SHIBBA Vs. DALPAT

JUDGEMENT

(1.) THIS was a suit to recover possession of two rooms and some other premises which are alleged in the plaint to bear the house No. 396 inside an enclosure No. 2.02. It appears that in 1896 the enclosure with the buildings was partitioned between the plaintiffs and the defendants, and a number of other persons who were entitled. The partition led to a great deal of confusion, and there has been a great deal of litigation not only between the plaintiffs and defendants, but also between other persons entitled. There is no doubt now that what fell to the lot of the plaintiffs was No. 396 in the partition map. In the year 1898, shortly after the partition, the present plaintiffs sued the present defendants for possession of two corners, which are part of No. 396. The plaintiffs did not sue in 1898 for that portion of No. 396, which they now sue for. The plaintiffs alleged in their claim that they had been dispossessed of the premises now sued for some years ago. The Court below finds that in the year 1898 when the prior suit was instituted the plaintiffs were not in possession of the premises winch they now seek to recover. It would really appear that the meaning of the partition is only gradually becoming clear, and each owner has been suing to recover what was allotted to him or them. The only point argued on behalf of the appellants is that the suit is barred by the provisions of Section 43 of Act XIV of 1882. That section provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, and if the plaintiff omits to sue in respect of, or intentionally relinquishes any portion, he shall not afterwards sue in respect of the portion so omitted or relinquished. It is perfectly clear that but for the provisions of this section the plaintiffs are entitled to recover possession of the premises claimed. The learned Additional Judge commences his judgment by saying "that this is a peculiar case. Under the circumstances of the case I will not allow Section 43 of the Civil P. C. to interfere with the justice of the case." I think that the application of the provisions of Section 43 to the present case would interfere with the justice of the case, but nevertheless if the section really does apply, the Court must deal with the case according to law, see the case of Moonshee Buzloor Ruheem V/s. Shumsoonnisa Begum 11 M.I.A. 557; 8 M.R. 3 (P.C.) at page 604. The lower appellate Court finds in effect that the plaintiffs did not know when they sued in 1898 that they were entitled to the property which they now seek to recover, and that they were under the impression that they were entitled to another part of the enclosure in possession of which they remained until they were ejected in 1907 at the instance of another party to the partition, and the respondents rely on the Privy Council ruling of Amanat Bibi V/s. Imdad Husain 15 C 800 at page 808 : 15 I.A. 106 Moreover, it appears to their Lordships that the fair result of the evidence is that at the date of the former suit the respondent was not aware of the right on which he is now insisting. A right, which a litigant possesses without knowing or ever having known that he possesses it, can hardly be regarded as a "portion of his claim" within the meaning of the section in question. The appellants contend that the Court ought not to draw any such inference, and reliance is placed upon the plaint in the litigation in 1898, and a map attached thereto. In my opinion the plaintiffs being prima facie entitled to recover possession of the premises it lay upon the defendants to bring the case within the provisions of Section 43 of Act XIV of 1882. The appellants contend that the case is so brought within the section by the mere finding of the Court that at the date of the prior litigation in 1898 the plaintiffs were not in possession of the particular portion of the premises which they now seek to recover. In my opinion under the peculiar circumstances of this case, this finding is not sufficient. In 1898 there was a real genuine dispute between the parties as to the corners which the plaintiffs then sought to recover. The defendants were then apparently honestly claiming to be entitled to the corners. The map attached to the plaint itself shows that there could be no dispute about the premises which are now sought to be recovered and which are defined. The corners were by no means so clearly defined and a bona fide dispute might well have arisen in respect of them. It is not shown that the defendants ever denied the plaintiffs title to the premises which the plaintiffs now seek to recover, while on the other hand it is clearly shown that the defendants did deny the title of the plaintiffs to the subject-matter of the dispute in 1898. The confusion, litigation and fights which took place after the partition explain the delay. Under these circumstances I do not think that the mere finding of the Court that the plaintiffs were not in actual possession of the premises in 1898 brings the case within the provisions of Section 43 of Act XIV of 1882. The defendants have not discharged the onus bringing the case within the provisions of that section. I accordingly dismiss the appeal with costs. Cross-objections are not pressed and are dismissed.