GANDLA PEDDA NAGANNA Vs. SIVANAPPA

JUDGEMENT

(1.) The lower Appellate Court has dismissed this suit on the pleadings on the grounds that (1) it is barred under Order II, Rule 2 of the Code of Civil Procedure, (2) that it is not maintainable as framed.

(2.) The material facts are as follows: The plaintiffs claim the suit property and are in possession of it as reversioners of the Nagisetti. The first and second defendants, husband and wife, have also been claiming it as reversioners, but under a different title derived from one Veeranna. In Original Suit No, (651 of 1910, the first defendant obtained a decree against; the second defendant for a declaration of her title as Veeranna s reversioner, her mother having been the last person in possession of the property. In Original Suit No. 298 of 1911 the present plaintiffs obtained a decree against the present defendants, declaring their right as reversioners of Nagisetti to certain properties other than those now in suit. Original Suit No. 651 was pending, when Original Suit No. 293 was filed, hut was decided before it.

(3.) The objection to the suit with reference to Order II, Rule 2, is based on the fact that the properties now sued for were in the defendant s possession when Original Suit No. 298 was filed, but have, as the plaintiffs allege, come into their own possession subsequently. The plaintiffs) suit is for a declaration that the decree in Original Suit No. 651 was collusive and has no effect, so far as they and the suit properties in their hands are concerned, and the contention is that they should have asked for their relief in Original Suit No. 298 and therefore cannot ask for it now. The learned District Judge argued that, because they were out of possession of these as well as the other properties, for which they did sue, their cause of action was available for both, and they should have sued for possession of the whole estate. But they are not suing now on any cause of action directly connected with possession, since they have succeeded, in enforcing their right to it otherwise. Their present cause of action, the alleged aloud on their title, created by the decree in Original Suit No. 651, is a distinct grievance, which moreover arose, after Original Suit No. 293 was filed, and therefore could not have been pleaded in it. In these circumstances there can be no objection to the plaintiffs claiming now what they could not have claimed before. This objection accordingly is invalid.