Kumar Kamakhya Narain Singh vs Ramraj Singh and Others

Wort, J.—This is the plaintiff''s appeal arising out of an action to resume possession of a village named Ghangri which was with a village known as Kungurua with its tola Keotbigha the subject-matter of an Istamrari mokarrari grant by Raja Ramnath Singh, the ancestor of the plaintiff, to Sambhu Singh and Sheosaran Singh in the year 1864. Sambhu Singh predeceased Sheosaran Singh and the cause of action arose on the death of the latter in or about the year 1915; the actual date of the death of Sheosaran Singh being one of the disputed points in the case.

It was also an issue in the Court below whether the grant was merely a grant for the lives of the two grantees or whether it was heritable.

No argument was presented to this Court An the point as the appellant accepts the position that so far as this Court is concerned we are bound by authority, but the point is formally taken with a view to appeal. In the opinion delivered by the Judicial Committee of the Privy Council in Tulsi Prasad Singh v. Ramnarain Singh (1886) 12 Cal 117, it was said after reviewing the decisions:

Their Lordships think it is established that the words ''istamrari mokarri'' in a patta do not per se convey an estate of inheritance, but they do not accept the decisions as establishing that such an estate could not be created without the addition of other words that are mentioned, as the Judges do not seem to have had in their minds that the other terms of the instruments the circumstances under which it was made, or the subsequent conduct of the parties, might show the intention with sufficient certainty to enable the Court to pronounce that the grant was perpetual.

Nothing has been brought to our attention in this case to enable us to come to any conclusion other than that the grant before us was one for lives. In passing the learned Advocate made reference to the Record of Rights which describes this grant as "not resumable" but what effect this fact might have on the question was not developed in argument. Among the points which have been argued before this Court is whether the second grantee was one Sheosaran, a nephew of Shambhu, or whether he was Sheocharan, a son of Shambhu, as the defendants allege.

The point of the defendants'' contention that he was Sheocharan, the son of Shambhu, was that the son died admittedly many years ago and beyond the period of limitation and the action is therefore barred by time. Even if it were Sheosaran, the nephew, the defendants contend that he died beyond the period of twelve years. On this point the learned Subordinate Judge has decided that the second named of the grnatees was, as the plaintiff alleges, Sheosaran, the nephew but that he died in the year 1913, having accepted the evidence of the widow of Sheosaran which evidence was taken in a former criminal case. It is the contention of the defendants that this evidence was not admissible.

The plaintiff sought to justify the reception of the evidence u/s 32, Clause 5, Evidence Act. The Subordinate Judge has decided that the action is barred by limitation by reason of the fact that defendants 37 to 39 who were necessary parties to the action were not added as parties until 11th April 1927, this being more than twelve years after the death of the second named of the grantees. It is true that the minor defendants 37 to 39 wore not parties to the action in which the plaintiffs sought to resume possession of the village Kangurua, but both points of limitation are disposed of by the following considerations. It must be held that neither in this action nor the former action were defendants 37 to 39 necessary parties as they were members of a joint family and were represented by their father: Lalchand Thakur and Others Vs. Sheogobind Thakur, . As regards the question whether it was Sheocharan or Sheosaran it was held in the former action for possession of the village Kangurua to which the same persons (excluding defendants 37 to 39) were parties that the second named of the grantees was Sheosaran and that he died in the year 1915. The parties are therefore bound by the decision and the present action cannot be held to be barred by limitation.

However, the learned Subordinate Judge has held that the action is barred by Order 2, Rule 2, Civil P.C. The facts are these: on 1st May 1925 the plaintiffs brought the action already referred to for the resumption of the village Kangurua alleging the same facts as the basis of their cause of action; the grant being for lives only and the grantees being dead, they had a right to resume possession of the village. Judgment in that case was delivered on 30th July 1926; this present action was commenced in July 1925, for the resumption of the other village Ghangri.

It was argued by the defendants, a contention accepted by the learned Subordinate Judge, that in the action of May 1925 the plaintiff could have included a claim for village Ghangri as well as village Kangurua, his right to relief in respect of the two villages being based on the same cause of action; and having omitted to claim all the relief to which he was entitled his claim is now barred.

Mr. Sushil Madhav Mullick on behalf of the plaintiff-appellant contends that the grants of the two villages, although included in the same document, Were two separate transactions, that the rents reserved were separate, that the holding over of the two separate villages gave rise to and were different causes of action.

It is not quite accurate to say that the rent of each village was treated separately in the kabuliyat. It is true that the kabuliyat of 27th November 1864 mentions the rent of Kangurua as Rs. 20-4-0 and the rent of Ghangri as Rs. 71-3 0, but then treats the rent as one rent in a total of Rs. 91-7-0. For these contentions as to the facts, rents receipts showing payment and receipt of rent for the villages separately, entries in the Awarza register as separate villages, entries to the same effect in the Siaha book of the Raja are relied on. The respondents'' argument is that although there may have been a division of the rent between the villages and they may have been treated separately, yet the two villages were the subject-matter of the same grant and that the death of the grantees was the cause of action which entitled the plaintiff to resume both villages. The case of Rao Kurun v. Mohomed Fyz Ali Khan (1870) 14 MIA 176 was relied upon by the appellant.

However, it is clear that this authority is of no assistance to him as it was pointed out by Sir James Colville who delivered the opinion of the Judicial Committee that the cause of action in the former suit the claim in which was said to have barred the right of the plaintiffs to bring the suit with which the Board was then dealing was entirely different. As I have said the appellant sought to contend that although the death of the latter of the two grantees in this case gave rise to the claim to resumption yet the fact that there were two separate villages was the governing factor in deciding whether the cause of action in the two actions was the same. As there were two villages the holding over of each of the villages on the death of the latter of the two grantees constituted in the case of each of the villages a separate and distinct cause of action. In my judgment the mere physical division of the lands in dispute into two separate villages and that they may have been treated as such in the potta is immaterial.

The cause of action consisted in the fact of the grant plus the fact of the death of the latter of the two grantees. On proof of these facts the plaintiff was entitled to resume not only the village Kangurua, the subject matter of the former action, but village Ghangri the subject-matter of the present suit. In the case of Muhammad Hafiz v. Muhammad Zakariya AIR 1922 PG 23 the plaintiff as mortgagee under a bond was entitled on the nonpayment of interest for a period of six months to realize both principal and interest or interest alone without waiting for the expiration of the time fixed being a period of three years. Three years elapsed and no interest was paid, whereupon the plaintiff brought a suit for interest alone. Subsequently the representative of the deceased mortgagee brought a suit both for the unpaid principal and the interest less the sum of interest recovered in the former suit.

It was held that as the plaintiff had not claimed the full relief to which he was entitled in the former suit which was both principal and interest he or his representative was barred under the provisions of Order 2, Rule 2 from bringing the second suit. Lord Buckmaster in his judgment in inquiring what was the cause of action which the plaintiff possessed in the former suit said

it was the cause of action due either to the fact that the interest had been unpaid for more than six months or that the three years had elapsed and in either case he could have sued for the whole amount secured by the deed.

In the case before us the cause of action was the death of the grantees and on that occurring the plaintiff was entitled to resume both villages. It has been pointed out in a number of decided cases that cause of action means every fact that it would be necessary for the plaintiff to prove if traversed by the defendant in order to succeed in his claim.

The facts which the plaintiff had to prove in this case were first the grant, then the death of the latter of the grantees and lastly the holding over by the defendants. On proof of those facts the plaintiff was entitled in the earlier action to claim possession of the two villages. If he claimed one only, it seems that he claimed less by way of relief than that to which he was entitled and that Order 2, Rule 2 governs the case.

There are however two answers to this offered by the appellant and they are these. First that the former suit was brought in the Court of the Munsif who had the powers of an additional Subordinate Judge and an appeal from his decision went to the Judicial Commissioner of Chota Nagpur and not direct to the High Court. It is therefore said that the plaintiff in bringing that suit in the Court of the Munsif was obliged to limit it in value to the jurisdiction of the Munsif. It is clear however that the Court before which the claim was brought had jurisdiction to try the larger claim as the Judge had powers of a Subordinate Judge and the plaintiff limited his claim voluntarily. Again there is no reference in Order 2, Rule 2 to the jurisdiction of the Court trying the claims and the plaintiff in choosing the Court of the Additional Subordinate Judge in the exercise of his powers as Munsif was merely relinquishing a part of his claim within the meaning of the second part of the rule.

The other contention is that the present minor defendants were not parties to the former suit and that the claim being against different defendants the claim is not barred: Rao Kurun Singh v. Mahomed Fyz Ali Khan (1870) 14 MIA 176. But the answer to that is that the minor defendants were not necessary parties to this action or the former action being members of a joint family and being represented by their father. In these circumstances the appeal fails and must be dismissed with costs to the contesting respondents.

Fazl Ali, J.

I agree.