KALI KUMAR CHUCKERBUTTY Vs. ASLAM

JUDGEMENT

(1.) This appeal arises out of a suit for the possession of a holding which the plaintiff had purchased at a sale in execution of a rent-decree in January 1906. He obtained formal delivery of possession in September 1906. The holding consisted of a homestead and the arable land attached thereto. In April 1907, the plaintiff sued for khas possession of that portion of the holding only which included the homestead. His allegation was that the defendants had dispossessed him of the homestead. That it was dismissed for want of prosecution in November 1907. An application to restore was also dismissed in February 1908. The plaintiff had also brought a criminal case charging the defendants with criminal trespass on the arable portion of the holding. The criminal case ended in acquittal in June 1908.

(2.) The first Court held that the plaintiff s suit was barred so far as the homestead was concerned, his previous suit for the homestead having been dismissed. The Court, however, decreed the suit for the arable land. The Court of first appeal has reversed this decision holding that by reason of the dismissal of the previous suit, the suit for the arable portion of the land was also barred under Order II, Rule 2, Code of Civil Procedure.

(3.) The plaintiff appeals. The contention in appeal is that the provisions of Order II, Rule 2, do not apply to the case. The material portion of the rule referred to is to the following effect: "Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.. "Where a plaintiff omits to sue in respect of any portion of his claim, he shall not afterwards sue in respect of the portion so omitted." The previous suit was for a portion of the holding only. The plaintiff in that suit omitted to sue for the arable land. The present suit for the arable land has thus been held to be barred. The argument on appeal, however, is that the cause of action in the previous suit was a re-entry into the homestead only. The cause of action alleged in the present suit was a dispossession from the arable land on a subsequent date and on an entirely independent occasion, namely, after the application for review in the previous suit was dismissed. The argument is that the acts of dispossession being different the causes of action were different and the rule does not apply. The Court of first appeal has, however, found that in fact there were not two separate acts of dispossession; and that the plaintiff never obtained anything more than formal delivery of possession of any portion of the land and that, therefore, the causes of action were not different: they were in fact the same and the allegations in the plaint in this respect were untrue. It is, however, contended that the learned District Judge fell into error in so dealing with the question and that he should not have gone outside the four corners of the plaints in the two cases. In support of this contention the case of Jibunti Nath Khan v. Shib Nath Chuckerbutty 8 C. 819 : 10 C.L.R. 537 is relied upon, in which it is said that the cause of action must be sought for between the four corners of the plaint. The facts of that case were, however, entirely different. In that case the previous suit had been one for confirmation of possession and had been dismissed upon the ground that the plaintiff had never been in possession. The suit which was before the learned Judges was for recovery of possession and it had been held in the suit before them that the plaintiff had in fact been dispossessed. The learned Judges with reference to the facts of the case said that the findings in the previous suit must not be considered in determining whether the cause of action was the same. In the present case, however, we are not concerned with any finding in the previous suit. It is not the finding in the previous suit, it is the finding in the present suit now before us, with which we have to deal and that finding was that the causes of action in the two suits were the same. In Jibunti Nath Khan v. Shib Nath Chuckerbutty 8 C. 819 : 10 C. L : R 537 the finding in the suit before the Court was that the causes of action in the two suits were different. That is the distinction between the present case and the case cited and it goes to the root of the matter. The findings in the present case are (1) that the title is the same, (2) that the parties are the same, (3) that the plaintiff was never in possession and that, therefore, the cause of action was the same. We are of opinion that the learned District Judge fell into no error in so dealing with the case.