KARIPPAYI KATHIRI AND ORS Vs. KARUTIPRATH KANNAN

JUDGEMENT

(1.) The only point argued in this second appeal is that the plaintiff s, suit is not barred by reason of the decree in Original Suit No. 364 of 1915. The plaintiffs brought Original Suit No. 364 of 1915 on a marupath dated the 27th January, 1902 and claimed possession of Items A and B. It was found in that suit that Item B was not included in the marupath of 1902, and so far as Item B was concerned the plaintiff s suit was dismissed. He has brought present suit on an earlier marupath dated the 9th October, 1876 and has asked for possession of Item B. The District Munsif gave a decree, but the Subordinate Judge held that the present suit was barred by reason of the previous suit, Original Suit No. 364 of 1915. It is somewhat difficult to follow the argument of the learned Judge when he says that the plaintiff had only one cause of action in both the suits and that, he is not, therefore, entitled to succeed in the present suit. Original Suit No. 364 of 1915 was based upon a marupath of 1902 whereas the present one is based upon the marupath of 1876. The causes, of action in the two suits are different. What is urged on behalf of the respondent is that the same relief was claimed in both, namely, possession of the property and, therefore, the present suit must be held to be barred. No doubt, the plaintiff did claim possession, but he based his former suit upon one cause of action and he based the present suit upon a different cause of action. When the causes of action are different it cannot be said from the mere fact that the same relief is claimed in both, that the later suit is barred by, reason of the earlier suit. The point is governed by authority: vide Thrikaikat Madathil Raman v. Thiruthiyil Krishnan Nair (1906) 29 Mad. 153. In a recent case Mr. Justice Sadasiva Iyer held that if a person has two titles derived from two different persons, and if he sues on one title and fails, it is open to him to bring another suit upon the other tibia and succeed Mangalathammal v. Veerappa Goundan (1919) M.W.N. 287. It is unnecessary to discuss this question further. The second appeal is allowed. The decree of the Subordinate Judge is set aside and that of the District Munsif restored with costs an both Courts. Time for payment of the value of improvements extended by three months from this date.