Lalita Prasad Narayan Singh vs Sukhdeo Narayan Singh

Chatterji, J.—This appeal arises out of a suit for recovery of a certain sum of money said to have been paid as salami and as rent in respect of a certain settlement taken by the plaintiffs from the defendant. The land, which was the subject-matter of this settlement, had been previously settled with one Hardeo Bharthi and others, who were in possession of it and were recorded as occupancy raiyats in the finally published Record-of-Rights. It was after that that the plaintiff approached the defendant and got settlement of the land by payment of salami and rent as claimed. After the settlement taken by the plaintiffs, there was some proceeding in the Criminal Court u/s 144, Criminal Procedure Code, between them and Hardeo Bharthi, and this was followed by a civil suit which was dismissed up to the Court of Appeal with the result that the plaintiffs'' suit for recovery of possession failed.

The plaintiffs now claim that as there was a failure of the lease, they are entitled to get a refund of the salami and the rent paid by them. The defendant denied the receipt of the salami and rent and pleaded that he was not liable to pay back the same even if he had received it inasmuch as the plaintiffs took the lease with full knowledge of the existing facts.

The Courts below have held that the plaintiffs did really pay the salami of Rs. 550 and a further sum of Rs. 205.8-0 as rent to the defendant in respect of the land taken settlement of by them; they have also held that the defendant failed to put the plaintiffs in possession of the land. On this view a decree for a refund was passed.

In appeal it is urged on behalf of the appellant that the present suit is barred by the provisions of Order II, Rule 2, CPC and also that the plaintiffs cannot succeed because there was no covenant for title and they admitted in the previous litigation that they had been put into possession of the land.

As to the first contention, Order II, Rule 2 merely provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. What the rule requires is that every suit shall include the whole of the claim arising from one and the same cause of action and not that every suit shall include every claim or every cause of action arising out of the same transaction.

As their Lordships of the Privy Council have mentioned in Raja of Pittapur v. Venkata Mahipatti Surya 8 M. 520 : 12 I.A. 116 : 4 S. P.C.J. 638 (P.C.), the cause of action means the whole of the claim arising out of the cause of action upon which the suit was brought.

Now the previous suit was brought for recovery of possession of the land settled with the plaintiffs. That suit was mainly against Hardeo Bharthi and others, who had taken settlement of the land previously. The cause of action there is quite different from the claim arising out of the payment of salami money and for which the present suit has been brought; in fact the plaintiffs suit is the result of the dismissal of the previous suit, because if the plaintiffs'' had succeeded in the last litigation, then there would have been no cause of action for the refund of the salami money. It is true that the plaintiffs could have made an alternative prayer for a refund of the salami money, but it cannot be asserted that they were bound to make that claim so as to call into operation against them the provisions of Order II, Rule 2, I think, therefore, that this contention is without any foundation.

As to the other point raised, I think the case is concluded by the finding of fact. It has been held by the learned Sub-Judge that the salami money and the rent were actually paid; it has also been held that the plaintiffs were not put into possession of the land of which, settlement had been taken. It is no doubt true that the plaintiffs did allege in the previous litigation that they had got possession, but this is merely an admission. An admission is not conclusive evidence of the facts stated and, having regard to the fact the plaintiffs wanted to get possession, they must necessarily say that the lessor had really got possession from Hardeo Bharthi and that they had been put in possession; but, as a matter of fact, this case was found to be false in the previous litigation. The existence of that judgment is certainly a fact in issue and relevant u/s 43, Evidence Act. Be that as it may, on a consideration of the entire evidence, it has been found as a matter of fact that the plaintiffs did not actually get possession of the land settled with them. Such being the case, there has been a failure of the lease, because u/s 108 the lessor is bound to put the lessee into possession. He, having failed to do that, is bound to refund whatever money he got. In the result the appeal fails and is dismissed. But having regard to the conduct of the plaintiffs themselves, they must bear their own costs in this appeal.

Adami, J.

I agree.