RAMAN MENON Vs. MAMMALI

JUDGEMENT

(1.) The plaintiff is the appellant in this second appeal. He brought the suit in ejectment on the basis of an unregistered kaichit, dated October 1894, alleged to have been executed by the deceased Pakru whose representatives are the defendants Nos. 1 to 6, Both the lower Courts found that this unregistered kaichit was not a genuine document The plaintiff based his claim also upon his title. When he so based his claim on title, he ought to have stated in his plaint when he was dispossessed by the defendants, so that the Court might be satisfied that the suit on title is not barred by limitation, that is, that he had not been dispossessed more than twelve years before suit. He did not give any indications in his plaint on these points, evidently because the plaint was substantially based on the alleged kaiehit of 1894. When the case came up on second appeal before this Court, it remanded the suit for a finding by the lower Appellate Court on the issue whether the possession by Pakru or the defendants of the suit property was at any time previous to this suit adverse to the plaintiff and if so, from when it began to be adverse and till whin it continued to be adverse.

(2.) It is common to both sides that Pakru was originally a tenant under the plaintiff s tarwad. The plaintiff s tarwad put an end to the tenancy and then brought a suit, Original Suit No. 563 of 1892, to eject Pakru. That suit resulted in a decree in ejectment. But that decree was not executed and was allowed to be barred. It seems to me clear that when a plaintiff has obtained a decree for possession of immoveable property and allows execution to become barred, he cannot bring a fresh suit for ejectment against the same parties or their representatives, unless any events have happened between the date of the decree and the date of the second suit which fresh events have given rise to a fresh cause of action in ejectment. The finding of the lower Appellate Court is that no such events have happened. On that finding it seems to roe that this suit is clearly barred as res judicata.

(3.) We are next asked to admit fresh evidence in second appeal in order that the finding of Appellate Court might be attacked on such fresh evidence. In 1872 the Bombay High Court decided in Nmabhai Vallabhdas v, Nathabhai Haribhai 9 B.H.C.R. 89 that it was not competent to the High Court admit fresh evidence as to facts in second appeal and that decision was followed in Bqmckandra Pandurang Sathe v. Krishnaji Vithal Joshi 28 B. 4 ; 5 Bom. L.R. 615, and the same practice has prevailed in this Court, The proper course, where a party thinks that any fresh evidence which is discovered after the decision of the Appellate Court would have been of assistance to him if it had been considered at the original trial or in the appeal, is for him to withdraw the second appeal and apply for review of the judgment in the lower Appellate Court. We must, therefore, dismiss the petition presented to us for allowing fresh evidence to be admitted in second appeal.