the present suit is vaguely to the effect that the 1st defendant s possession began after the death of Ammani Animal, 1st defendant s mother-in-law (See paragraph 12 of the Subordinate Judge s judgment). As Ammani Ammal s death admittedly took place in January 1905, this finding leaves us in doubt; whether the trespass took place after or before Original Suit No. 100 of 1908 was brought. The lower Courts, however, have both proceeded on the ground that it took place before Original Suit No. 100 of 1908 was brought and have yet held that Order II, Rule 2, Clause 3, does not bar the present suit. The question whether the trespass of the 1st defendant on item 1 (which was one of the bundle of facts to be considered by the Court in Original Suit No. 100 of 1908) formed part of the same transaction as the trespass on the disputed plots and whether the trespass took place on or about the same date and in the same cultivation season so that they might be considered as constituting the same cause of action, was not considered properly by either Court. The importance of this question on the applicability of Order II, Rule 2, Clause 3, seems to have been ignored in the trial of the suit (and it is not surprising that it was so ignored as the question of law is by no means free from doubt and difficulty) and we consider it proper to allow both parties to adduce fresh evidence on the above question and we remand the case to the lower Appellate Court for a finding on the following issue:

(3.) Whether the 1st defendant s taking wrongful possession of item 1 (which was in dispute in the former suit Original Suit No. 100 of 1908) formed part of the same transaction with her taking wrongful possession of the plots (e), (e), (f), (g) and (h) in the present suit, and when and on what date or dates did the said acts take place?