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TMI Blog1902 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... B, the subject-matter of the former suit. The plaintiffs' ground of title in both the suits is one and the same, i.e., that as the heirs of their father they were entitled to succeed to both the properties on the death of their mother on the 9th January 1887. The former suit was instituted against the defendant therein, by reason of his wrongfully withholding from the plaintiffs, on the death of their mother, possession of the land in Schedule B, and the present suit is brought on the defendants herein similarly withholding the land comprised in Schedule A, the defendants in both the cases having respectively come into possession of the lands comprised in Schedules B and A under separate alienations made by the mother in favour of each on a different occasion. It will thus be seen that though the ground of title is one and the same in both the suits and the cause of action in respect of both arose at the same time, viz., the date of the mother's death, yet the persons who wrongfully withheld the land in Schedule A are quite different and there was no manner of combination or privity between them in respect of the lands which they severally withheld. 3. The words 'ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er suit did not include the whole of the claim which the plaintiffs were entitled to make in respect of the cause of action on which that suit was founded, and that the claim in the present ease is a part of the claim which they were bound to make in the former suit: in other words, that a cause of action against one person is a part of. the cause of action against another though it is not a joint one against both. 5. In Pittapur Raja v. Suriya Rau I.L.R 8 M. 520 in which Section 7 of Act VIII of 1859 (corresponding to Section 43 of Act XIV of 1882) was pleaded as a bar to a subsequent suit between the same parties, their Lordships of the Privy Council explained the law as follows (at page 524) : That section does not say that every suit shall include every cause of action, or every claim which the party has, but every suit shall include the whole of the claim arising out of the cause of action-meaning the cause of action for which the suit is brought. The claim in respect of the personality was not a claim arising out of the cause of action, which existed in consequence of the defendants having improperly turned the plaintiffs out of possession of Veeravaram. It was a distinct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first suit, upon pain of forfeiting all future right of suit against them by reason of such omission. The reasoning on which the decision proceeded is as follows: - 'As against the widow the cause of action is based upon the fact that she has made an alienation of the inheritance in excess of her interest. As regards an alienee, the cause of action arises from the circumstance, that the possession of a part of the inheritance is wrongfully withheld. Although the alienation may have been wrongful, it does not follow that an heir is entitled to recover possession from the alienee. Such an alienee, if a purchaser or mortgagee, may, under the doctrines laid down in Hanooman Persaud Pandy v. Munraj Koonwaree 6 M.I.A. at p. 393 successfully defend his possession by proving that he acted honestly and with due caution, but was himself deceived - and yet the heir might, although he could not succeed in a suit against the alienee, recover damages from he widow for her wrongful act. For the same reason (i.e., that the cause of action against the alienee is the wrongful withholding of possession) the heir's cause of action as against different alienees who have acquired possession und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals were preferred to Her Majesty in Council from the decision of Sadr Dewany Adalat in the first suit and from the Full Bench decision in the second suit Kooer Golah Singh v. Rao Kurrun Singh 14 M. I.A. p. 176; Rao Kurrun Singh v. Fyz All Khan 14 M.I.A., p. 187. Both the appeals are dealt with in one common judgment, the result being that the appeal from the first suit was dismissed, but the appeal from the second suit was allowed an 1 the Full Bench decision of the Sadr Dewany Adalat reversed on the ground that the second, suit was based on a different cause of action from the first and that Section 7 of Act VIII of 1859 was therefore no bar to the subsequent suit. It will be seen that out of the 27 villages which formed the subject-matter of the first suit arid had been alienated to the defendant therein, for a purpose not binding upon Rao Kurrun Singh, the next reversionary heir, 8 villages had already been mortgaged to, and were in the possession of, the defendant in the subsequent suit, the purpose for which the property was thus mortgaged being also found riot to be one that would be binding upon the reversionary heir. The three villages were included in the first suit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce and it must be admitted that that decision fully supports him. But the above decision of the Privy Council does not appear to have been brought to the notice of the learned Judges who decided that case and their decision cannot be reconciled with that of the Privy Council, The respondent's pleader is not able to cite any other casein which under similar circumstances Section 43, Civil Procedure Code, was held to be a bar. 9. The decision in Appeal No. 182 of 1896 purports to be based upon a course of decisions in this Presidency in which it was held that a suit relating to various properties in the possession of different defendants who claimed under different alienations made by a, widow or by a Karnavan or the managing member of a Tarwad of a joint Hindu family, is not open to the objection of misjoinder of defendants and of causes of action, when the plaintiff's ground of title to all the properties included in the suit is tire same. Vasudeva Shanbhaga v. Kuleadi Narnapai 7 M.H.C. R. 290; Mahomed v. Krishan I.L.R. 11 M. 106; Abdul v. Aayaga .12 M. 234; Byathamma v. Avulla I.L.R. 15 M. 19. With all deference, I venture, to state that the course of decisions referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id down in Cole on 'Ejectment' (page 76) is as follows: - When the tenements claimed and the tenants therefore are numerous, it is frequently advisable to bring two or more distinct ejectments rather than one action against all of them for the whole of the property. The exercise of a sound discretion and. judgment on this point may sometimes save much trouble. Under the English law and practice in an action of ejectment, the plaintiff need include in the action only those who are in possession of the and for the recovery of which the actions brought and in cases in which the plaintiff as heir-at-law may have to recover different portions of the inheritance which are in the possession of different persons, lie must exercise a sound discretion and judgment as to whether it would be expedient to bring one action of ejectment against all the defendants or different actions in ejectment against different persons in respect of the tenements in their respective possession. 10. Whether the action is based only upon one cause of action or not will depend upon the frame of the plaint in a suit for ejectment and not upon the answers to the suit, which may be set up by the different ..... X X X X Extracts X X X X X X X X Extracts X X X X
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