OMAN SHEIKH Vs. HALAKURI SHEIK

JUDGEMENT

(1.) The facts of this case are shortly these: The plaintiffs brought a suit against the defendants for recovery of possession of certain immoveable property and obtained a decree in the year 1892. They, however, did not apply to the Court, which made the decree for execution thereof within the time prescribed by the law of limitation. They then brought the present suit, and this was in August 1903, for recovery of possession of the same property upon the ground that though they did not obtain possession through the Court, yet they succeeded in getting possession amicably from the hands of the defendants, and that they continued in such possession until the year 1309 B.S., corresponding to the year 1902, when they were dispossessed.

(2.) The lower Appellate Court has dismissed the suit upon the ground that it is barred both under the provisions of Section 13 and Section 244 of the Civil Procedure Code, and also upon the ground that the plaintiffs cause of action, if there was any, had arisen antecedent to the institution of the previous suit, and that the same cause of action would not arise again for the subsequent suit, after they had allowed the previous decree to be barred by limitation.

(3.) So far as the provisions of Secs.13 and 244 of the Code referred to in the judgment of the Court below are concerned, we do not think that they operate as a bar to the maintenance of the present suit; but we do not understand how, when the plaintiffs allowed the previous decree to be barred by limitation and when that decree has now become absolutely null, they can regard that decree as affording to them a fresh cause of action in order to entitle them to maintain the present suit. No doubt, if the plaintiffs had succeeded in obtaining possession, as alleged in their plaint, without the intervention of the Court, and had remained in such possession, and then had been dispossessed, that would certainly have given them a fresh cause of action; and they might have relied upon the decree in their favour as a document conclusive between the parties so far as the question of title is concerned. But that is not what has happened in the present case. It has been found that the plaintiffs never executed the decree, never obtained possession amicably as alleged in the plaint; and that being so, we are unable to hold that the mere fact that there was a decree made in their favour would entitle them to institute a fresh suit upon the same cause of action upon which the former suit had been founded We need hardly add that the argument of the learned vakil for the appellant proceeds upon the idea of a cause of action different from that which was alleged in the plaint. In the plaint, as we have already mentioned, the cause of action was dispossession by the defendants in the year 1902, but now it is said in the course of the argument of the learned vakil that there was a right conferred upon the plaintiffs under the decree which was made in their favour, and that they attempted to take-possession, but were dispossessed.