Rajendran and Another vs Ramanuja Reddiar

Raju, J.—The above second appeal has been filed by the plaintiffs in Order S. No. 2129 of 1979 on the file of learned Additional District

Munsif, Villupuram and the appellants before the first appellate court namely, Subordinate Judge, Villupuram in A.S. No. 104 of 1982. The

plaintiffs have filed the suit for declaration of their title to the suit properties and for an injunction restraining the defendant from interfering with their

possession and enjoyment of the same or in the alternative, for possession in case the defendant trespasses during the pendency of the suit and for

determination of the future profits under Order 20, Rule 12 of the Code of Civil Procedure. The case of the plaintiffs before the trial court was that

the suit properties were purchased by one Muthu Reddiar vendor of the plaintiffs in 1944 and 1945 and he had been in possession and enjoyment

of the same, that he sold an extent of 52 1/2 cents, of which, the suit first item is a portion to the first plaintiff and the suit second item to both the

plaintiffs under two separate sale deeds dated 21.9.1979. The suit first item is of an extent of 15 cents. After the sale in favour of the plaintiffs, it is

claimed that they have taken possession of both the items of the properties and while they tried to plough up the lands on 10.10.1979, the

defendant obstructed them from doing so and driven the plaintiffs to the necessity of filing of the suit, praying for the relief as referred to supra.

The defendant has filed a written statement initially opposing the claim of the plaintiffs. Subsequently, the plaintiffs have got the plaint amended

by claiming also title by adverse possession and also challenging the purchase by the defendant from one Balarama Reddiar. The defendant also

claimed that Muthu Reddiar, the vendor of the plaintiffs, and his wife executed a settlement deed on 7.10.1975 of the lands in favour of one

Balarama Reddiar and his wife Kamalammal and not only the said settlement deed was accepted and acted upon, but the defendant also had

purchased the items settled in favour of Balarama Reddiar under a sale deed dated 5.10.1979 for valid consideration and he is continuing in

possession of the suit properties. It was also stated that in Order S. No. 308 of 1979 to which Muthu Reddiar and the present defendant were

parties and which was in respect of the entire extent of 1.05 acres, a compromise was effected whereby 15 cents out of the said extent was

allotted to Muthu Reddiar and reasoning 90 cents to the present defendant and the boundaries as set out in the plaint in respect of the first item of

15 cents as amended are not correct and that though the defendant had acquired legal right in respect of the property given to him under the

compromise he has purchased the same by way of abundant caution from Balarama Reddiar and his wife also.

On the above claims and counter claims, the suit was set for trial and the learned trial Judge held that the settlement in favour of Balarama

Reddiar and his wife was accepted and the same was also acted upon. Learned trial judge also held that the Ex.A-1 sale deed is valid only in so

far as it relates to 15 cents in R.S. No. 30/6 forming part of the first item in the plaint and not valid in respect of the rest of the extent and Ex.A-2

sale deed in favour of the plaintiffs in respect of the suit second item is not valid since the purchase was not from the real owners namely Balarama

Reddiar and others. The compromise in Order S. No. 308 of 1979 was also held to be binding. Learned trial Judge also held that the suit was hit

by Order 2, Rule 3, C.P.C. and even in respect of 15 cents comprised in Ex.A-1 sale deed the suit cannot be decreed for declaration and

injunction having regard to the irregular framing of the suit. On that view, the suit came to be dismissed by judgment and decree dated 10.9.1981.

Aggrieved, the plaintiffs pursued the matter on appeal before the Sub court, Villupuram, learned first appellate Judge also confirmed the findings

and conclusions of the learned trial judge and dismissed the appeal.

Aggrieved, the above second appeal has been filed. At the time of filing the second appeal, the appellants have filed C.M.P. No. 5977 of 1983

seeking to amend the plaint in Order S. No. 2129 of 1979 so as to incorporate in the plaint a prayer for the relief of recovery of possession also

and for consequential amendments with reference to the valuation portion of the plaint. Learned Counsel for the respondent/defendant opposed the

application on the ground that no such amendment can be permitted at this stage in view of the fact that this is a case of the plaintiffs giving up the

very same relief which they prayed for before the trial court during the course of the trial and having given up and abandoned such a claim it is not

given to the plaintiffs at the second appeal stage to respondent such a claim under the pretext of seeking for amendment of the plaint.

Learned Counsel for the appellant contended that the courts below have committed an error in upholding the settlement under Ex.A-9 and

nullifying the sale in favour of the plaintiffs except in respect of 15 cents and denying even the relief in respect of the said 15 cents. Argued the

learned Counsel further that the courts below committed an error in rejecting the plea of adverse possession projected by the plaintiffs and

consequently, the judgments of the courts below are liable to be set aside.

Mr. Mani Narayanan learned Counsel appearing for the respondent/ defendant contended that both the courts below have exhaustively and

meticulously dealt with and analysed the oral and documentary evidence on record and recorded concurrent findings regarding the validity of the

settlement under Ex.A-9 and found further that it was not only accepted by the settles but it was acted upon and that therefore, the findings

recorded by the courts below do not call for any interference in this second appeal.

I have carefully considered the submissions made by learned Counsel appearing on either side. In my view, the judgment and decree of the

courts below do not suffer from any parent error of law or perversity of approach. Both the learned Counsel appearing on either side took me at

length through the various findings recorded by the courts below. I find that there has been proper and meticulous assessment of the materials in

their proper perspective before recording the factual findings in favour of the defendant and those findings concurrently recorded by both the courts

below are not shown to be vitiated on account of total want of evidence or due to perversity of approach. On the other hand, the findings recorded

are well merited and based on the relevant as well as sufficient evidence. Consequently, there is no scope of interfering with such a finding of fact in

this second appeal.

Learned Counsel for the appellants contended that the courts below committed an error in rejecting the relief in favour of the plaintiffs even in

respect of 15 cents forming part a portion of suit item No. 1 for which, the courts found that the plaintiffs would be entitled to by virtue of sale

deed in their favour. Learned first appellate Judge has chosen to confirm the judgment and decree of the trial judge denying relief even in respect of

15 cents forming part of item No. 1, placing reliance upon in the case of Cheventhipaul Nadar Vs. Srinivasa Nadar and Others, . In pursuing the

claim for amendment of the plaint and for grant of relief at least to the extent of 15 cents, learned Counsel for the appellants placed reliance upon

the decision reported in Dominic Ammal and Another Vs. Muthuswamy and Another, . That was a case wherein the plaintiff laid the suit for

declaration of title and for recovery of possession of the middle and the southern portion of the suit property and for future mesne profits. Apart

from other contentions, the defendants resisted the suit contending that it was barred by Order 2. Rule 2 of the Code of Civil Procedure, 1908 on

the ground that the plaintiff who earlier filed Order S. No. 247 of 1971 for declaration of title and for injunction to which defendants 1 and 2 in the

subsequent suit were parties in the earlier suit, such a relief was not claimed. The contention of the defendants was that the plaintiffs having failed to

claim the relief of recovery of possession in respect of the middle and the southern portions in the earlier suit, the subsequent suit for such a relief

was barred under Order 2, Rule 2 of the Code. Nainar Sundaram, J. as the learned Judge than was, has considered the issue at length in the light

of catena of cases on the subject and held that cause of action has got a factual potency for the claims of a plaintiff as a foundation for the relief

which he claims and put forth and it is not for the court to find out the cause of action for the plaintiff from the facts pleaded by the defendant.

Learned Judge has also observed that what could not be asked for on the disclosed allegations cannot come within the mischief of the rule in Order

2, Rule 2 of the Code, and one useful test to find out as to whether the cause of action in the later suit is the same as that in the earlier suit, is to see

whether the same evidence will sustain both suits; and due regard must be given to the facts alleged in the two suits and not to the facts as found by

the court in the earlier suit. I am unable to see any relevance of the said judgment to the case on hand.

Learned Counsel for the respondent/ defendant has relied upon a decision of a Division Bench of this Court reported in Messrs.

Mohammedaly Sarefaly and Company v. Income Tax Officer (1968) 81 L.W. 316. That was a case wherein successive petitions were being filed

by a person for identical reliefs. Their Lordships of the Division Bench have held that a party who comes to court asking for a particular relief in

relation to the particular subject matter must state all facts and circumstances and urge all the grounds on which he seeks relief and failure to do so

either by negligence or oversight cannot be an excuse for starting of a litigation all afresh. Though the judgment of the Division Bench reinforces the

position, that the principle enshrined in Order 2, Rule 2, C.P.C. would be applicable even to proceedings under writ jurisdiction, the case on hand

before me would fall into a distinct and separate category, altogether. Order 23 deals with withdrawal and abandonment of part of claim. Sub-rule

(4) of Rule 1 of Order 23 provides that where the plaintiff abandons any suit or part of claim without the permission of the court, be is precluded

from subsequently instituting any fresh suit in respect of such subject-matter or such part of the claim. In this case, there is no controversy over the

position that the plaintiffs who specifically pleaded for the relief of recovery of possession at the time of institution of the suit have given up and

abandoned the same by having the plaint amended without any leave obtained from the court as contemplated under Order 23, Rule 1(3) and

consequently, they are precluded from seeking for the very same relief or claim of the recovery of possession. In view of the above, the application

for amendment now sought for to introduce the relief which they have earlier specifically claimed but abandoned without obtaining the leave of the

court as contemplated in law cannot be allowed to be resurrected or reagitated subsequently and that too at this stage. The petition in C.M.P. No.

5977 of 1983 therefore fails and shall stand dismissed. Consequently, the second appeal also fails and shall stand dismissed. No costs.