Pachaiyammal and Another vs Velusami Kandanthaiyar

Raju, J.—The above second appeal has been filed by the defendants who are unsuccessful throughout before the courts below. The

respondents plaintiff filed O.S. No. 242 of 1978 on the file of the District Munsif Court, Vridhachalam, for declaration of Plaintiff''s title to the suit

properties and possession of the same and for recovery of mesne profits from the date of plaint till delivery of possession. The case of the plaintiff

before the courts below was that the suit properties and some other properties originally belonged to one Kandaswamy Kandanthayar, who died

intestate in the month of September, 1952 without leaving any issues, that after his death, the suit properties and other properties were enjoyed by

his wives viz., one Meenakshi and the 1st defendant herein as his legal heirs, and that the plaintiff is the son of abovesaid Kandasami

Kandathayar''s junior maternal aunt and after the death of the said person, the first defendant and the above Meenakshi Ammal were maintained

by the plaintiff and as a matter of fact, the plaintiff alone conducted the death ceremony of the abovesaid Kandasami Kandanthayar. The further

case of the plaintiff was that the first defendant and the above said Meenakshi Ammal executed a settlement deed on 27.10.1952 in favour of the

plaintiff in respect of the properties inherited through her husband and on the date of the settlement deed, the first defendant and Meenakshi Ammal

put the plaintiff also in possession of the suit property and the plaintiff also accepted the same and has been enjoying the properties mentioned in

the settlement deed by paying the kist, the other taxes etc. Subsequently, it is stated that two items of the properties mentioned in the settlement

deed were sold to one Pichamuthu Padayachi and the remaining properties were said to be in the enjoyment of the plaintiff openly, continuously

and uninterruptedly. The plaintiff thus claimed right and title to the properties by virtue of the said settlement deed and also by prescription. The

second defendant is said to be the sister''s daughter of the 1st defendant and Meenakshi Ammal. Since the defendants started creating problems by

manipulating as alloyed certain documents, the suit O.S. No.279 of 1975 came to be filed on the file of the District Munsif, Court, Vridhachalam

for declaration of plaintiff''s title over the suit properties and two other items, and for permanent injunction. By a judgment and decree dated

9.8.1976, the learned trial Judge decreed the suit by declaring title in respect of all the five items of the property, but confining the relief of

permanent injunction only to items 4 and 5 and rejected the claim for permanent injunction in respect of items 1 to 3 of the earlier suit schedule

properties. The defendants therein filed an appeal in A.S. No. 168 of 1976 on the file of the Sub Court, Chidambaram, and the learned first

Appellate Judge also dismissed the appeal by a judgment and decree dated 25.2.1978. But, since the plaintiff has been held to have title over the

suit properties, alleging commission of trespass during the last days in the month of May 1975, the plaintiff has filed the present suit for the relief as

noticed supra. It may be noticed at this stage that the properties which are the subject matter of the claim in the present suit are items 1 to 3 of the

suit schedule property in the earlier suit in respect of which the relief of permanent injunction came to be rejected, though declaration of title has

been granted.

The defendants, in their written statement, contested the claim contending that having regard to the proceedings initiated earlier, the plaintiff

cannot now ask for possession in respect of the suit properties. Reliance was placed by the defendants on Order 2, Rule 2 of the CPC to contend

that since the Plaintiff failed to include the whole of the claim to which he was entitled to make in respect of the suit properties even when he filed

O.S. No. 279 of 1975 and has omitted to ask for the relief of possession, the plaintiff is now precluded from filing a second suit for the relief of

possession. Objections were also raised on the tenability of the claim on merits.

On the above claims and counter claims, the suit came to the tried and oral and documentary evidence was adduced on the side of the plaintiff

and the defendants chose to remain content with marking of documents without tendering any oral evidence. On a consideration of the materials on

record, the learned trial Judge, by his judgment and decree dated 30.8.1979, held that the plaintiff had valid title to the suit properties by virtue of

the settlement deed dated 27.10.1952 marked as Ex. A-1 and that the defendant have not shown to have prescribed title to the suit properties by

adverse possession and consequently, the suit was maintainable particularly, since it was directed in the earlier suit that the plaintiff has to seek his

remedy of possession by appropriate proceedings or suit. To come to such a conclusion, the learned trial Judge placed reliance upon the printed

copy of the judgment in O.S. No. 277 of 1975 and marked Ex. A-2 in A.S. No. 77 of 1981 (originally A.S. No. 109 of 1979 on the file of the

Sub-Court, Chidambaram) and the learned Subordinate Judge also concurred with the findings of the learned trial Judge and while confirming the

judgment and decree of the learned trial Judge, the appeal filed by the defendants came to be dismissed by a judgment and decree dated

29.9.1981. Hence, the above second appeal.

At the time of admitting the second appeal, the learned Judge has formulated the substantial-question of law that was urged and found to arise in

the appeal, as to whether the suit was barred under Order 2, Rule 2 of the Code of Civil Procedure. Mr. K.A. Basheer Ahamed, learned Counsel

appearing for the appellants, while elaborating the above substantial question of law and inviting my attention to the relevant provisions of the Code

of Civil Procedure, contended that the courts below committed a grave error in coming to the conclusion that the suit was maintainable and

inasmuch as the plaintiff, who was the plaintiff in the earlier suit, could have asked for recovery of possession also, has failed to seek for such a

relief in the earlier suit and omitted to make a claim in respect of such relief is precluded by virtue of Order 2, Rule 2, C.P.C. from filing the present

suit for such a relief as has now been claimed in the present suit. The learned Counsel also invited my attention to the relevant findings in this regard

recorded by both the courts below to substantiate his claim.

The learned Counsel for the respondent adopted the reasons assigned by the courts below and contended that there was no point for

interference in this second appeal at the instance of the appellants.

I have carefully considered the submissions of the learned Counsel appearing for the appellants. Rule 2 of Order 2 of the CPC stipulates 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 a plaintiff may relinquish

any portion of his claim in order to bring the suit within the jurisdiction of any court and where a plaintiff omits to sue in respect of, or intentionally

relinquishes any portion of his claim he shall not after-wards sue in respect of the portion so omitted or relinquished. Sub-rule (3) of Rule 2 of

Order 2 provides that 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. So far as the case on hand

is concerned, it would be necessary to advert to the contents of the relief sought for and granted in the earlier proceedings which were marked as

evidence in the present case. Ex. A-2 is the printed copy of the judgment in O.S. No. 279 of 1975 and Ex. A-4 is the certified copy of the decree

in the said proceedings. It is seen that the earlier suit was filed for declaration and permanent injunction in respect of five items of the suit properties

of which the present suit items constitute items 1, 2 and 3. The learned trial Judge, in the earlier decision, declared that the plaintiff was entitled to

all the suit items of properties numbering about five but so far as the relief of permanent injunction is concerned, granted the relief only in respect of

items 4 and 5 and in other respects, the relief of permanent injunction sought for in respect of items 1 to 3 of the earlier suit came to be rejected.

As a matter of fact, in paragraph 12 of Ex. A-2 judgment, it was observed that the plaintiff who has allowed Meenakshi Ammal and the first

defendant to be in possession of the suit landed properties, items 1 to 3 in the earlier suit (suit schedule properties in the present suit) has to take

possession of the above said properties either by an arrangement with the defendants or through Court in accordance with law. As a matter of fact,

in Ex. A-3 which is the certified copy of the judgment in A.S. No. 168 of 1976 in the earlier proceedings, the learned first appellate Judge in

paragraph 13 of the judgment observed that the only argument of the learned Counsel for the appellants was that even in so far as items 4 and 5

are concerned, the relief of injunction should have been refused and the plaintiff should have been referred to a separate suit for the relief of

recovery of possession even if his title is accepted. As a matter of fact, in paragraph, 12 it is specifically made clear that the counsel for the

appellant in the earlier proceedings culminating in a decision marked as Ex. A-3 advanced no argument so far as the claim of title is concerned and

the attack was only on the limited relief of injunction granted in respect of suit items 4 and 5 in the earlier suit. It is in view of the above

observations and having regard to the fact the plaintiff, whose title has been sustained both in the earlier proceedings as also in the present

proceedings, he had to claim for recovery of possession on the finding recorded by the courts in the earlier proceedings that on the date of the

earlier suit, the plaintiff was not shown to be in possession.

The only question that has been urged before me and which has been formulated at the time of admission of the appeal as the substantial

question of bar arising in the appeal was as to whether the present suit was barred under Order 2, Rule 2 of the Code of Civil Procedure, Rule 2

of C.P.C. provides for more than one contingencies in order to prevent multiplicity of suits and ensure that a person shall not be vexed twice for

one and the same cause by splitting up of claims and splitting up of remedies. The prohibition contained in Sub-rules (1) and (3) of Rule 2 of Order

2, CPC would come into operation when the plaintiff, who is entitled to make a claim in respect of the cause of action is concerned omits to sue or

relinquishes any portion of his claim in respect of one and the same cause of action. If the two suits deal with different causes of action, it is obvious

that the prohibition in Order 2, Rule 2, CPC will not get attracted, unless it is shown that the claim made in the subsequent suit could have been

made either wholly or in part in respect of the very same cause of action in the previous suit, the bar engrafted under Order 2, Rule 2 has no

application to stand in the way of the subsequent suit. The object of Order 2, Rule 2 is to ensure as noticed earlier that the relief in respect of the

same cause of action is asserted and claimed in one action not to compel the inclusion, in one and the same action, of different cause of action even

though they arises out of one and the same event or transaction. So far as Sub-rule (3) of Rule 2 of Order 2, CPC is concerned, it would be

attracted where a number of lies flow up from the same cause of action.

Cause of action specified in the various limbs of Rule 2 of Order 2, CPC means the cause of action on the basis of which the suit was brought

and which gives occasion for filing a suit and forms the basis or foundation for the suit claim. A suit for declaration and injunction could be only on

the basis of title and possession by prohibiting interference with the possession held of the properties as on the date of suit by any one attempting to

middle with such possession. On the other hand, a suit for recovery of possession could be only on the ground of proof of title or the right to be in

possession by the plaintiff by also pleading in addition thereto that the plaintiff has been dispossessed wrongfully or that for some reason, or other

the plaintiff has ceased to be in possession but seeks to recover possession by virtue of his entitlement to recovery such possession from persons

who, on the date of the suit, are said to be in possession. Consequently, the basis of the claim in respect of the two different categories of relief of

injunction on the one hand and recovery of possession on the other as also the cause of action therefore could not be said to be one and the same.

Therefore, when in a suit or declaration and injunction the relief of injunction was refused on the ground that the plaintiff was not shown to be in

possession on the date of the suit notwithstanding the declaration of the title grantee to the plaintiff, the same does not preclude the very plaintiff

from bringing a second or subsequent suit for recovery of possession on an allegation of trespass or on other grounds justifying the claim for

recovery of possession. The relief of permanent injunction and recovery of possession are not only two distinct and different categories or relief but

the cause of action and the basis of claim for seeking the same also would turn on different considerations and consequently it is futile to contend

that merely because the claim related to one and the same properties it ought to have been made even in the first instance. At times, seeking for

such reliefs simultaneously would appear to be self contradictory unless sought for in the alternative. So far as the case on hand is concerned, the

earlier suit come to be filed in the second weeks of May, 1975 when the plaintiff claimed to have been in possession of the suit properties. In view

of the finding that the plaintiff has not shown to be in possession on the date of the said suit, it became inevitably necessary for the plaintiff to file the

second suit for recovery of possession and the cause of action for the second suit as disclosed and pleaded is one which was said to have arisen

after the filing of the earlier suit. The fact that the plaintiff in the present suit could have sought for by appropriate amendment, the substitution of

relief of recovery of possession instead of the relief of injunction is no ground to deny the right to suit in the plaintiff to seek for recovery of

possession on a totally different cause of action which occurred subsequent to the filing of the earlier suit. Even that apart, any such move on the

part of the plaintiff could have adversely affected his stand in the very earlier suit in respect of the relief of injunction and therefore, the present suit

filed cannot, in any manner, be said to have been hit by the embargo contained in Order 2, Rule 2 of the Code of Civil Procedure.

For all the reasons stated above, I am unable to sustain the claim on behalf of the appellants that the present suit is barred under Order 1, Rule 2

of C.P.C. Both the courts below have carefully and meticulously analysed the issue in this regard in the light of the relevant case law on the subject

and the concurrent findings recorded in this regard by both the courts below have not been shown to be vitiated in any manner warranting the

interference of this Court. The second appeal, therefore, fails and shall stand dismissed. No costs.