SONU VALAD KHUSHAL KHADAKE Vs. BAHINIBAI MURD KRISHNA

JUDGEMENT

(1.) This appeal is brought by the plaintiff. His suit has been dismissed by both the Courts below on the ground that it was incompetent under Order II, Rule 2 of the Civil Procedure Code.

(2.) The suit was brought on a sale deed of October 1910 passed in the plaintiff s favour by the 1st defendant Bahini. Bahini and Tapi were the daughters of one Tukaram Narayan who died in 1901, leaving his widow Bhagirthi and the two daughters I have named. In the year 1910 Suit No. 270 of that year was brought by Bahini, the present 1st defendant, against her sister Tapi, the present 2nd defendant, and Zagdu, the present 4th defendant, for possession of Survey No. 324 which had been sold to Zagdu in January 1906 by Bhagirthi. In the same month, January 1906, but a few days earlier, Bhagirthi had sold Survey Nos. 403 and 404 to the present 3rd defendant, Dagdu. It is found as a fact that Dagdu and Zagdu and the 3rd brother Ukhardu, defendant No. 5, are joint in estate. The present suit by Bahini s vendee was to recover possession of the three Survey Nos. 324, 403 and 404.

(3.) The question is, whether the lower Courts were right in holding that the suit was barred by Order II, Rule 2 of the Code. That rule provides that "every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action," and that "where a plaintiff omits to sue in respect of any portion of his claim, he shall not afterwards sue in respect of the portion so omitted." In the view of the lower Courts the present claim in respect of Survey Nos. 403 and 404 was, or was to be regarded as, a portion of the claim agitated in Bahini s suit of 1910 and was based upon the same cause of action. It was consequently held that since Bahini omitted to sue in respect of Survey Nos. 403 and 404 in 1910, the plaintiff was debarred from preferring his claim to those numbers in the present suit.