RAM CHARAN Vs. TULSHI RAM

JUDGEMENT

(1.) The first two defendants in the suit are the appellants in this second appeal. One Durga Prasad died possessed of certain properties movable and immovable. One of his houses is the bone of contention in this litigation. Durga Prasad died in June 1921. Before his death on 2 April, 1920 he executed a will which was subsequently registered on 5 May 1920. By this will he bequeathed his entire property in favour of his cousin defendant 3, Mt. Sunder Kuar. In his lifetime Durga Prasad brought a suit on 24 August 1920 to obtain the cancellation of a deed of gift alleged to have been executed by himself in favour of the present appellants Ram Charan and Ram Sarup who are brothers and are distant agnates of Durga Prasad. The ground on which that suit was brought was that Durga Prasad never executed the document, that by threats the two defendants in the suit had succeeded in obtaining his thumb-impression on a piece of blank paper and that by some stratagem and collusion with the Sub-Registrar, his admission to the execution of the deed of gift had been recorded as made by him on 5 May 1920 when he appeared before the Sub-Registrar. Durga Prasad having died during the pendency of the suit and his legal representative not having been brought on the record the suit was declared to have abated. Sunder Kuar sold the property in suit to the plaintiff and the plaintiff instituted the suit out of which this appeal has arisen for recovery of possession.

(2.) The defence in the suit was that Durga Prasad did execute a valid gift in favour of the defendants and put them in possession. The defendants challenged the validity of the will set up by the plaintiff in favour of Sunder Kuar. The learned District Judge found that the will was good and the gift was never executed by Durga Prasad. In this Court it has been contended that on the death of Durga Prasad his suit for the cancellation of the gift having abated, a second suit namely the present suit out of which this appeal has arisen, was not maintainable, in view of the enactment contained in the Civil Procedure Code Order 22, Rule 9. Order 22, Rule 9, Civil P.C., lays down as follows: Where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action.

(3.) The question that is before us, therefore, is whether the present suit has been brought on the same cause of action as the earlier suit brought by Durga Prasad.