Shrimati Charan Kaur vs Hari Singh

Shamsher Bahadur, J.—Hari Singh, Plaintiff-Respondent, brought a suit for possession of land measuring 14 kanals and 6 marlas comprised in khasra No. 6/12 (7 kanals 7 marlas), khasra No. 6/13/1 (6 kanals 4 marlas) and khasra No. 6/29 (15 marlas) covered by a house, in village Shergarh of Hoshiarpur tehsil, on the assertion that he is the owner thereof and into which the Defendant had trespassed. The suit was decreed by the trial Judge and the Defendant. Smt. Charan Kaur having failed in her appeal before the learned Additional District Judge of Hoshiarpur has now come to this Court in second appeal.

The suit of the Plaintiff was resisted by the Defendant on the ground that she had been in possession of it for more than 12 years and the suit was barred under the provisions of Order 2, Rule 2 of the Code of Civil Procedure. The ownership of the Plaintiff was denied by the Defendant. The pleadings of the parties gave rise to the following issues:

Whether the Plaintiff is the owner of the land in the suit ?

Whether the Plaintiff bad been in possession within 12 years before the institution of the suit ?

Whether the suit is barred under Order 2, Rule 2, CPC ?

Relief.

The findings of the Courts below are concurrently in favour of the Plaintiff. So far as the first issue is concerned, the proof in support of it is ample and the learned Counsel for the Appellant, Mr. Balmukand, has not seriously challenged the correctness of the decision. What the revenue records show is that the Plaintiff was an ower of certain lands in the year 1950-51. Subsequently, there were consolidation proceedings and in the jamabandi (Exhibit P. 1) for the year 1956-57 the Plaintiff is recorded an owner of the suit land. All that the Defendant asserted on this aspect of the case was that the Plaintiff had withheld the latest document handed over to him in consolidation proceedings. It is not clear what that document was and how it had been withheld ? On the evidence on record the finding of the Courts below is not open to any challenge.

4 On the question of adverse possession, the Defendant has not been able to make good her case. It appears from Exhibit D. 8, which is a jamabandi for the year 1934-35, that Charan Kaur was a donee of a certain piece of land from some co-sharers. According to the case set up on her behalf, she has been in possession of the entire land since 1934-35 and has continued to remain in possession of it till the date of the suit. It is a well-known principle of law that the possession of one co-sharer of a part of a joint property cannot by itself amount to an ouster of others. The possession of one-co-sharer is presumed to be the possession of all and unless the hostile title is asserted there can be so ouster by adverse possession. Reference may be made to AIR 1941 307 (Lahore) , which is a Division Bench authority of Tek Chand and Beckett JJ

The following is the result of a comparison of the relevant khasra numbers made by a Commissioner appointed by the Court:

The Plaintiff has come into possession of the present khasra numbers according to the latest jamabandi. In the year 1950-51, khasra Nos. 3329/1, 3329 and 3330 were owned and possessed by strangers and it is clear from a report in the roznamcha (Exhibit P. 6) that possession of khasra Nos. 4182/3331 was delivered to one Smt. Chanan Devi by the present Defendant. So, the utmost that can be said is that at one time Charan Kaur was in possession of khasra No. 4182/3331. There is no support for the contention of the learned Counsel for the Defendant that the entire land in dispute is covered by khasra No. 4182/3331. In any event Charan Kaur has been shown to have been ousted from possession of this khasra number by the roznamcha entry Exhibit P. 6. This finding of fact based as it is on cogent and reliable evidence cannot be challenged in second appeal and indeed there is no ground to give any contrary decision in favour of the Defendant-Appellant.

What has been seriously challenged by Mr. Balmukand, the learned Counsel for the Appellant is the decision of the Courts below on issue No. 3. It is contended by the learned Counsel that the suit of the Plaintiff should have been thrown out on the ground that in a previous suit brought by him he did not include the claim now made. Under Rule 2 of Order 2 of the Code of Civil Procedure:

2 (1) Every suit shall incude 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.......

It appears that Hari Singh instituted a suit against Charan Kaur on 12th of December, 1957. This was dismissed on 19th of December, 1958 (Exhibit D. 23) Charan Kaur was the second Defendant in that case, jagta son of Mangal being the other. That suit related to permanent injunction against the Defendants to restrain them from interfering with the Plaintiff''s possession in the agricultural land measuring 13 kanals and 13 marlas comprised in khasra Nos. 6/18 and 6/19. This suit was dismissed on the ground that the Defendants had not been proved to have come into possession of land during the pendency of that suit. In the operative portion of the judgment it was thus observed:

The suit of the Plaintiff is accordingly dismissed. Because the Plaintiff was misled by the erroneous omission of the Defendant, I leave the parties to bear their own costs.

The judgment of the trial Judge was upheld in appeal by the learned District Judge on 22nd of August, 1959 (Exhibit D. 3). The Plaintiff went in second appeal to the High Court where he was allowed by an order of the Court dated 4th of April, 1961, to withdraw it and permission was granted to bring a fresh suit. It would be recalled that the present suit which was instituted on 26th of February, 1959 was decreed on 29th of February, 1960. Till that time the order of the High Court allowing the Plaintiff to bring a new suit had not been passed. At the time of hearing of the appeal before the District Judge the order of the High Court was taken in additional evidence under Order 41, Rule 27 of the Code of Civil Procedure. Obviously this order was not available to the Plaintiff earlier and the document was, therefore, taken in evidence. The learned District Judge rightly observed that the previous suit having been permitted to be withdrawn with leave to bring a fresh one the objection under Order 2, Rule 2 of the CPC was no longer available to the Defendant.

Mr. Balmukand submits that according to the ruling laid down in the Privy Council decision in Parsotim Thakur v. Lal Mohar Thakur ILR 10 Pat 654, the document could not have been taken in additional evidence. The learned District Judge has observed that it was his own requirement which governed the decision and, he did so for giving a proper adjudication between the parties. The learned District Judge, in my opinion, could take into account the facts and circumstances which had arisen after the order of the High Court passed on 4th of April, 196l, and on that ground also the document was rightly taken into consideration. When the suit was pending there was no order of withdrawal and it could not conceivably have been produced as a document in the case before the trial Court. As held by their Lordships of the Supreme Court in Surinder Kumar v. Gian Chand AIR 1937 S.C. 875, in deciding an appeal the Court has to take into consideration the circumstances as they are at the time when the appeal is being decided, and the judgment passed on 4th of April, 1961 can certainly be taken into consideration under this principle.

Leaving apart the judgment of the High Court dated 4th of April, 1961,I do not see how the suit is barred under the provisions of. Order 2, Rule 2 of the Code of Civil Procedure. The Plaintiff''s land may have been trespassed at more than one different point. He is not bound to bring an action against the trespasser in respect of all the different encroachments made on his land. Each encroachment, in my opinion, gives rise to a different cause of action and what Order 2, Rule 2 con-templates is that all claims in respect of the same cause of action must be included in the suit. In order that the cause of action for two suits may be the same it is necessary not only that the facts which would entitle the Plaintiff to the right claimed must be the same, but also that the infringement of his right at the hands of the Defendant must have arisen, in substance, out of the same transaction. Reading the plaints in the two cases, the cause of action in the present suit appears to me to be entirely different from the one on which the previous suit was based. The Defendant may have trepassed into two different portions at different times but surely this could not be regarded as some thing done in the course of the same transaction.

In my opinion, there is no force in this appeal which fails and is dismissed with costs.