Konakanchi Kesava Nurayana and Another vs Obulareddigari venkatamma and Others

Umamaheshwaram, J.—This appeal raises a simple question of Jaw. The 1st Plaintiff is the daughter''s son of Kesavamurthy, who died possessed of all the plaint scheduled properties. On his death, the properties devolved upon his widow Krishnamma and she sold the suit properties to her brother Aswathamayya under a registered sale deed marked as Exhibit B-l, dated 8th August, 1919. During her lifetime, her daughter Annapurnamma, a minor-represented by her husband, filed O.S. No. 72 of 1925 on the file of the District Munsifs'' Court, Gooty, for, a declaration that the sale deed executed by her mother was not valid and binding as it was not supported by legal necessity. The suit was dismissed for default on 14th June, 1920. Annapurnamma died during the lifetime of Krishnamma. After the death of Krishnamma on 16th Amc, 1947, O.S. No. 226 of 1949 was filed in the J Ttstyef, Munsif''s Court, Nandyal, for recovery of possession from the alienees from Aswathamayya. The District Munsif of, Dhone, to whom the suit was transferred, held that the alienation was not valid and binding as it was not supported by legal necessity. On the question of resjudicata and the bar of Order 9. Rule 9, CPC Code, pleaded by the Defendants, the District Munsif held that file terms of Section 11 did not apply and: that Order 9. Rule 9, did not bar the present suit. On appeal, the Subordinate Judge of Kurnool continued the finding of the District Munsif on the merits and found that the alienation by the widow fn favour of the brother was not valid and binding. He however, held that the order passed on 14th June. 1926, operated as a b"r under Order 9, Rule 9, CPC Code, as also u/s 11 CPC and dismissed the suit in respect of items 3 to 5. No appeal having been preferred by the 6th Defendant in respect of items-1 and 2 purchased by him, the second appeal by the Plaintiff is confined only to items 3, 4 and 5 in the possession of Defendants 2 to 5 and 7.

Sri Bhujanga Rao, the learned advocate for the Appellants, contends that the view of the Subordinate Judge on the applicability of Section 11 and Order 9. Rule 9, CPC Code, is erroneous. A plain reading of the terms of Section 11 makes it clear that the section has no application when the prior suit was dismissed for default. The bar of Section 11, CPC Code, applies only when the previous suit was heard and finally decided. As the previous suit was dismissed under Order 9. Rule 8, CPC I fail to see how the terms of Section 11 apply at all, it is unnecessary to set out any authority for this proposition. It is sufficient to refer to a passage from the judgment of Lord Watson in Mt. Channd Kaur v. Pnitab Singh, ILK 16 Cal 98

The dismissal of a suit in terms of Section 102 (corresponding to Order 9, Rule 8, Code of Civil Procedure) was plainly not intended to operate in favour of the Defendant as res judicata.

The decisions relied upefti by the Subordinate Judge, Varamma v. Gopaladasayya, ILR 41 Mad 659 : AIR 1919 Mad 911, and Villuri Jagannadham Naidu Vs. Ch. Rama Rao, Sanitary Inspector, (C), have really no bearing on this question: Sri Chinnappa Reddi, the learned advocate for the Respondent, rightly refrained from supporting the judgment of the Court below on this ground.

The next question that arises for consideration is whether the view of the Subordinate Judge that the terms of Order 9, Rule 9, operate as a bar is correct. Order 9, Rule 9, in so far as it is relevant runs as follows:

Where a suit is wholly or partly dismissed under Rule 8, the Plaintiff shall he preclude from bringing a fresh suit in respect of the same cause of action.

The suit which was instituted by Annapurnrunma, the mother of the 1st Plaintiff, was a declaratory suit in a representative capacity. The cause of action was to remove the cloud on the title to the estate by reason of the alienation effected by her mother. The cause of action on which the present suit is based is that on the death of the grandmother, the 1st Plaintiff is entitled to recover possession of his grandfather''s properties. In N. Jani-kamma v. Matta Reddi, AIR 1956 AP 141 I pointed out at page 242 (of Andhra W.R.): (at p. 155 of AIR) that the right to recover possession on the death of the widow is quite distinct and different from the cause of action conferred on the presumptive reversioner u/s 42 of the Specific Relief Act to obtain a declaratory decree that the adoption is invalid. Subba Rao, C. J., also took the same view on this question and held at page 235 (of Andhra W.R.): (at p. 151 of AIR), that a reversioner is entitled to ignore an adoption as a nullity and file a suit for possession after the death of the widow. The decision of the Madias High Court in Asia Bivi v. Mohamed Rowther, 39 Mad LJ 412 : AIR 1920 Mad 710 is in point. It was held that a suit dismissed for default under Order 9. Rule 8, CPC Code, does not operate as res judicata for any subsequent suit. It was further held that the cause of action for a suit for declaration of title to property is different from the cause of action for a suit for possession. The suit for declaration of title was filed on the footing that the Plaintiff was in joint possession along with others while the subsequent suit was filed for partition and separate possession.

U Applying the reasoning of that case to the facts of the present case, I have no doubt that the cause ''" i"hichJaas, accrued to the 1st Plaintiff on the death of his grandmother for recovery of possession is distinct and different from the cause of action on which his mother sued in O.S. No. 72 of 1925. The decision of the Privy Council in AIR 1949 78 (Privy Council) relied on by Sri Chinnapa Reddi has no application to the facts of the present case. As pointed out bv Sir Madhavan Nair at page 327 (of Mad LJ): (at p. 84 of AIR

What would constitute the cause of action in a suit must always depend on the particular facts of the case.

It is, therefore, unnecessary for me to discuss or set out the several propositions summarised by him at page 328 (of Mad LJ): (at Pp. 85-8G of AIR) for the purpose of deciding this case. Bearing those principles in mind, I have no doubt whatsoever that the causes of action for the two suits are not the same, but are different. In this view, the decree of the lower Appellate Court is set aside and the decree of the trial Court is restored with costs throughout. No leave.