9911796707
TMI Blog2004 (2) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... August, 1975. The suit was filed in Munsiff's Court, Palai on the ground that the plaintiffs are only legal heirs and hence they had title over the plaint schedule property. Defendant no.1 filed an application before the Land Tribunal, Palai to purchase the jenmam right claiming to be cultivating tenant. The same was dismissed. An appeal against the said order was also dismissed. The plaintiffs had earlier filed OS 208/77 seeking a decree for declaration of right and title to the plaint schedule property and their possession. Though their title was upheld but prayer for injunction was rejected as possession was not found. Appeal against the judgment in question did not bring any relief. Subsequently, the suit to which the present dispute relates was filed claiming recovery of possession with mesne profits. The appellant resisted the suit saying that he was a co-owner, as Narayanan Nair was his uncle. Both Narayanan Nair and his mother were looking after him and after the partition which took place when he was very young, Narayanan Nair gave the plaint schedule property to him and since then he was in possession and in enjoyment of the property. Though the application before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clude whole claim which the plaintiff is entitled to make in respect of a cause of action, and if he does not do so then he is visited with the consequences indicated therein. It provides that all reliefs arising out of the same cause of action shall be set out in one and the same suit, and further prescribes the consequences if the plaintiff omits to do so. In other words Order II Rule 2 centers round one and the same cause of action. Order II Rule 2 with its sub rules and illustration reads as follows: 2. Suit to include the whole claim. - (1) 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 the jurisdiction of any Court. (2) Relinquishment of part of claim. - 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. (3) Omission to sue for one of several reliefs. - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2, Rule 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identify of the cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raise, and has been heard and finally decided by such court. Res judicata pro veritate accipitur is the full maxim which has, over the years, shrunk to mere res judicata . Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman Jurisprudence Interest reipublicae ut sit finis litium (it concerns the State that there be an end to law suits) and partly on the maxim Nemo debet bis vexari pro una at eadem causa (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction of the court but operates as a bar to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised. The above position was noted in Deva Ram and Another v. Ishwar Chand and Another (1995 (6) SCC 733). The doctrine of res judicata differs from the principle underlying Order I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e action, not merely the technical cause of action. As observed by the Privy Council in Payana v. Pana Lana (1914) 41 IA 142, the rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action or different causes of action, even though they arise from the same transaction. One great criterion is, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit whether the same evidence will maintain both actions. (See Mohammad Khalil Khan v. Mahbub Ali Mian (AIR 1949 P.C. 78) In Inacio Martins (deceased through LRs.) v. Narayan Hari Naik and Ors. (1993 (3) SCC 123), an almost identical question arose. In that case, the plaintiff had prayed for protection of his possession by a prohibitory injunction. That prayer was refused. Subsequent suit was for recovery of possession. This Court held that in the former suit the only relief that the Court could have granted was in regard to the declaration sought for which the Court could not have granted in view of the provisions of Specific Relief Act. The cause of action for the first suit was based on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving himself to be any one of the above such persons, clause (ii) deals with a person with bona fide intention by doing any one of the things enumerated is in occupation as cultivator, and clause (iii) deals with a person who comes into possession of land belonging to another and makes improvement thereon in the bona fide belief that he is entitled to make such improvements. According to the appellant, both clauses (i) and (iii) are applicable to him. Clause (i) deals with the person who bona fide believes himself to be a lessee in respect of land in question. The fact that he asserted a claim for purchase of jenmam rights, irrespective of the rejection of the claim would go to show that at any rate he was believing in good faith to be one such person viz., lessee. Clause (iii) encompasses a person who come into possession of land belonging to another person and makes improvements thereon with the bona fide belief that he is entitled to make such improvements. The appellant was claiming himself to have been put in possession as the nephew of late Narayanan Nair, and as a person in such possession - claims to have made certain improvements. Indisputably he was in possession. Tho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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