Naganada Aiyar alias Eswarapier vs Krishnamurti Aiyar and Others

Abdur Rahim, J.—This appeal is by the plaintiff in Original Suit No. 61 of 1903 against the judgment of the Subordinate Judge of

Kumbakonam dismissing the suit. One of the grounds, on which the learned Judge proceeded was that the present suit was not maintainable by

reason of Original Suit No. 7 of 1892, instituted by the plaintiff against one Srinivasa Aiyar, predecessor in title of the present defendants, having

been dismissed by the Subordinate Judge of Negapatam on the 1st November, 1892. He holds that the previous suit was disposed of under

Sections 157 and 102, CPC of 1882, and the bar arises by reason of Section 103, CPC of 1882. But the learned vakil for the 74th defendant

urges that the first suit was decided u/s 158 of the Code, and the present suit is, therefore, barred on the ground of res judicata. The contention on

behalf the appellant is that the dismissal of the previous suit was u/s 102, as held by the Court below, but that the causes of action in the two suits

were not the same. If the plea in bar either u/s 103, or by reason of res judicata is sustainable, it would be unnecessary to go into the question of

limitation, the only other question raised in the appeal.

The property, to which both the suits relate, consists of certain villages, In the plaint in the suit of 1892 it is alleged that the villages belonged to

one Narayanaswami Aiyar, senior paternal uncle of the plaintiff, that he died about twenty-four years ago, and after his death the villages remained

in the enjoyment of Narayanaswami''s widow, Sallathammal, that, on Sellathammal''s death on the 30th August, 1891, the plaintiff became entitled

to, and came into possession of, all her properties, including the properties sued for, and that the plaintiff leased the latter properties to several

persons in September, 1891. It then goes on to allege that '''' on the strength of some opinion entertained by the revenue authorities, on an enquiry

made by them after the said Sellathammal''s death, the defendant, who has no claim, for the last one month entered upon the undermentioned

properties and has been causing disturbance. Besides, he has been causing disturbance to the plaintiff''s enjoyment in several ways by frightening

and intimidating the plaintiff''s lessees and by instituting criminal complaints, etc., against them,"" In the sixth paragraph of the plaint it is stated that

whatever might be the nature of the defendant''s claim, ho had no right whatever to wrongfully enter upon the property remaining in the plaintiff''s

possession."" And in the seventh paragraph the cause of action is alleged to arise in January, 1895, ""when the defendant began to cause obstruction

as against the plaintiff''s possession."" The relief prayed for is ""perpetual injunction restraining the defendant from interfering with the property

remaining in the plaintiff''s possession.

The defendant in that suit denied the plaintiff''s right to, and possession of the land in dispute, contending that the property belonged to one

Anapian, the father of Sitammal, that on his death without male issue, it devolved on his widow Parvathammal, and that on Parvathammal''s death

Sellathammal succeeded to the property. The defendant claimed that on Sellathammal''s death he inherited the property as the sister''s son of

Anapian. The three material issues framed in the case were (a) whether the property belonged to Narayanaswami, the husband of Salla-thammal,

(b) whether the succession devolved on the plaintiff after the death of Sellathammal and he has been in possession of the property since her death,

and (c) whether the plaintiff was entitled to obtain the injunction solely on the strength of his possession without making out title to the property.

The issues were settled on the 2nd April, 1892, and the case was fixed for final hearing on the 26th August, on which date the plaintiff applied for

an adjournment on the ground that he had not sufficient time to summon his witnesses, and the hearing was postponed to the 11th October. On the

11th October only two out of the twenty-four witnesses subpoonaed by the plaintiff appeared, but neither the plaintiff nor his pleader appeared on

that date. The Court having waited for some time, passed the following order: ""Prom the issues above mentioned it will be seen that the plaintiff''s

claim is completely denied by the defendants. I should therefore dismiss the plaintiff''s suit with costs."" An application was subsequently made u/s

103 of the CPC of 1882 to set aside the order of dismissal to the same Judge. He held that the dismissal must be considered to have been made

u/s 158 of the Code, inasmuch as the case had been adjourned in order to enable the plaintiff to produce his evidence, and he failed to do so, and

that therefore the plaintiff had no remedy u/s 103. It is to be noted that the Subordinate Judge does not state that he decided the suit on its merits,

which I think he could have done u/s 158. The other course open to him u/s 157 was to dismiss the suit u/s 102 of the Code on the ground that the

plaintiff failed to appear. The order dismissing the suit does not mention the section under which it was made. But on reading the order it would

appear to have been made u/s 102, read with Section 157, rather than u/s 158. The Subordinate Judge who heard the application u/s 103 seemed

to think that under the circumstances the suit could have been dealt with only u/s 158; but that is apparently a wrong view of the law. The plaintiff

did not appear at the adjourned hearing, and therefore the case fell within the terms of Section 157 [ Maharaja of Vizianagaram Vs. Lingam

Krishna Bhupati and Others, ]. I am also inclined to hold, as I have said, that the Subordinate Judge might have dealt with the case u/s 158, if he

chose to do so. The view taken in Shrimant Sagajirao v. S. Smith (1896) ILR 20 Bom. 738, however, seems to be that, where the plaintiff does

not appear, the suit cannot be decided u/s 158, even though time had been granted at his request for the purpose of producing evidence or

performing any other act necessary for the further progress of the suit. With great respect to the learned Judges who decided that case I am unable

to agree in their construction of Section 158

There is nothing in the language of that section which precludes its application to a case where the plaintiff does not appear.

Section 158 generally empowers the Court under the circumstances mentioned therein to decide the suit whether the party at whose instance the

adjournment was granted is present or not at the date fixed for hearing and the judgment in Shrimant Sagajiroo v. Smith ILR (1896) Bom. 736

does not give any reasons in support of a limited construction. It may, however, be that in such cases the Court ought ordinarily to deal with the

suit u/s 157 and not Section 158. u/s 158 the Court is required, if it chooses to act under it, to go into the questions raised in the action and to

decide them on such materials as may be before it. But, as I have said, so far as it appears from the order of the Subordinate Judge in the previous

suit, he did not consider the case on the merits, although the suit might have failed because of the inability of the plaintiff to support his allegations

by evidence.

The question, then, is whether the cause of action in the present suit is the same as that in the suit of 1892 within the meaning of Section 103. In

the plaint in the present suit, which is much fuller than the plaint in the other suit, the plaintiff states that the property originally belonged to Anaippier

who died in 1836, leaving him surviving his wife Parvathammal and his mother Ammalammal, that before his death Anaippier authorized his wife to

adopt a son, that after the death of Anaippier his widow gave birth to a posthumous child Sellathammal, and that in 1837 the widow adopted one

Ramasami. The property then vasted in Ramasami and Parvathammal looked after it as his guardian. Ramasami died in 1839 and the property

devolved on Parvathamml as his heir and she enjoyed the same till her death in 1841. Than it is alleged one Sundaram Aiyar obtained possession

of the property as guardian of Sellathammal, and that such possession was adverse to the rights of the proper heirs of Ramasami, and that

Sellathammal when she came of age continued in adverse possession and thus acquired a right as absolute owner.

Sellathammal died in 1891, her husband Narayanaswami having predeceased her in 1868. And the plaintiff says that he being a nephew of

Narayanaswami succeeded to the property on the death of Sellathammal, who had acquired an absolute right thereto by adverse possession, and

he further alleges, in the alternative, that the property was owned and possessed by Narayanaswami adversely to Sellathammal; and in this view of

the case also he is entitled to the property on the death of Narayana-swami''s widow Sallathammal. The plaint goes on to state that whatever right

Srinivasa Aiyar, the defendant in the previous suit and father of defendant Nos. 1, 2 and 3 in the present case, possessed in the suit properties was

extinguished by the adverse possession of Sellathammal and Narayanaswami Aiyar. It further states that the Government took possession of the

property probably as an escheat, but that eventually on certain misrepresentations being made by Srinivasa Aiyar, the predecessor-in-title of the

defendants, the Government wrongfully put Srinivasa Aiyar in possession of the property in December, 1891, which the plaintiff says is his cause of

action, The main relief he asks for is declaration of his title to these properties and recovery of possession. It will be noticed that in the plaint in the

previous suit allusion is made to the same order of the Government which is now alleged to be the cause of action. That order by which the plaintiff

was dispossessed in December, 1891 was passed before the institution of the previous suit. In the plaint in that suit ho admits that the defendant

had entered upon the land and was causing disturbance, but he claims that ha was in possession by reason of the fact that he had granted leases to

several parsons before the passing of the order by the Government. It is not now alleged that anything has transpired since the institution of the

previous suit in the nature of infraction of the plaintiff''s right. What appears to have been the case from the statements in the plaint in the previous

suit was, that soon after the death of Sellathammal there was the usual scramble for possession between the rival claimants, and that the authorities

supported the defendant''s claim, who, on the strength of their order, entered upon the possession of the properties; but the plaintiff claimed that he

was still in possession. His possession, however, had to be secured, and therefore he wanted a perpetual injunction against the defendant on the

ground that he was entitled to the property on the death of Sellathammal. Whatever rights he has now to the property accrued on the death of

Sellathammal by virtue of his relationship to her husband Narayanaswami, and it is the same right which is in dispute in the present action. No

doubt in the previous suit he alleged that the property belonged to Narayanaswami and that he inherited it on the death of his widow who was in

possession for 24 years after Narayanaswami''s death, while in the present suit he says that either the property belonged to Narayanaswami, he

having acquired it by adverse possession, or to his widow Sellathammal by virtue of adverse possession against the heirs of Anaippier, and that in

either case be succeeded the property on the death of Sellathammal

As I read the plaint, in the first suit, the cause of action then was the denial of the plaintiff''s right to the property accruing on the death of

Sellathammal and Srinivasa taking possession of the property on the strength of the order of the authorities, though be claimed that such order of

the Government and the action taken under it should not affect his title nor the possession he had by virtue of the leases. The main question then

was, did the plaintiff acquire a right to the property on Sellathammal''s death? And this is made clear by the issues framed in the case. It is true that

the relief which he asked for then was perpetual injunction, but ha could not have obtained that relief unless he was able to establish his title. As

observed by their Lordships of the Privy Council, the cause of action has no relation to the character of the relief prayed for by the plaintiff, any

more than to the defence which may be set up by the defendants. See Chand Kour v. Partab Singh ILR (1889) Cal. 98. It has been urged by the

learned vakil for the plaintiff that it is not open to us in this connection to travel outside the four corners of the plaint in order to ascertain what the

cause of action was in the previous suit, and he relies in support of this argument on the decision just referred to, where their Lordships observe

that the cause of action refers entirely to the grounds set forth in the plaint as the cause of action, or in other words to the media upon which the

plaintiff asked the Court to arrive at a conclusion in his favour. But these observations must be read in connection with the context in which they are

made, So read, they only mean that a cause of action is not governed by the nature of the defence which the defendant may set up, I do not think,

for instance, that their Lordships intended to lay down that we are precluded, in determining whether the cause of action in the two suits is the

same, from referring to issues which were raised in the first action for the purpose of finding out what the plaintiff had to prove and undertook to

prove in order to support his claim as alleged in his plaint. The plaint in the suit of 1892 is extremely concise and vague, and it becomes necessary

for the purpose of understanding the scope of that suit to refer to the issues. It has been argued with considerable emphasis that the plaintiff then

alleged that he was in possession of the property, although it may be that his allegation was false or founded on misconception. But the plaintiff also

alleged in that previous suit that he had a right to the property and that Srinivasa Aiyar in disturbing his possession purported to do so under some

claim of right. The suit was not a merely declaratory suit, nor based on mere possessory title, instituted under the special provisions of the Specific

Belief Act; the entire scope of the suit was to obtain a decision that the plaintiff succeeded to the property on the death of Sallathammal. The

plaintiff has in the present action merely varied the form of relief by asking for the recovery of possession instead of perpetual injunction, which

means much the same thing in substance. If the causes of action in the two suits are substantially the same, the mere differences in the form in which

they are stated or in the relief prayed for can make no difference in law. See Haji Hasam Ibrahim v. Mancharam Kaliandas ILR (1870) Bom. 137.

Otherwise a plaintiff who has allowed judgment to go against him by default could always get over the disability imposed by Section 103 of the

Code by simply manipulating the form of the plaint in a subsequent suit.

It is next argued that in the present suit the plaintiff''s case is that the property belonged to Sellathammal or to her husband Narayanaswami,

while his case in the first suit was that it belonged to Narayanaswami, and it was not alleged then that it belonged to Sellathammal in absolute right.

In both the cases, whether the property belonged to Sellathammal absolutely or to Narayanaswami the plaintiff''s title to it is based on his

relationship to Narayanaswami and arose on the death of Sellathammal. The medial therefore, in the language of the Privy Council on which the

plaintiff in either case asks the Court to arrive at a conclusion in his favour is succession to the property in question on the death of Sellathammal

and the denial of such right by Srinivasa Aiyar, the defendant, or his representatives in title. I may refer to a case in Woomatara Debea v.

Kristokaminee Dassee (1872) 18 W.R. 163, where the Judicial Committee of the Privy Council had to construe the phrase ""cause of action"" as

used in Section 2 of the CPC of 1859. The observations made in that case seem to bear closely on the facts of this case. There the plaintiff had in

a former suit admitted that no portion of the land then sued for was included in the limits of a taluk as originally settled and defined by the down,

but that she'' had as taluqdar of that taluq acquired title to it as towfeer, i.e., by gradual squatting or encroachment. It was held in the suit

subsequently brought by her that she could not claim to fall back upon the title to the land as included within the limits of her taluq. Their Lordships

observe ""the first question that occurs to their Lordships upon that section is what is meant by the cause of action. And in the present case they are

clearly of opinion that the cause of action was the dispossession of the defendant by the fixing of the boundary that is now complained of and the''

other proceeding in the Act IV case. The result of these proceedings was to affirm the possession of the defendants in the land which was the

subject of the first suit and to leave the party who felt aggrieved by them to her remedy by a civil suit."" Then they go on to say ""Now it is perfectly

clear to their Lordships upon the proceedings that the real question in issue to be determined between the parties than was whether the lands then

sued for which included the lands now sued for belonged as of right to the taluqdar, or whether they fell within lot 32 which belonged to the

defendants. And it was open to the plaintiff, the present appellant, in the former suit, to shape her title in either of three ways. She might have said,

as she did say, according be Mr. Doyne''s argument to-day, that the whole of the land then claimed was towfeer land; or she might have said a

portion of the land fell within the taluq, as originally settled and formed part of the 7,000 and odd bighas mentioned in the dowl and the residue of it

is towfeer land; o,r she might have put her case in the alternative and have said that she had a good title to a portion as her original land, but that,

should the proof of that fail, that portion also was to be considered as to wfeer land."" With the full knowledge of all the circumstances she chose to

say, '' I admit that I am in possession of all that I was entitled to under the dowl, but I claim this land, the whole of it as towfeer land.'' The

contention now is that although she saw fit to take that course, then, she has now a right to fall back upon the other title, and to say: The boundary

was improperly drawn so as to include in the defendant''s holding that which of right should have been within my originally settled taluq; and as I

now claim in that way that which I might have claimed in the former suit, I am not precluded from bringing this second suit. It appears to their

Lordships that that contention cannot prevail against the clear terms of the section in question, or indeed upon principle."" Section 2 of Act VIII of

1859 on which the question arose was in these terms: ""The Civil Courts shall not take cognizance of any suit on a cause of action which shall have

bean heard and determined by a Court of competent jurisdiction between the same parties or the parties under whom they claim."" That lays down

a narrower principle of res judicata than Section 13 of the Code of 1882; while the disability imposed by Section 2 of Act VIII of 1859 seems to

be the same as that laid down by Section 103 of the Code of 1882 which precludes a second suit being brought on the same cause of'' action as in

the first suit, even though the first suit was dismissed for default of the plaintiff and not heard and determined. In the present ease therefore the

subject of inquiry is the same as was in the ease in Woomatara Debea v. Kristokaminee Dassee (1872) 18 W.R. 163, viz., the identity of the

cause of action. Thus, to adopt the language of the Privy Council, it can make no difference in principle how the present plaintiff shaped his title if

he was in a position at the time of the suit of 1892 to base his claim on two alternative titles which he has put forward in the present suit. Though

Section 13 is not applicable to this case as the previous suit was not heard and finally decided within the meaning of that section, I think Section 42

and Section 43 are clearly applicable. Section 42 lays down that every suit shall, as far as practicable, be so framed as to afford ground for a final

decision upon the subject in dispute and so to prevent further litigation concerning them. The real subject of dispute in this case was the title of the

plaintiff to the property in question which accrued on the death of Sellathammal, and the plaintiff ought to have put forward the two alternative sets

of facts which are now alleged in support of that title and which existed at the time of the previous action. What led the plaintiff to come to Court

then as now was the order of the Government on the strength of which Srinivasa Aiyar obtained possession of the land and the denial of the

plaintiff''s title thereto by Srinivasa Aiyar. Section 43 lays down that the whole of the plaintiff''s claim should be included and he must ask for all the

remedies to which he may be entitled in respect of the same cause of action. One test, it seems to me, which may be usefully applied in order to

see whether the causes of action are the same, is whether the sections 44, 45, 46 and 47 of the Code which relate to joining causes of action

would have any application to such a case as this. To"" my mind it is obvious that they would not. I may also refer to the case of Moonshee Buzloor

Ruheem v. Shumsoonnissa Begum and Jodonath Bose v. Shumsoonnissa Begum (1867) 11 M.I.A. 551. There the question for consideration was

whether the claim in the new suit was in fact founded upon a cause of action distinct from that which was the foundation of the former suit. The

cause of action in the former suit of the respondent in the appeal before their Lordships of the Judicial Committee was a refusal by her husband, the

appellant, to restore, or his misappropriation of, the wife''s property which she says she entrusted to him. The property sought to be recovered in

the second suit was a particular Company''s paper which, along with other property the subject of the first suit, was deposited with the husband.

This Company''s paper not having been sued for in the first action, it was held that the plaintiff could not recover it in the new suit. The cause of

action in both the suits was one and the same conversion.

None of the cases cited by the learned vakil for the appellant has, it seems to me, any bearing on this case. In Pittapur Raja v. Suriya Rau ILR

(1885) Mad. 520 the claim involved in the second suit in respect of the personality had not arisen at the time of the former suit. In Ramaswami

Aiyar v. Vythinatha Aiyar ILR (1903) Mad. 760 the two suits related to two distinct mortgages, and as it is pointed out in Thrikaikat Madathil

Raman v. Thiruthiyil Krishnen Nair and Ors. ILR (1906) Mad 153, the cause of action in Ramaswami Aiyar v. Vythinatha Aiyar ILR (1903) Mad.

760 arose out of two distinct contracts. In Jibunti Nathkhun v. Sahib Nath Chukerbuity ILR (1882) Cal. 819 the previous suit, which was one for

declaration of title to and confirmation of possession of certain land, had been dismissed on the ground that the plaintiff was not in possession at the

time of filing the suit and his title was not adjudicated upon. It was held that a subsequent suit for recovery of possession on the same title Was not

barred u/s 43 because the causes of action were different As the learned Judges point out, the previous suit was one of a declaratory nature, and

the plaintiff could not then have asked for anything more on his allegations in the plaint, and after the previous suit there had been an active

disturbance of the plaintiff''s possession. But if the Court in that case had found against the plaintiff both on the question of title and of possession,

be could not have subsequently brought another suit on the basis of his title, although his first suit was liable to be dismissed on the question as to

possession alone being determined against him. See Peary Mohun Mukerjee v. Ambica Churn Bandopadhya ILR (1897) Cal. 900. So if the cause

of action in the present case was the denial of the plaintiff''s title to the land by succession to Sellathammal and the disturbance of his possession by

Srinivasa Aiyar, it would not be open to the plaintiff to say that if he had prosecuted the suit and it was found that he was not in possession, then on

that ground alone his suit might have been--though I do not think it would have been--dismissed.

I am therefore of opinion that the judgment of the Lower Court on this point is right and that the appeal must be dismissed with costs.

Munro, J.

I concur.