Babu Reddy and other vs Girija Bai and others

Sengottuvelan, J.—This second Appeal is filed by the Defendants 2 to 4 in the suit O.S.No. 657 of 1974 on the file of the District Munsif of Arani challenging the legality and correctness of the judgment of the District Judge of North Arcot at Vellore in A.S. No. 310 of 1976. The facts of the case are briefly as follows: The first respondent herein, represented by her Power of Attorney Agent one Sundara Reddy filed the suit O.S. No. 657 of 1974 against the appellants herein who are arrayed as defendants 2 to 4 and tour others for a declaration at title to suit properties and for an injunction restraining the appellants and the other defendants from interfering with her possession or in the alternative for delivery of possession of the suit properties and for damages to the tune of Rs. 100 being the value of the trees cut by the appellants and the other four defendants.

The material allegations set out in the plaint are as follows:- One Guruswamy Reddy, the paternal grand father of the first respondent, had ancestral properties in the villages of Badur. Aipakkam, Kalpattu and other villages. He died 30 years ago leaving behind him his only son Jayarama Reddy through his second wife. He son through the first wife, namely, Ramalinga Reddy separated from the family, even during his father''s life time and went out of the family. After the death of Guruswamy Reddy Jayarama as the sole surviving member. Jayarama Reddy died. Reddy succeeded to the entire properties possessed of the said items of properties in 1954 without any male issue and leaving his widow Venkatalakshmi Ammal and his only daughter the first respondent herein Venkatalakshmi Ammal being the widow of the Jayarama Reddy became entitled to all the properties under the Hindu Women''s Right to Property Act 1938 and she was in absolute possession and enjoyment of the same. She became an absolute owner under the Hindu Succession Act; 1956 in respect of the entire properties. She executed a registered will dated 29-12-1960, marked as Ex.A3 in the suit, in favour of the only daughter the first respondent herein a sound and disposing state of mind. The said Venkatalakshmi Ammal died in the year 1961. On her death the first respondent herein, viz., the plaintiff in the suit, became the sole owner of properties both under the will Ex.A3 as well as by inheritance. The rights of the mother of the first respondent viz., Venkatalakshmi Ammal, were disputed on the ground that late Jayarama Reddy left a will, a registration copy of which is marked as Ex.B2. So the first respondent herein through her next friend filed O.S. No. 117 of 1962 on the file of the District Munsif of Arani against the 5th defendant Perumal Reddy (3rd respondent herein) and his brother Balakrishna Reddy who claimed rights to the properties under the above said Will Ex.B2, The District Munsif, Arani, dismissed the Suit O.S. No. 117 of 1962 filed by the respondent herein and on appeal in A.S. No. 132 of 1964 the Subordinate Judge of Vellore set aside the judgment of the trial court and upheld the claim of the first, respondent in respect of the properties of late Jayarama Reddy. The said judgment of the learned Subordinate Judge in A.S. No. 132 of 1964 was confirmed by this Court in S.A. No. 1360 of 1965. The said judgment has become final and the fact that the first respondent is entitled to the entire properties left by Venkatalakshmi Ammal has been established. Defendant 5 to 7 in the suit joining hands with the defendants 1 to 4 brought about a document purported to be a sale deed, dated 3-3-1974, a registration copy of which is marked as Ex.A7, in favour of the appellants, 2 and 3 herein through, their guardian, the first appellant for Rs. 13,000 in respect of the nit properties. The said sale is a fraudulent one brought about to coerce the first respondent to abandon the fruits of the decree obtained in the earlier suit O.S. No. 117 of 1962. The defendants 1 to 4 cut the tree to the value of Rs. 1400. Hence the first respondent claimed the relief of declaration and injunction against the appellants or in the alternative prayed for the relief of possession in case the court finds that the appellants are in possession of the properties.

The case of the appellants herein, the defendants 2 to 4 in the suit, is that the suit properties were bequeathed to one Duraiswamy Reddy and as per the arrangement made by late Jayarama Reddy the 5th defendant viz, the 3rd respondent herein and his family members got the properties. The appellants are in enjoyment of the suit properties by virtue of the sale deed in their favour. The suit is barred by limitation since the defendants had been in enjoyment of the suit properties for a period of 12 years prior to the Hiding of the suit. The cutting of the trees were denied.

In the written statement filed by the 5th defendant/Perumal Reddy (3rd Respondent herein) the status of Sundara Reddy, the power of attorney agent of the first respondent herein, is disputed. The suit properties were the absolute properties of Perumal Reddy and his father and nobody else is entitled to any right in the same. When Perumal Reddy was not in his senses the suit O.S. No. 117 of 1962 was filed against him and reliefs obtained behind his back. In any event the third respondent herein has perfected title to the suit properties by adverse possession.

Respondents 4 and 5 viz., defendants 6 and 7, in their written statement denied the theory of management of the properties by the 5th defendant/3rd respondent herein, on behalf of the first respondent. They also claimed adverse possession in the suit properties.

Appellants herein as well as the respondents 2 to 5 in their written statement denied the fact that the first respondent is the daughter of late Jayarama Reddy and Venkatalakshmi Ammal.

As many as 16 issues were framed on the above pleadings by the trial Court and the following findings were rendered in respect of the said issues. The trial Court after considering the evidence let in viz., the birth register extract Ex.A2 and the evidence of P.W.2, an attestor of Ex.A3, came to the conclusion that the first respondent is the daughter of Jayarama Reddy and Venkatalakshmi Ammal. The trial Court also found that Sundara Reddy is the Power of Attorney Agent of the first respondent, that the Will Ex.A3, executed by Venkatalakshmi Ammal in favour of the first respondent, had not been proved in accordance with law, but at the same time the first respondent succeeded to the suit properties as a heir of lat Venkatalakshmi Ammal: that the alleged Will Ex. B set up by the respondents 2 to 5 and the appellants is not true in view of the earlier findings; that Ex.B3, a registered sale deed executed by Jayarama Reddy, Perumal Reddy (3rd respondent herein) and his brother Balakrishna Reddy is a concocted document and hence the mortgage deeds Exs.B4 and B5 are false documents; that the respondents 2 to 5 herein had failed to prove that they got title to the suit properties, and that Perumal Reddy was in management of the suit properties on behalf of the first respondent. The trial Court after discussing the evidence regarding possession also came to the conclusion that the third respondent herein was in possession of the properties only on behalf of the first respondent and negatived the plea of adverse possession set up by the respondents 2 to 5.

In so far as the plea under Order 2, R.2 C.P.C. is concerned the trial Court found that the cause of action in the previous suit O.S. No. 117 of 1962 and in the present suit are different and hence the present suit is not barred under the provisions contained in Order 2, R.2 C.P.C. Regarding the trees cut, the trial Court found that the trees to the value of Rs. 120/- had been cut and granted decree for Rs. 120.

As against the said judgment the appellants herein filed A.S. No. 310 of 1976 on the file of the District Judge of North Arcot at Vellore and the learned District Judge after considering the evidence and the judgement of the trial court, confirmed the findings of the trial court and dismissed the appeal. This second appeal is filed challenging the legality and correctness of the judgment of the learned District Judge, North Arcot at Vellore, rendered in A.S. No. 310 of 1976.

The first contention of Mr. E. Padmanabhan, learned Advocate for the appellants, relates to the legal plea of the maintainability of the suit in view of the provisions contained in Order 2, Rule 2 C.P.C. His contention is that the reliefs asked for in the present suit ought to have been asked for in the previous suit O.S. No. 117 of 1962 and the first respondent not having prayed for the said reliefs in the previous suit is debarred from filing the present suit in view of the provisions contained in Order 2, Rule 2 C.P.C. Order 2, Rule 2 reads as follows:-

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Where a plaintiff 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.

(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation�For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligations shall be deemed respectively to constitute but one cause of action.

Learned counsel for the appellants also relied upon several decisions in support of his plea that the present suit is barred in view of the provisions contained in O.2, R. 2 C.P.C. In the case reported in R. Venkatanarasimham Vs. K. Subba Reddi and Others, an earlier suit for the relief of possession filed on the basis of an agreement by the previous owner was decreed negativing the will propounded by the defendants predecessor-in-title. A subsequent suit against the same defendant in respect of one item of immovable property which was not the subject matter of the Will in the earlier suit was dismissed in view of the provisions contained in O. 2, R.2 C.P.C. The learned single Judge took the view that the cause of action in both the suits was wrongful detention by the defendant of property which belonged to the plaintiff on the death of the predecessor-in-title and the fact that in the earlier suit a declaration was prayed for in respect of the will left by the predecessor-in-title would not make any difference as it was not necessary for the plaintiff to do so as it was really anticipating the defence of the defendant. The learned Judge held that the claim of the plaintiff in the second suit is barred by O. 2, R.2 C.P.C. as the relief could have been asked in the previous suit. In the case reported in Budhu Vs. Nahru and Others, the judicial Commissioner of Himachal Pradesh held that where the plaintiff filed the suit for ejectment of the defendants who were in possession of the entire are it of two khasra numbers, but the suit was restricted to a part of the area, a subsequent suit filed by the plaintiff in respect of the remaining portion is barred in view of the provisions contained in O.2, R.2 C.P.C. on the ground that there was only one cause of action because the defendants were in possession over the entire area. In the case reported in Union of India v. P.V. Jagannath Rao AIR 1968 Madhya Pradesh 204 a Division Bench of the Madhya Pradesh High Court held that in view of the earlier suit for declaration that the order for termination of plaintiff''s services was invalid and void, the claim for arrears of salary which had accrued due till the in a subsequent suit was held to be barred under Order 2, R.2. In the case reported in Md. Khalil Khan v. Mahbub Ali Mian 61 L.W. 686 (P.C.) = AIR 1949 Privy Council 48, it has been held that where the facts which would entitle the plaintiffs, in their new suit to recover property Y, to establish their title are substantially the same as those alleged in their former suit to recover property X, the causes of action in the two suits are identical and the plaintiffs are barred by reason of Order 2, R.2 from maintaining the new suit.

As against these decisions, on behalf of the respondents, reliance is placed upon the following cases:- In the case reported in Gurbux Singh v. Bhooralal 1964 11 M.L.J. 588 , it has been held that a plea of a bar under Order 2, R.2, Civil Procedure Code, can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits and in the present case the plaint in the previous suit had not been filed before the lower Court and hence the plea of bar under Order 2, R. 2 is not sustainable. In the case reported in Kewal Singh Vs. Smt. Lajwanti, the Supreme Court held that an amendment by a landlord in a rent control petition inserting a ground which was given upon a prior occasion is maintainable and the same is not hit by the provisions contained in O.2 R.2, C.P.C.

On a consideration of the above decisions the following principles regarding the application of the provisions of O.2, R.2 are evident:- In order to apply the provisions of O.2, R.2 C.P.C. it must be found as to what was the cause of action in respect of which the claim was made in the previous suit; what is the cause of action in respect of the claim made in the subsequent suit and whether the claim made in the subsequent suit could have been made either wholly or in part in the previous suit. If so, the claim in the subsequent suit shall fail to the extent to which it could have been, but was not made in the previous suit. The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the Court. Bearing the above principles in mind we will to decide whether the present suit is barred under O.2. R.2, C.P.C.

Under the provisions contained in O.2 R.2, C.P.C., the plaintiff can be non suited only on proper grounds and on proper proof of the cause of action mentioned in the earlier suit. In this case the plaint in the earlier suit O.S. 117 of 1962 is not even filed. In the absence of filing of the plaint it is not possible to ascertain what exactly the cause of action is in the previous suit. Mr. E. Padmanabhan, learned Advocate for the appellants, produced a typed copy of the plaint in the previous suit O.S. No. 117 of 1962 during the course of his argument. Since the correctness of the copy is not disputed the same looked into to ascertain whether the causes of action in both the suits are the same. The previous suit is one filed by the first respondent against Perumal Reddy, the third respondent herein, and one Balakrishna Reddy for declaration in respect of the properties situate in Athiyanur Village. The cause of action para 11 in the plaint in O.S. No. 117 of 1962 reads as follows:� The cause of action arose on December, 1961 at Athiyanur, Wandiwash Taluk when the defendants began to interfere with plaintiff''s possession within the jurisdiction of this Honourable Court.

The present suit O.S. No. 657 of 1974 is with reference to the properties comprised in Aipakkam Village. The cause of action for the present suit as set out in the plaint is as follows:�

The cause of action arose in 1960 when plaintiffs mother executed a will and in 1961 when Venkatalakshmi Ammal died and in 1965 and 1969 when the rights of plaintiff were fully established by Court of law at Aipakkam Village in Wandiwash Taluk within the jurisdiction of this Honourable Court.

On a reading of the allegation in the two plaints it is seen that in the first plaint the cause of action is a mere attempt to trespass whereas the cause of action in the subsequent suit is side to have arisen in 1960 when Venkatalakshmi Ammal executed the Will Ex.A3, and on account of the denial of rights which are fully established in the Court of laws. Thus, the prior cause of action is only a trespass whereas the subsequent cause of action is based upon the rights flowing from the will and denial of title. Since both the causes of action are not one and the same and the relief asked for in the subsequent suit could not have been asked for in the previous suit on the plaint allegations in the previous suit, the earlier suit cannot bar the subsequent suit. Hence the first contention of the appellants based upon Order 2, R.2 C.P.C. will have to be negatived.

The second contention raised on behalf of the appellants is one of adverse possession. But in order to constitute adverse possession the necessary elements relating to the same ought to have been proved. The first thing is that there must be relative animus on the person who is in possession to the knowledge of the other party. In this case in any event the possession of the appellants who are in the position of co-owners cannot be said to be adverse unless the necessary elements are made out. There is no material on which it can be concluded that the possession of the appellants is adverse to that of the first respondent. Hence I have no hesitation in negativing the plea of adverse possession also. In the result the second appeal fails and is dismissed. There will be no order as to costs.