RAVIPATI RAMIAH Vs. RAVIPATTI LAKSHMI NARAIN

JUDGEMENT

(1.) THE plaintiff-appellant brought a suit to recover certain property alleging that he was the reversionary heir of ring Veakanna. THE property had been in the possession of Narasitnma a female relation of Venkanna and, according to plaintiff, her possession was under license from him. He, therefore, sued to recover the property from the defendants, who were in possession after Narasimma's death. THE suit was dismissed. THE present suit was brought to recover the same property from the same defendants on the ground that the plaintiff was the heir of Narasimiha who had been in possession of the property. THE dower Courts have found that, this suit, is barred under, Section 11, Expl. IV, of the C.P.C., and the Court of first instance relies on the decision in Govinda Menokki V/s. Govinda Kurup 52 Ind. Gas. 735 : 10 L.W. 170 : (1919) M.W.N. 677 for its decision. That case appears to be very, much in point as also a very recent case reported as Narina Muhammad Rowther V/s. Abdul Rahaman Rowther 72 Ind. Gas. 207 : 46 M. 135 : (1922) M.W.N. 845 : 17 L.W. 188 : 33 M.L.T. 82 : (1923) A.I.R. (M.) 257. THEre are also cases Masilamania Pillai V/s. Thiruvengadam Plllai 31 M. 385 and Gariya Rangaswamy Patrudu V/s. Mojji Appalaswamy 34 Ind. Gas. 456 : (1916) 1 M.W.N. 286, which all support the lower Court's decision and there is also a very recent pronouncement of the Privy Council reported as Fateh Singh V/s. Jagannath Baksh Singh 91 Ind. Gas. 280 : 48 M.L.J. 64 : (1925) A.I.R. (P.C.) 55 : 2 C.W.N. 25 : 12 C.L.J. 117 : L.R. 6 A. (P.C.) 50 : 27 0.C. 334 : 27 Bom. L.R. 725 : 29 C.W.N. 749 : 47 A. 158 : 23 A.L.J. 739 : 22 L.W. 58 (P.C), which is authority to the same effect.

(2.) THE learned Vakil for the appellant is constrained to rely mainly on cases which were decided under the C.P.C. of 1859, viz., Nousha Begum V/s. Umrao Begaum 7 N.W.P.H.C.R. 60 and the dissenting judgment of Garth, C.J., in Denobundhoo Chowdhry V/s. Kristomonee Dossee 2 C. 152 : 1 Ind. Dec. (N.S.) 393. THEse judgments, however, whether they were under the then existing Code correct or not, appear to be in conflict with the very early case of the Privy Council in Woomatara Dibea V/s. Kristokaminee Dossee 11 B.L.R. 158 : 18 W.R. 163. It seems to me here that the plaintiff, at the time of bringing his first suit possessed as he alleges, title as reversioner to Venkanna and also as heir to Narasimma. He sued on his title as absolute owner alleging that the defendants had trespassed upon the property. His cause of action was his absolute right to the property which had been infringed by the trespass of the defendants. Whether his title came to him in one way or in another it appears to me to be immaterial, for it would give him no different right as against the defendants or in respect of the alleged act of trespass, and I think: that, under Section 11, Expl. IV, he certainly might have put forward both his titles to the property and I think that he also ought to have done so. In deciding whether he ought to have done so, the provisions of Order II, Rule 1 are relevant. That rule says: "Every suit shall, as far as practicable, be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them." THErefore, when the plaintiff brought his first suit he should have framed it as far as practicable as to afford ground for final decision in order to prevent further litigation. THEre is no inconsistency between the two pleas set up by him and it would not have been inconvenient to try them together. Since, therefore, Rule 1 says that every suit shall be framed so as to afford ground for final decision, I think under Expl. IV the suit ought to be so framed if possible and the plaintiff ought to have framed his first suit so as to include both the titles which he has now set up in separate suits. Reliance is placed by the appellant on Ramaswami Ayyar V/s. Vythinatha Ayyar 26 M. 760 : 13 M.L.J. 448 but, so far as the facts of the case are concerned, they do not help him for they relate to a case where two different mortgages were sued on, but certain observations are relied on which I do not think really help the appellant. It is suggested that the words "subjects in dispute", in Order II. Rule I, really mean cause of action and cause of action alone, but the observation in Ramaswami Ayyar V/s. Vythinatha Ayyar 26 M. 760 : 13 M.L.J. 448 is as follows: "THE expression subjects in dispute means the cause of action or the subject-matter of litigation, that is, the right which one party claims as against the other." Here the only right claimed by the plaintiff as against the defendants is the right of possession as owner, and, consequently, the "subject in dispute" is the same in both the suits. Again a quotation from Scotland, C.J.'s judgment in Chinniya, Mudali V/s. Venkatachella Pillai 3 M.H.C.R. 320 appears at page 767, Page of 26 M.--[ED]: "I take it to be also clear, as a general rule, both on principle and authority, that when a question of right or title has been adjudicated upon in a suit, the bar of the judgment cannot be avoided by suing on a new form of claim or on a ground of relief which might have been, but was not, raised or determined in the former suit". That appears to be applicable to the facts of the present case. THE plaintiff brought his first suit on title. He brought the second suit on the same title, merely alleging different facts as the basis of that title; in fact this second suit is simply a new form of his claim as against the defendants. I do not think it is necessary to refer at length to the cases in this Court cited by appellant. Allunni V/s. Kunjusha 7 M. 264 : 8 Ind. Jur. 135 : 2 Ind. Dec. (N.S.) 768 and Mangalathammal V/s. Veerappa Goundan 52 Ind. Cas. 813 : (1919) M.W.N. 287 which can be distinguished on their facts. Following Muhammad Rowther V/s. Abdul Rahaman Rowther 72 Ind. Gas. 207 : 46 M. 135 : (1922) M.W.N. 845 : 17 L.W. 188 : 33 M.L.T. 82 : (1923) A.I.R. (M.) 257, I must hold that the lower Appellate Court was right and dismiss the second appeal with costs.