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TMI Blog1948 (5) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... dge, Shahjahanpur, and the dismissal was confirmed by the High Court on appeal. 3. Appeal No. 6 of 1942, arises out of an application dated 27th July 1936, by three of the respondents in the above appeal under Section 4, U.P. Encumbered Estates Act, 1934 (U.P, Act 25 of 1934). In their statement under Section 8 of the Act, they claimed as their own the property claimed by the appellants in Appeal No. 6. Appellant 1 and Fida Ali Khan filed objections under Section 11 of the Act claiming the property as their own. Whilst these proceedings under the Act were pending they filed Suit No. 2 of 1938 above referred to. As that suit was dismissed, the Special Judge held in the proceedings under the Encumbered Estates Act that they were not proprietors of the property claimed by them in the said proceedings. An appeal by the appellants to the High Court in these proceedings was dismissed on 28th October 1941, on the ground that their appeal against the decree in Suit No. 2 of 1938 had been dismissed. 4. The decision of the Board in Appeal No. 5 of 1942 will depend on its decision in Appeal No. 6 of 1942, which is the main appeal before the Board. 5. The only question for decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (Appellant 1 in Appeal No. 6) and Fida Ali Khan -- plaintiffs in Suit No. 2--her cousins on her father's side. Of these, Fida Ali Khan died in 1940, and as already mentioned is now represented by his heirs Appellants 2 to 5. (2) respondents 1 to 4 in Appeal No. 6 of 1942 (Mahbub brothers) her sister's sons. (3) Mt. Abadi Begam, Mushtaq Ahmad and Abdul Latif, descendants of Raja Shamsher Bahadur and his first wife. 10. Following the death of Rani Barkatunnissa, mutation proceedings began in the Revenue Courts in respect of the Shahjanpur and Oudh properties respectively; and two suits also namely, Suit 5 of 1928 and Suit 8 of 1928, were instituted in respect of the Oudh property in the Chief Court of Oudh. 11. On 12th May 1928, the Assistant Collector of Shahjanpur, ordered mutation of names in respect of the Shahjanpur property to be effected in favour of the applicants Mohammad Khalil and Fida Ali Khan on the ground that Rani Barkatunnissa was a Sunni and under the Sunni law the nephews would exclude the sister's sons, the Mahbub brothers who were the objectors. This order was reversed in appeal by the Collector of Shahjahanpur on 20th June 1928, on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir claim on 20th June 1928. 16. Suit No. 5 and Suit No. 8 were tried together by Nanavutty J. The learned Judge on 15th April 1929, delivered one judgment dismissing the claims of the plaintiffs in suit No. 5 and decreeing the claim of Mohammad Khalil Khan and Fida Ali Khan, holding that Rani Barkatunnissa was a Sunni and that they were her heirs under the Muhammadan Sunni Law. This decision was confirmed by the Privy Council on 28th June 1934, in Abdul Latif v. Mt. Abadi Begam, connected appeals A.I.R. (21) 1934 P.C. 188. 17. On 18th February 1929, after all the evidence in the connected suits had been recorded and after counsel for the plaintiffs in suit No. 5, who were defendants 3 to 7 in Suit No. 8, had finished his arguments in both cases, and whilst counsel for the plaintiffs in Suit No. 8, who were defendants 4, 5 and 9 in Suit No. 5, was in the midst of his arguments, the plaintiffs in Suit No. 8 made what the learned Judge called a 'belated application under Order 16, Rule 7, Civil P.C., to amend the plaint by including in it their claim to the entire immovable property in the District of Shahjahanpur left by Rani Barkatunnissa. The rule empowers the Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere different and different reliefs were sought against them, the property in District Shahjahanpur could not be included in Suit No. 8 of 1928, according to law. (d) Separate causes of action accrued in respect of the property in District Sitapur and Hardoi on 28th March 9.928, and separate causes of action accrued in respect of the property in District Shahjahanpur on 29th October 1928. As the parties were also different, both the properties could not be included in one suit, otherwise the suit would have become bad for 'multifariousness.' (e) At the time of the institution of Suit No. 8 of 1928, the second appeal, preferred by the plaintiffs against the Collector's order dated 20th June 1928, was pending in the Commissioner's Court and had not been decided. It was struck off after the institution of Suit No. 8 of 1928. The cause of action for this suit accrued subsequently when the defendants took possession of the property in question. (f) The right to sue in respect of the property in districts Sitapur and Hardoi was based on other facts while the right to sue in respect of the property in question situate in district Shahjahanpur, is based on differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; to 'D' attached to the plaint. (This relief was obviously claimed against all the defendants including Mahbub brothers.) (d) A decree for the recovery of the moveables detailed in Sch, 'C' attached to the plaint be passed against defendants 1, 2 and 4 to 7 (defendants 4 to 7 are Mahbub brothers). (e) A decree for the recovery of cash and corn detailed in Scn. 'D' attached to the plaint be passed against defendants 1, 2 and 4 to 7 in favour of plaintiffs 1 and 2 (defendants 4 to 7 are Mahbub brothers). 30. A comparison of the reliefs claimed in Suits Nos. 8 and 2 shows that reliefs in the form of declaration and possession were claimed against Mahbub brothers in both suits. 31. It will be observed that the plaintiffs in the two suits claimed the properties, the Oudh property in Suit No. 8, and the Shahjahanpur property in the present suit, as heirs to Rani Barkatunnissa, who belonged to the Sunni sect, and died on 13th April 1927, though they described the cause of action, the nature of which their Lordships have to decide, as having arisen on different dates, viz., on 29th October 1928, and 1st January 1938, in Suit No. 2, and on 28th March 192 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property had occurred earlier than 29th October 1928, and that the cause of action to recover the property commences only from that date. 36. After discussing the meaning of the expression cause of action as explained in various leading cases the learned Judges expressed their opinion as regards the cause of action in the two suits as follows: The cause of action in the Oudh suit and in the present suit consisted of the facts that Rani Barkatunnissa was the owner of the disputed properties, that she died on 13th April 1927, that she was a Sunni by faith (the defendants alleging in both cases that she was a Shla by faith), that the plaintiffs were the heirs of Rani Barkatunnissa and entitled to inherit, that in the Oudh case the defendants had denied the title of the plaintiffs and in the other case the defendants in pursuance of the denial of title had obtained possession of the property. Mutation of names had already been obtained by the-defendants over the Shahjahanpur property by reason of the order of the Collector, dated 20th June 1928, when the Oudh suit was filed on 14th September 1926, and the plaintiffs were entitled to make a claim in respect of the Shahjahan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it No. 8 and in suit No. 2 was the same, that it was the plaintiffs' title to recover the properties which was the same in respect of both properties, that it consisted of facts which proved that the plaintiffs were the heirs of Rani Barkatunnissa under the Hanafi Law she being a Sunni by faith and that it originated on her death on 13th February 1927. He also contended that the respondents were not precluded from raising the plea that the suit was barred under Order 2, Rule 2, Civil P.C. 41. Their Lordships are satisfied that there is no force in the contention that the plaintiffs in the present suit could not reasonably commence an action in respect of the Shahjahanpur property, while their right to mutation in the Revenue registers was the subject of an appeal to the Commissioner which had not been decided, or in other words, that it was not open to them to sue the defendants in respect of the Shahjahanpur property at a date earlier than 29th October 1928, and to include the Shahjahanpur property in the earlier suit No. 8 instituted on 14th September 1928. This contention is not supported either by fact or law. Though the plaintiffs had secured an order as to mutation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiffs were entitled to make a claim with respect to Shahjahanpur property when the suit for the Oudh property was filed by them on 14th September 1928, unless the causes of action respecting the two properties were different. Their Lordships are of opinion, as will presently appear, that they were the same. 45. Shortly stated Order 2, Rule 2, Civil P.C., enacts that if a plaintiff fails to sue for the whole of the claim which he is entitled to make in respect of a cause of action in the first suit, then he is precluded from suing in a second suit in respect of the portion so omitted. To apply the rule to the facts of the case their Lordships will have to consider what was the cause of action in suit No. 8, on which the plaintiffs founded their claim, and whether they included all the claims which they were entitled to make in respect of that cause of action in that suit. For, if they failed to include all the claims, then by force of Order 2, Rule 2, they are precluded from including the claim omitted in the present suit No. 2. As pointed out in Moonshee Buzloor Ruheem v. Shumsunnissa Begum (1867) 11 M.I.A. 551 at P. 605: The correct test in all cases of this kind is, whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rothers who are the principal defendants in Suit No. 2, were also defendants in the earlier suit and reliefs as already pointed out were also claimed against them. 49. In their Lordships' view the plaintiffs' title to recover the properties cannot be affected by the different defences set up by the different sets of defendants. If the plaintiffs' title to recover the properties depends on their heirship to Rani Barkatunnissa as contended for by the respondents, then that right cannot be affected by the consideration whether Abadi Begam was defending the plaintiffs' suit on the basis of the Taluqdari Law, while Mahbub brothers were resisting it on the strength of Shiah Law; the plaintiffs are bound to succeed irrespective of the defences set up by the different sets of defendants. Whether the cause of action is one or the same in a suit for ejectment does not depend on the different answers to the claim which may be set up by different defendants. The different titles set up by them cannot split up the cause of action of the plaintiffs into distinct causes of action. It was urged by Mr. Jopling that Rani Barkatunnissa's title to Shahjahanpur property was diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence required to support the claims is different, then the causes of action are also different. This appears to be clear from the judgments of both Brett, M.R., and Bowen, L.J. Brett, M.R., observed as follows: ...Different tests have been applied for the purpose of ascertaining whether the judgment recovered in one action is a bar to subsequent action. I do not decide this case on the ground of any test which may be considered applicable to it; but I may mention one of them; it is whether the same sort of evidence would prove the plaintiff's case in the two actions. Apply that test to the present case.... 52. Bowen, L.J., quoted the following words of De Grey, L.J., in Kitchen v. Campbell (1771) 2 W. Bl. 827: The principal consideration...is whether it be precisely the same cause of action in both, appearing by proper averments in a plea, or by proper facts stated in a special verdict, or a special case. And one great criterion of this identity, is that the same evidence will maintain both actions.... And applying the test mentioned above the learned L.JJ. came to the conclusion in the case before the Court that the causes of action as to damage done to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment of the Board observed: ...their Lordships are of opinion that the expression cause of action cannot be taken in its literal and most restricted sense. But however that may be.... 58. The decision in the Rajah of Pittapur v. Sri Rajah Venkata Mahapathi Surya (1884.85) 12 I.A. 116 does not advance the case of the appellants. In that case the plaintiff sued to recover immovable property in consequence of having been improperly turned out of possession and afterwards sued to recover from the same defendant moveable property in consequence of its wrongful detention. Their title to the said estate as well as to the half share of the personalty now sued for was under a will of one Bharayamma. On the facts, their Lordships held that the causes of action in the two suits were distinct. They held that: The claim in respect of the personalty 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 Viravaram (Zamindari property). It was a distinct cause of action altogether and did not arise at all out of the other. 59. Referring to the above case, Lord Buckmaster stated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the properties consists of those facts which would entitle them to establish their title to the properties. These facts are the same with respect to both properties, these being, that Rani Barkatunnissa was the owner of the properties; that she died on 13th February 1927, that she was a Sunni by faith and that they are her heirs under the Muhammadan law. It is undisputed that if they prove these facts they will have established their right to both properties. A comparison of para. 1 of the plaint in Suit No. 2 (Shahjahanpur suit) with paras. 13 and 17 of the plaint in Suit No. 8 (Oudh suit) will show that substantially the same set of facts is alleged in those paragraphs as constituting their title to the properties, The other paragraphs of the plaint give information about the history of the case and connected matters, but the essence of the claim to the properties is what is contained in the paragraphs already mentioned, and it is the same in both suits. In this connection it is necessary to notice the argument that so far as Mahbub brothers are concerned, the cause of action in the Oudh suit which is said to be their denial of the plaintiffs' title, is distinct from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier suit, 66. It was next argued that having regard to the fact that the plaintiffs made an attempt--though unsuccessful it proved to be--to get the Shahjahanpur property included in Suit No. 8 by their application for amendment of the plaint made on 18th February 1929, already referred to, it cannot be said that they omitted to sue in respect of any portion of their claim within the meaning of Order 2, Rule 2, Civil P.C. It is impossible to accept this argument. The fact cannot be denied that Shahjahanpur property was not included in the plaint in Suit No. 8, and it was because it was omitted to be included, that the application for amendment was made to include it in the plaint. Their Lordships are unable to bold that, because the plaintiffs attempted to get it included in the plaint, but were not allowed to do so by Court's order, they did not omit to sue in respect of it. No authority was cited in support of the contention. 67. For the above reasons, their Lordships hold that the plaintiffs are barred by reason of Order 2, Rule 2, Civil P.C., from maintaining the present suit having regard to Suit No. 8, in which they omitted to claim the Shahjahanpur property. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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