- (1.) THIS is second appeal against the judgment and decree of the Addl. Commissioner, Jaipur, dated 16. 12. 59 by which he rejected the appeal of the defendant appellant against the judgment and decree of the Asstt. Collector, Behror, dated 22. 3. 57.
(2.) THE suit had been preferred by the respondent Ramjilal on 1. 7. 54 for the recovery of possession of the disputed land. Pusaram and Ganga Sahai were the original Khatedars of the disputed land. Ganga Sahai pre-deceased Pusaram. Pusaram died in 1944-45. Kirparam, appellant, claimed heirship on the basis of adoption and got the disputed land mutated in his name. THE respondent failed against him in appeals as well. In the meantime, the land-lords of the land respondents No. 2 to 8 made encroachment upon the disputed land. THE appellant filed a suit against them and obtained a decree of possession, which was confirmed by the High Court also and he got possession as a result thereof in 1949. In 1946 respondent Ramjilal filed a suit against the appellant Kirparam for a declaration that he was the heir of the deceased Khatedar Pusaram as a reversioner and that the adoption deed on the basis of which appellant Kirparam made his claim be cancelled. This suit was dismissed by the trial court but was decreed by the first appellate court on 26. 2. 54. THE High Court was also pleased to confirm this decree on 9. 9. 59. THE respondent Ramjilal on getting the decrees in his favour in the suit referred to above preferred the present suit for possession on 1. 7. 54. He alleged that the appellant Kirparam was a trespasser on the land. THE suit was brought under Item 10, Schedule First Group B of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act of 1951. In this suit it was alleged that the appellant Kirparam had entered upon the land as trespasser on 11. 3. 49. THE suit was contested on the ground that it was barred by limitation because the appellant Kirparam would be deemed to be in possession of the land both on the date 14. 6. 46 when the first suit for declaration and cancellation of adoption deed was preferred and also on 11. 3. 49 when he got the possession back from the land-lord. Sec. 184 of the Alwar State Land Revenue Act was relied upon in this connection with the allegation that it required such suits to be brought within one year of dispossession. THE other contention raised was that the suit was barred by the provisions of 0. 2, r. 2 of the Code of Civil Procedure inasmuch as the respondent Ramjilal should have prayed for the relief of possession as well in the previous suit for declaration and cancellation and that because of his having not done so he should be deemed to have given up that relief and the present suit could not be entertained. It was also contended that there was a case of mis-joinder of parties and that the causes of action too had not been disclosed. As stated above both the Courts had decreed the suit, and hence this second appeal. In this appeal also the suit is being contested mainly on two grounds that the suit was time-barred as provided by sec. 184 of the Alwar State Land Revenue Code and that the relief for, possession having not been sought in the previous suit for declaration and cancellation, the present suit was barred by the provisions of O. 2 r. 2 of the Code of Civil Procedure. We have heard the learned counsel for the parties at length and examined the record of the case also fully. Both the points raised in this appeal have been dealt with by the learned lower courts. Issue No. 7: - Was about limitation. This plea was rejected by the learned trial court with the observation that the respondent had been quite actively and honestly continuing to press his claims in successive litigations and therefore the suit cannot be taken to be time barred. The learned Addl. Commissioner, however, has examined the points in the right perspective. He has held that sec. 184 of the Alwar State Land Revenue Code did not at all apply to the present case. He was quite correct in doing so. This sec. 184 was meant only for the re-instate-ment of the tenants ejected without their consent. The present case was not at all covered thereby. The suit as stated above had been brought under Item 10 of the first Schedule Group B of the Act of 1951 for the ejectment of the trespasser taking possession of land without lawful authority. The appellant got possession of the land on the basis of the adoption deed on the death of the last holder Pusaram on 14. 6. 46. The appellant was found by the competent courts not to have been adopted lawfully. This declaration was given in favour of the respondent for the first time on 26. 2. 54. The present suit was brought on 1. 7. 54. Both from 14. 6. 46 as well as 26. 2. 54 the period of 12 years allowed for bringing the suits under this item 10 had not lapsed when this lis was preferred. The suit has, therefore, been rightly held not to be barred by limitation. Now, for the application of the provisions of O. 2, r. 2 C. P. C. Issue No. 5 had been framed specifically on this point. This has been decided against the appellant by the learned trial court on the simple ground that the respondent deposed on oath that at the time of the institution of the suit the disputed land was in possession of the land-lords and not of the appellant himself. The learned Addl. Commissioner has dismissed this plea with a brief observation that the cause of action arose in favour of the respondent Ramjilal only when the appellant's adoption was declared to be void and was cancelled. O. 2, r. 1 C. P. C. lays down that as far as practicable every suit shall be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. The penalty for non-compliance of this Rule is provided by O. 2, r. 2. Sec. 11 Explanation IV also provides a penalty for the non-compliance of this Rule to some extent. It says that any matter which might and aught to have been made a ground of attack or of defence in a former suit will be deemed to have been a matter directly and substantially in issue in such suits and will not be allowed to be re-opened in a subsequent suit between the same parties even though it was not actually adjudicated upon in the former suit. O. 2, r. 2 provides that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action. , and that if he omits to include any portion of such claim he shall not be entitled to sue again in respect of it. At the same time it allows the plaintiff to relinquish any portion of the claim in order to bring his case within the jurisdiction of the Court. Sub-Rule (2) of this Rule says that 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. Sub-Rule (3) of this Rule says that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of the reliefs but that if he omits except with the leave of the courts to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted. It has been and is being contended that the first suit decided by the civil court gave the respondent title for bringing the suit for possession. The question however, is whether he could not claim for possession also in that very suit. There cannot be denying the fact that the cause of action for both the claims for declaration of title as well as possession of the disputed land arose only on the death of the last holder Pusaram and also the entry got done by the appellant in his favour in place of the last holder. When the cause of action was the same a heavy burden lay upon the respondent to show why he did not pray for the relief of possession also in the first suit itself. The allegation that the disputed land was not in possession of the appellant at that time cannot be a sufficient reply for this failure to pray for the relief for possession also in the first suit, specially when it was not so stated openly in the plaint itself. That the respondent became entitled to bring the suit for possession only when the title was declared in his favour and the adoption to the appellant was cancelled cannot also called to be a sound defence for the omission to pray for possession also in the first suit. The learned counsel for the respondent has made a feeble attempt to explain this failure with the allegation that the declaration and cancellation could be obtained from the civil courts whereas the suit for possession was within the competence of the revenue courts. To substantiate this allegation we have been referred to the provisions of the State Land Revenue Code sec. 6 (1) Group No. (II ). No item however therein goes to substantiate this allegation. No case of the type of the present suit was contemplated by any of the items in the Groups given in sec. 6 of the Alwar State Land Revenue Code. The suits of the present type could in 1946 when the suit for declaration of title and cancellation of adoption deed was brought by the respondent Ramjilal could be filed only in the civil courts, and the respondent should have added relief for possession also to the prayers made by him in that suit. The plea that the possession did not at that time rest with the appellant himself was not also a sufficient ground to justify the omission to sue the appellant for possession also. If the land was suspected to be in possession of the land-lords they could also have been impleaded as defendants as has been done in the present suit. Omission to sue for the relief of possession without the leave of the court surely debarred the respondent Ramjilal from bringing the suit now against the appellant both in terms of Sub-Rule (3) and of Sub-Rule (2) of the Rule 2 of O. 2 C. P. C. The dismissal of a suit for possession would certainly have barred a suit for declaration of title as held in 5 Oudh CAS 173 (175) and 10 Oudh CAS 44 (48) (DB ). The omission to sue for possession in a suit for declaration of title should, therefore, also act as a bar to a fresh and independent suit for possession. It has been observed in AIR 1955 Allahabad 661 that in order that the causes of action for the two suits may be the same for the application of O. 2, r. 2 C. P. C. it is necessary that not only the facts which would entitle the plaintiff to establish his title to the property claimed in the two suits be the same but also that the attack on the title or the infringement of the plaintiff's rights at the hands of the defendant must have arisen in substance out of the same transaction. The cause of action in favour of the respondent Ramjilal against the appellant arose in both the suits in the present case out of the death of Pusaram and the mutation secured by the appellant in his own favour. The provisions of O. 2, r. 2 C. P. C. were therefore very definitely attracted. In AIR 1953 Vindhya Pradesh 31, a practical test to determine whether the cause of action for the two suits is the same or not has been laid down as whether the plaintiff has to prove any more facts for substantiating his claim or relies in me second suit then he had done in the first suit. It cannot be disputed that the respondent had to prove identically the same facts to substantiate his claim in both the suits in the present case. In AIR 1952 Mysore 99 sub-Rules (1) and (3) of Order 2, Rule 2 C. P. C. have been held to operate even in cases where the two reliefs open to a plaintiff on same cause of action are cognizable in different jurisdictions. The learned counsel for the respondent Ramjilal has referred us to AIR 1931 Oudh Page 57 in support of his contention that the present suit was not barred under the provisions of Order 2, Rule 2 C. P. C. But the case is very easily distinguishable. In that case the first suit was for a declaration that the plaintiff was entitled to 2/3 snare in the certain Zamidari property. The second suit was for the recovery of a sum paid by the Government as compensation for the acquisition of a portion of that property. Obviously, the causes of action in the two suits were distinct and different and not identical as in the case of the present litigation. Next case referred on behalf of the respondent Ramjilal is AIR 1933 Bombay 398, is also distinguishable from the present case. That was a suit for setting aside a sale in which a claim for possession though could have been made had not been made and a second suit brought for possession was held not to be barred. The ratio-decidendi was that though the suits arose out of the same transaction, they were in respect of the different causes of action and that the causes of action for possession arose only on the sale and the sale deed having been set aside. It may be argued in the present case also that the cause of action for possession arose only on i the cancellation of the adoption deed in favour of the appellant and the declaration of the title in favour of the respondent and, therefore, the present suit for possession could be brought only when decrees for the first two items were obtained. But there it cannot be gainsaid that the cause of action in both the cases was the same e. g. the death of the last holder Pusaram and the entry in mutation register in favour of the appellant. The cause of action for possession did not arise only on the cancellation of the adoption and declaration of title in favour of the respondent, Ramjilal. But it did spring up as soon as Pusaram the land holder died and the disputed land was mutated in favour of the appellant. In 18 Sutherland WR 202, referred to by the learned counsel for the respondent also, the point for determination was whether the cause of action in both the suits was identical; and it was only when it was found that the cause of action was not identical that it was held that the second suit was not barred.
(3.) WE have already discussed above that in the present case the cause of action was identical and so this ruling cannot be applicable to the present suit. In 5 Indian cases 439 (referred to by the learned counsel for the respondent Ramjilal) also it has been held that the test for the applicability of the bar of the second suit is whether the causes of action in both the cases are one and the same or are distinct. As held above, the causes of action in both the suits are one and the same. This case also does not, therefore, go to help the respondent. To conclude, therefore, it is found that the respondent omitted to sue for possession also in the first suit and this action is hit by the provision of Order 2, Rule 2 C. P. C. He can not therefore be allowed to bring the present suit. The learned lower courts have failed to appreciate this fine point of law. The suit of the respondent therefore deserves to be dismissed as being debarred under the provisions of Order 2, Rule 2 C. P. C. Accordingly, we accept this appeal, set aside the judgments and decrees of the learned lower courts and direct that the suit of respondent Ramji Lal shall stand dismissed. . ;