Bhagwat Singh and others vs Kumar Kamakhaya Narain Singh

Wort, J.—I think this appeal succeeds. The defendants are the appellants and they raise the question whether the relief which the plaintiff sought in the action out of which this appeal arises, should have been obtained in the executing Court and not by way of a separate suit.

It is necessary to state very shortly the facts in order to appreciate the question argued before me. In the year 1920 an action was brought by the plaintiff, who is the respondent before me for possession of a village which was the subject-matter of a thica lease for five years from 1899 to 1904. The contention (it would appear) in that suit was that the defendant, after the expiration of the lease, had held over. A judgment was obtained by the plaintiff and the decree for delivery of possession was put into execution. Again a suit was brought by the plaintiff of the former action for ejectment of some of the defendants from the bakasht land and a decree was again obtained. Now, this third suit has been brought with regard to a plot of land admittedly in the same village, upon which a bhandar stood. The defendant in the trial Court and in the appellate Court raised, unsuccessfully the question raised in this Court, namely, that as the land in the three suits was a part of the village the possession of which was decreed in the first suit, having regard to the claim made by the plaintiff in this action and in the former action (that is to say, the second action) any relief which he wished to obtain should have been obtained in the executing Court and not by way of a separate suit.

In so far as the cause of action could be described as the same in this suit and in the first suit (or the second suit), the learned Government Pleader appearing on behalf of the plaintiff-respondent does not question the correctness of the proposition advanced by Mr. De on behalf of the appellants. It must be so as the section itself is explicit on the point. The only question therefore in dispute is whether the cause of action is substantially the same. That depends entirely upon what the plaintiff claimed in the suit. As will be seen from the judgment in appeal and from the plaint, the plaintiff''s grievance admittedly was that in spite of the delivery of possession through the Court, in the first suit the defendant remained in possession. Now, taking those facts simpliciter, there is no doubt that the principle enunciated by S. 47, Civil P.C., applies. Now let me repeat myself on this point. The plaintiff claimed that in spite of the delivery of possession through the Court he had not obtained actual possession of the land or part of the land which was the subject-matter of the lease of 1899, S. 47 would presumably apply to this state of facts. In this Court the appellants meet the point by the two answers; in the Courts below by one only. The answer which was given to the point in the Court below, and which is common to one of the arguments advanced in this Court, was that the claim of the suit out of which this appeal arises included a claim for the demolition of the building on the plot of land and therefore it was a different cause of action. The second answer is that there was another party to this action who was not a party to the former suit: this party was defendant 2, the son of defendant 1. The learned Judge in the Court below, as I have stated accepted the answer to the first point made before him on behalf of the appellants.

In my judgment it is impossible to support his judgment on that ground. It was not impossible to claim the demolition of the bhandar in the first action as must be obvious. It is not denied that the building was erected during the course of the lease ; and therefore if the plaintiff had any right to have the building demolished before he got possession of the land at the hands of the defendant, then quite clearly he could make that claim in the former suit. It is suggested by the learned Government Pleader as a further answer to the point made by Mr. De in this connexion that if he had sought relief as to this matter in the executing Court, the executing Court would have met him by saying that "no such decree for the demolition of the building has been made." But in my judgment that clearly discloses that it was a cause of [action or part of a cause of action which the plaintiff might have included in the first suit, and, not having included it, he cannot bring a separate suit with regard to it.

But there is a further answer to the point, and that is that an action for demolition of the building can be brought on the assumption that the plaintiff has not got possession of the property and for this reason. If he has not got possession of the property, then the claim for demolition of the building obviously includes in this action a claim for possession of the property ; and, as he has got a decree for possession of the property, any grievance he may have with regard to that matter (as is admitted) must be made in the executing Court and not by way of a separate suit. Any addition of a claim for demolition of the building to a cause of action for possession of the property does not remove from the path of the plaintiff the answer that any claim for possession now must be made in the executing Court, which granted him the decree for possession and not by way of a separate suit.

The second answer given by the learned Government Pleader was that [there was another party to this action. The fact that another person has been joined to this action a person who was not a party to the former actions does not meet the point made against the plaintiff by the defendant-appellant, unless it can be shown that the plaintiff has a separate cause of action against the person. And if he has got a separate cause of action against that person, quite clearly he should not have joined defendant 1 to this action. But the third answer to it is that the cause of action alleged by the plaintiff is in that defendant 2 has committed a separate trespass upon the land, but that in spite of delivery of possession by the Court in the first suit the plaintiff in fact his not got possession. In my judgment, quite clearly the fact of joining the son of the original trespasser, alleging no particular cause of action against him is no answer to the point that any grievance that the plaintiff may have must be ventilated in the] executing Court and not by way of a; separate action.

There is only one other point which it is necessary to consider and that is one made by the Court during the course of the argument. It was suggested to Mr. De that this question of whether the relief which the plaintiff claimed should be got at the hands of the executing Court and not by way of a separate suit might have been raised in the second action, and that not being done it must be considered as res judicata. The authority relied upon by Mr. De for that matter against that point is the decision in Bagheshwari Charan Singh v. Bindheshwari Charan Singh, 1932 Pat 337 = 142 I C 495 = 12 Pat 117. It does not seem to me however to meet the point. The real answer to the point seems to me to be this. The mere fact that the point was not taken in the second suit does not give license to the plaintiff to continue to bring actions one after the other with regard to the property which was clearly a part of the property for which he got delivery of possession in the first suit, that is to say suit of February 1920. As I have stated, in my opinion the appeal succeeds and should be allowed with costs throughout.