Ram Prasad Singh vs Radha Panday and Another

Meredith, J.—These are appeals by defendant in two suits from a decision of the learned subordinate Judge of Arrah, reversing a decision of the Munsif of Buxar. The appellant was a stranger auction-purchaser at a sale of certain lands comprising the holding of the plaintiff respondent and situated in two khatas. Shortly after the appellant''s purchase, the respondent brought two suits (suits Nos. 8 and 9 of 1934) for declaration of his title over the plots which had formed the subject of the sale. At that time the appellant had not taken out delivery of possession.

In the same year, 1934, however, during the pendency of those two suits the appellant took out dakhaldehani, and obtained possession through the Court. The respondent did not amend his plaint, or apply for the additional relief of recovery of possession. He succeeded, however, in establishing his title, and obtained a decision in his favour in both suits. By an accidental omission two plots, namely, No. 1378 comprising 1.5 acres in khata No. 106 and plot No. 1379 comprising 3.91 acres in khata No. 143, were omitted from his claim. At a late stage the plaintiff applied to amend the plaints by the inclusion of those plots, but that prayer was refused. The result was that the respondent obtained no declaration with regard to these two plots. To remedy the omission he then in 1936 brought the suits, which form the subject-matter of the present appeals. His title was not seriously questioned, but the defence was taken that the suits were barred under the provisions of Order 2 Rule 2, Civil P.C. This plea succeeded before the learned Munsif, and the suits were dismissed.

In appeal, however, the learned subordinate Judge reversed that decision, holding that the suits were based upon a distinct cause of action, inasmuch as there was no prayer for possession in the suits of 1934, (and indeed there could have been none when the plaints were filed, since at that time the plaintiff was still in possession) but in the present suits, which were of course brought after the defendant had obtained dakhaldehani, the claim was for declaration of title and recovery of possession.

In this view of the case the learned subordinate Judge held that Order 2, Rule 2 was no bar, and decreed the suits. Hence these appeals by the defendant, each of the appeals relating to one of the plots to which I have referred.

The only question is whether these suits are actually barred by the provisions of Order 2, Rule 2, Civil P.C. A number of rulings have been cited by Mr. Varma on behalf of the respondent, but none of them are really in point. No rulings directly in point have in fact been cited on either side. Nevertheless, I am clear in my own mind that this is a case where Order 2, Rule 2 is a bar, and that the appeals must, therefore, succeed. It is quite true that the former suits were merely for declaration of title, whereas the present suits are also for recovery of possession, but actually the recovery of possession is merely a consequential relief dependent upon the prior establishment of the plaintiff''s title. He could not succeed in these cases in recovering possession without the establishment, of his title to these two plots. The suits were not suits u/s 9, Specific Belief Act, and no suit could have been brought under that section, as the dispossession was not by a private person, but in due course of law under the orders of the Court. The suits in 1936, if u/s 9, would also have been barred by limitation. The plaintiff could succeed only after establishing his title to these plots, the recovery of possession being consequential upon the establishment of title. Order 2, Rule 2, however, clearly bars the plaintiff from establishing his title to these two plots. The test question, it seems to me, in a case like this is whether the plaintiff could recover possession without asking for the declaration of his title. It is quite true that there may be a distinct cause of action as regards dispossession, but that cause of action in a case like this is one of which the plaintiff cannot avail himself.

This is not a case of omitting to ask for one form of relief. It is not a case under Sub-rule (3) of Order 2, Rule 2, but a case under Sub-rule (2). The omission is not as regards any additional relief, which the plaintiff might or might not have been able to ask for at the time of the first suits, such as, recovery of possession, but it is in respect of a portion of the claim which the plaintiff could have and should have included in the original suits. He might not then have been able to include a claim for possession, though indeed upon the delivery of possession in 1934 he might have asked to amend his plaint and include that additional relief, but he did not do so. The point, however, is that the plaintiff could have included these two plots, in his claim and omitted, to do so, as he himself conceded, merely by an accidental omission.

Order 2, Rule 2 covers cases of accidental omission. This is well settled : Moonshee Buzloor Ruheem v. Shumsoonnissa Begam (67) 11 M.I.A. 551.

This is a case where the plaintiff brought the subsequent suits purely to rectify his original mistake, and that is just what Order 2, Rule 2 bars him from doing. His previous omission amounted to relinquishment of his claim with regard to these two plots, and once he has been deemed to have relinquished his claim to these plots, then Order 2, Rule 2 effectually prevents him from re-asserting it. Without re-asserting that claim to title he clearly cannot recover possession. It is necessary in a case like this to look at the substance and the principle of the enactment, and it appears to me that Order 2, Rule 2, Sub-rule (2), was enacted for just the purpose of preventing the sort of thing which the plaintiff is trying to do in these suits. In my opinion, these suits were plainly barred by Order 2, Rule 2, Civil P.C.

I would, therefore, allow the appeals, set aside the decision of the learned subordinate Judge, and direct that both the suits be dismissed. Having regard, however, to the equities of the case I would not award costs to the defendant in any of the Courts.

Fazl Ali J.

I agree.