SEETHARAMA SASTRIAL Vs. SEETHARAMA AYYAR

JUDGEMENT

(1.) THIS is an application to revise the decree of the Court of the Small Causes at Kumbakonam, in S. C.S. No. 980 of 1925. The Subordinate Judge dismissed the suit on the ground that it is barred by Order II, Rule 2, Civil Procedure Code. In the previous suit the plaintiff asked for possession of the property purchased by him. In that case the Subordinate Judge made him. to pay to the 4 defendant the value of the plantain trees standing on the land sold to him and declined to decide the question whether the sale-deed in his favour conveyed the plantain trees as well. The present suit is for the amount paid by him as compensation to the 4 defendant, who was held entitled to the plantain trees in the previous suit. The contention of Mr. Dasikan for the respondent is that the plaintiff ought to have got his remedy in the previous suit against his vendors and he is not entitled to bring a separate suit. I think this case is covered by the ruling in Venkatarama Ayyar V/s. Venkata Subramanian 24 M.27; 10 M. L. J. 217. In that case the plaintiff purchased property from a member of a joint family and it was found that the interest of another member was not conveyed to him. He brought a subsequent suit to recover the balance of the price paid. It was held by a Bench of this Court that the suit was barred. In this case, the plaintiff sued for possession of the plantain trees as well, as he was ordered to pay the value of the trees to the 4 defendant who was the tenant at the time. The question whether the sale-deed conveyed the trees or not was not decided in the previous suit. As the question in the present case, whether the sale deed conveyed the trees or not and if it did convey, whether the plaintiff is entitled to relief or not, was not gone into in the previous case but was reserved for determination in subsequent proceedings. I do not think that the plaintiff's suit is barred by Order II, Rule 2, Civil Procedure Code. I, therefore, set aside the judgment of the Subordinate Judge and remand the case for trial on the merits.

(2.) COSTS will abide the result.