BANDAN KURMI Vs. BINDRA KURMI

JUDGEMENT

(1.) This appeal arises out of a suit for the removal of a kolhu or sugar mill from plot No. 354 and for possession of the land lying under-neath it. There was a also a prayer for a perpetual injunction. Both the Courts below have held that the plaintiff is the zamindar of the plot: in suit. The trial Court gave him a decree. One of the defences was that the kolhu had been in existence for more than 12 years. Both Courts below have found that it has not been in existence for more than five or six years. The learned Judge of the lower appellate Court dismissed the suit on the application of the principles of order 2, Rule 2, Schedule 1, Civil P.C.

(2.) In the year 1931 the plaintiff instituted a suit No. 3 of that year, in which he asked for the removal of certain other constructions on plot No. 354. The learned Judge of the lower appellate Court has found that this kolhu was in existence at the time when the suit of 1931 was instituted and he has held that the plaintiff should have included the removal of the kolhu as one of the claims in that suit and as he did not do so he is barred now from claiming any relief in respect of it. I may say at once that the reliefs which were sought in the suit No. 3 of 1931 as they appear in the decree which is on the record are not very artistically expressed. The plaintiff in that suit prayed that he might be given possession of plot No. 354 in which the constructions complained of were standing and that he might get possession of the land lying underneath those constructions. He prayed that the constructions should be removed and that the land lying underneath them should be restored to its original condition. If the relief can be construed as implying a claim to the possession of the whole of plot No. 354 there is no doubt that the principles of res judicata would apply. The suit at that time was dismissed and it would not be possible now for the plaintiff to claim possession of any part of plot No. 354 against the defendants. It seems to me however that the real intention in the previous suit was to recover possession only of those parts of plot No. 354 which were covered by the constructions and to obtain also a demolition of those constructions. A claim to other parts of plot No. 354 would therefore not be barred by the principle of res judicata. I do not see how the rule in. Order 2, Rule 2, Civil P.C. can apply to this case. Each construction gave rise to a separate cause of action and there was nothing to prevent the plaintiff from suing on a cause of action in respect of one or more of the constructions and Leaving to a later suit any relief in respect of a cause of action arising out of another construction.

(3.) It has been suggested that a case may arise where a trespasser build a house and where the plaintiff conies in succession to obtain removal of a staircase and a room and so forth until by degrees he has the whole house removed. It is pointed out that a procedure of this nature could not be tolerated. The reply to that is that a house is one entity and that the cause of action arising from the construction of it would be one cause of action. There is however no reason for supposing that the kolhu which is in suit in the present case had any connection whatsoever with the other constructions which were the cause of the suit of 1931. The mere fact that these constructions were standing in one plot would not lead to the conclusion that they all gave rise to one cause of action. A plot might be of any size and it would be as reasonable to suggest that a zamindar in a village should be compelled if he sued for the removal of one construction in one part of the abadi, to sue at the same time for the removal of all other constructions which might amount to trespasses in other parts of the abadi. As there were separate causes of action it was not incumbent upon the plaintiff to sue in respect of the mill when he instituted the suit in respect of the other constructions in the year 1931, I hold therefore that his suit was not barred either by the rule of res judicata or by any application of the principles set forth in Order 2, Rule 2, Civil P.C. That being so, on the findings of the Court below the suit should have been decreed. I allow the appeal and setting aside the decree of the lower appellate Court restore the decree of the trial Court. The plaintiff-appellant will get his costs. I am asked to make it clear1 that the decree is in respect only of that part of plot No. 354 which lies underneath the kolhu which is to be removed. Leave to appeal is refused.