SHEOKUMAR SINGH Vs. BECHAN SINGH

JUDGEMENT

(1.) This appeal, which originally came up for hearing before my learned brother was referred to by him to a Division Bench. The relevant facts are briefly these: One Muneshwar Singh had about five bighas of land. On 13 January 1930, he executed three sale deeds in respect of all these lands, one for Rs. 600, another for Rs. 200 and the third for Rs. 300 in favour of defendants 1 to 4. Muneshwar died on 19 January 1930. In 1933 the plaintiffs, claiming to be his next heirs, brought a suit to set aside two of the sale deeds, namely those for Rs. 600 and Rs. 200 and to recover possession of the properties covered by them on the allegation that they were executed without consideration and under the undue influence of defendants 1 to 4. From that suit however one plot No. 623 covered by the sale deed of Rs. 600 was omitted. The suit was decreed. Thereafter in 1935 the plaintiffs brought the present suit to set aside the sale deed for Rs. 300 substantially on the allegation that it was executed without consideration and under undue influence, and with a prayer for confirmation or, in the alternative, recovery of possession over the properties covered by this sale deed as also plot No. 623 which had been omitted from the previous suit.

(2.) Defendant 5 was impleaded as a subsequent transferee from defendants 1 to 4 under a zarpeshgi deed. The suit was defended on various grounds, one of them being that it was barred under the provisions of Order 2, Rule 2, Civil P.C. The Munsif who tried the suit found that the sale deed in question was executed under undue influence and without consideration; but he dismissed the suit, holding that it was barred under under Order 2, Rule 2, not only in regard to plot No. 623 but also with regard to the lands covered by the sale deed for Rs. 300. In the plaint it was alleged that the plaintiff's were in possession of the disputed lands but were obliged to bring the suit as the defendants had threatened to interfere with their possession.

(3.) The Munsif found that this allegation was altogether false and the plaintiffs were never in possession of the lands. On appeal the findings of fact of the Munsif do not appear to have been challenged and the only question which was raised before the Subordinate Judge was whether the suit was barred under Order 2, Rule 2. He concurred with the Munsif so far as plot No. 623 was concerned; but with regard to the lands covered by the sale deed for Rs. 300 he came to a different finding and, reversing the Munsif's decision, passed a decree in favour of the plaintiffs. Hence this second appeal by the defendants. The only question for decision in this appeal is whether the plaintiffs claim with regard to the lands covered by the sale deed for Rs. 300 is barred under Order 2, Rule 2. That rule 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; but if he omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.