RAM LAL Vs. MIR JAHANGIR ALI

JUDGEMENT

(1.) This is a first appeal from an order of the District Judge of Gorakhpur remanding a suit to the Court of first instance under the provisions of Order XLI, Rule 23, of the Civil Procedure Code. The question for determination is whether the suit as brought was barred by the provisions of Section 43 of the Civil Procedure Code of 1882. The suit was for recovery of possession of certain plots and for mesne profits. The plaintiff, Jahangir Ali, claims as lessee from one Riayat Bibi. In a previous suit, No. 439 of 1907, this lady herself had claimed damages from the same defendants on the ground that they had dispossessed her from the lands now in suit on July 9, 1905, by ploughing up her standing crops on the said lands and taking possession of the standing trees. The Court of first instance held that the present suit is barred because Riayat Bibi ought to have included a claim for recovery of possession in her suit of 1907. This finding the learned District Judge has reversed on appeal. He says the plaint in the former suit was badly drafted and contained irrelevant matter that Riayat Bibi suffered certain damages in consequence of an act of trespass committed by the defendants on July 9, 1905, but that in the course of this trespass she suffered temporary dispossession only, and must be presumed to have recovered possession as soon as the mischief makers retired, that she was dispossessed subsequently when the trespassers evinced an intention of continuing to exclude her from the lands in Suit and that she, therefore, had two distinct causes of action. A point of this sort can only be decided with reference to the pleadings in the particular case to which it refers. We have examined the pleadings in. the suit of 1907 in detail. We find that Riayat Bibi distinctly stated in her plaint that she suffered dispossession from the lands in suit when the defendants ploughed up the same on July 9, 1905, and that the suit was tried out on this basis. On July 10, 1905, the trespassers executed a lease which clearly evinced their intention of entirely excluding Riayat Bibi from the land in suit. There was never any suggestion that the trespass of July 9, 1905, was committed with any other intention or that there had been any actual or constructive re-entry into possession on the part of Riayat Bibi. If the question in issue were one of limitation it would be impossible for Riayat Bibi, on her own pleadings, to argue that her dispossession from the land in suit occurred, not on July 9, 1905, but on some subsequent date. She had one cause of action and one only, namely her dispossession, effected (as she says in her plaint) by means of the ploughing up of her standing crops. She was, therefore, bound to include in her suit of 1907 the whole of the claim which she was entitled to make in respect of the (sic) cause of action. It was suggested in argument that the plaintiff respondent might be entitled to maintain this suit, even though Riayat Bibi could not have done so. The plaintiff took a lease from Riayat Bibi before the suit of 1907 was filed, but after his lessor's ejectment in July 1905, and at a time when he knew her to be out of possession., It is quite clear that be was cognizant of the suit of 1907, but in any case he has never been in possession and cannot obtain possession now that his lessor has lost the right to do so. We accordingly find that this suit is barred by the provision, of Section 43 of the Civil Procedure Code of 1882. We set aside the decree of the lower appellate Court and affirm that of the Court of first instance dismissing the plaintiff's suit.

(2.) The plaintiff must pay all costs throughout.

(3.) Costs in this Court will include fees on the higher scale.