MIRZA BANDEY ALI Vs. GOKUL MISIR

JUDGEMENT

(1.) THIS appeal arises out of a suit in which the plaintiff claimed joint possession of a certain share in a grove. The defence was that the suit was barred by Section 43 of Act XIV of 1882 having regard to previous litigation between the parties. The previous litigation consisted of a suit in which the plaintiff sued the defendants for a permanent injunction restraining them from interfering with his possession and appropriating the fruits of the grove. There was also a claim for damages. THIS last mentioned suit was dismissed on the ground that the plaintiff was not in possession and that neither injunction nor damage could, therefore, be claimed. The Court of first instance, dismissed the present suit. The Court of first appeal reversed the order of Court of first, instance and held that, the suit was not barred by Section 43 The learned Judge of this Court, in a very careful and elaborate judgment, reversed the Court of first appeal and restored the decree of the Court of first instance. The plaintiff comes now in appeal under the Letters Patent. Section 43 of Act XIV of 1882, is as follows: "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 jurisdiction of any Court. If a plaintiff omit to sue in respect of, or intentionally relinquish, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished." If we had to decide the question in the absence of authority, we might have some difficulty in dissenting from the view taken by our learned brother. We think, however, that the authorities show that for a long time it has been accepted in this Court and in other High Courts that the dismissal of suits of this nature on the ground that the plaintiff is not in or has not proved that he is in possession, is no bar to a subsequent suit for possession. As early as the year 1870, a Full Bench of this Court in the case of Darbo v. Kesho Rai 2 A. 356 decided that the dismissal of a suit for declaration of title on the ground that the plaintiff was not in possession was no bar to a subsequent suit for possession, It is true that the decision in that case was under Section 7 of Act VIII of 1859, and it is also true that the judgment in that case is a very short one. The same question arose in Sarsuti v. Kuni Behari Lal 5 A. 345. In that case the majority of a Court, consisting of Mr. Justice Straight, Mr. Justice Oldfield, Mr. Justice Brodhurst, and Mr Justice Tyrell, decided the same way, namely, that the suit was not barred.

(2.) THAT also was a decision under Section 7 of Act VIII of 1859, In this case Sir Robert Stewart, C.J, who was a party to the decision in Darbo v. Kesho Rai 2 A. 356 dissented. Again, in the case of Mohan Lal v. Bilaso 14 A. 512 a Bench of this Court composing of Edge, C.J., and Blair, J., decided that the dismissal of a suit for a declaration of title on the ground that the plaintiff was not in possession was no bar to a subsequent suit for possession. The learned Judges followed Jibunti Nath Khan v. Shib Nath Chukerbutty 8 C. 819. The decision of this Court in Darbo v. Kesho Rai 2 A. 512 does not appear to have been cited to the Court in that case. These cases clearly show that it has been the established practice of this Court not to dismiss a suit for possession merely on the ground that a previous suit had been brought for a declaration of title and dismissed on the ground of the plaintiff not being in possession. In the present case, the previous suit was a suit for an injunction, and it was dismissed on the ground that the plaintiff was not in possession. In our opinion, no distinction in principle can be drawn between the dismissal of a suit for a declaration of title on the ground that the plaintiff was not in possession and the dismissal of a suit for an injunction on the same grounds. Following the rulings and established practice of this Court, we think that the appeal ought to be allowed. We accordingly allow the appeal, set aside the decree of this Court, and restore the decree of the lower Appellate Court with costs in this Court.