MUSAMMAT KETKI Vs. DINABANDHU PATNAIK

JUDGEMENT

(1.) This, and the two other analogous appeals, are from three judgments of the Subordinate Judge of Sumbalpore, dated the 3 of January 1907, affirming the judgments of the Munsif of that place dated the 15 of September 1906, in three suits by the plaintiff to recover possession of the occupancy holdings. There was a fourth suit by the same plaintiff against these defendants for possession of a house. Bat no appeal has been preferred to this Court from the judgment of the Court below in that suit. All these four suits were brought on the same date, that is, the 18 of June 1906. It appears that one Saraswati was the gaontia and lambardar of a five anna 4 pie share in village Kinghati. She executed on the 18 of June a usufructuary mortgage of this share and of the house belonging to her for a period of five years in favour of Lokenath Acharjee and his son Padmanav defendant No. I. During the currency of this mortgage the mortgagees took a mortgage by way of conditional sale of an occupancy holding of a tenant, on the 10 of April 1897, and foreclosed it on the 4 of October 1902. This holding forms the subject-matter of suit No. 268. On the same day the mortgagees purchased another occupancy holding and that forms the subject-matter of suit No. 268. On the same day the mortgagees purchased another occupancy holding and that forms the subject-matter of suit No. 269. On the 8 of May 1897, they purchased a third holding and that forms the subject of suit No. 271. On the 12 of March 1901, Saraswati conveyed her rights and interests in the village to the plaintiff. On the 4 of May 1901, the plaintiff privately paid the balance of the mortgage-money to the defendants and redeemed the mortgage. On the 18 of June 1906, the plaintiff brought these four suits. Suit No. 268 was based upon the allegation, that the tenant had no right to mortgage by way of conditional sale, the holding to the defendants without the consent of the Saraswati the then landlord. Suit No. 269 and suit No. 271 were based upon the allegation that the respective tenants of the holding had no right to transfer their holdings to the defendants without the consent of the landlord. Plaintiff then claimed in all the three suits that by reason of such transfers the then landlord and after purchase of the share of the village by the plaintiff, the plaintiff himself had become entitled to obtain possession of these holdings. The fourth suit, which is not under appeal and which was for the possession of the house, was brought upon the ground that the house had been included in the usufructuary mortgage and that after redemption the mortgagee had refused to deliver up possession thereof to the plaintiff. The suits in respect of the holdings were also based upon the alternative ground, namely, that the mortgagees having acquired those holdings during the currency of the mortgage, by virtue of their position as mortgagees of the village, in equity they were not entitled to retain possession of them after the village had been redeemed by the plaintiff. Both the Courts below have given the plaintiff a decree for possession in all the four suits subject to payment by the plaintiff to the defendants a certain sum in each of the "three suits concerning the holdings.

(2.) The fresh contention raised on behalf of the defendants-appellants, is that all the three suits except the one which was the first according to serial number borne by them are barred by the provisions of Section 43 of the Civil Procedure Code, although the four suits, as I have already said, were instituted on one and the same day.

(3.) Now in the first place, this objection was not taken in any of the written statements filed on behalf of the defendants and was not raised until after suit No. 268 had been decided. This latter suit was decided on the 8 of August 1906, and the objection was not raised until the 6 of Sept ember of that year. Then again, having regard to the nature of the suit, I do not think that Section 43 of the Civil Procedure Code is applicable. Suit No. 268 was brought as I have said, for recovery of possession of the holding on the ground that it had been mortgaged by the tenant without the consent of the landlord. The cause of action in respect of that holding arose on the day the mortgage was executed, that is, on the 10 of April 1897, and the landlord would have had a right to recover possession of that holding if she had chosen to do so, even before the redemption of the mortgage. Similarly the cause of action in suit No. 269, in respect of the holding which was purchased by the mortgagees on that date, arose on that date, and if the landlord had chosen to sue for possession of these holdings he would have had to bring two suits, one in respect of each holding. All that Section 43 of the Civil Procedure Code-says is that the plaintiff must include in the suit the whole claim arising out of the same cause of action, and that if he relinquishes a portion of that claim he cannot afterwards bring a separate suit in respect of it. It does not say that two causes of action must be included in the same suit. The holding which form the subject-matter of suit No. 271 was not purchased until the 8 of May 1897, and the cause of action for possession of that holding could under no circumstances be said to have arisen before the transfer of that holding. Although no doubt in the opinion of the Courts below the plaintiff bad not succeeded in substantiating his right upon the first branch of his case founded upon the allegation of unauthorised transfer, still that was the case of the plaintiff and was the case which he insisted upon when he went to trial in these suits. And the test to apply, in order to see whether Section 43 of the Civil Procedure Code bars a particular suit or not, is to have regard to the nature of the suit as laid in the plaint and not to the case which the plaintiff ultimately succeeds in proving because Section 43 of the Civil Procedure Code is in bar of a trial and it is no use in applying that bar after the trial is finished. Moreover, it seems to me, that Section 43 of the Civil Procedure Code would not be applicable to the suits based on the alternative grounds because the facts which together constitute the cause of action in each of three suits are not precisely the same. I think, therefore, that Section 43 of the Civil Procedure Code does not apply to these suits.