1990 PLP 1920 (CLC)

SARDAR SAID MUHAMMAD KHAN, J.‑‑‑This appeal, by leave, has been directed against the judgment and decree of the High Court dated 20‑2‑1988, whereby the appeal riled by the appellant, herein, against the judgment and decree of the District Judge was dismissed. The brief facts giving rise to the present appeal are that before the present round of litigation, Allah Dad plaintiff/appellant, filed a declaratory suit on 8‑2‑1977 alleging that he was in possession of land comprising Survey No. 257, measuring 72 kanals 17 marlas, as owner and the defendant‑respondent was trying to forcibly dispossess him. He sought perpetual injunction that defendant -respondent be restrained from interfering in his possession. A cross‑suit was filed by Feroze, respondent, in the Court of Sub‑Judge Bhimber, seeking declaration that he was owner of one‑half of the land comprising Survey No. 257 and also sought perpetual injunction restraining Allah Dad, the plaintiff in the cross‑suit, from interfering in his possession. Both the suits were consolidated. After taking necessary proceedings the trial Court partly decreed the suit filed by Allah Dad, plaintiff/appellant, to the extent of land measuring 48 kanals 17 marlas and dismissed the suit to the extent of 24 kanals holding that Allah Dad, appellant, was not in possession of the same. The said decree of the trial Court was not challenged in appeal. The present litigation started when Allah Dad, plaintiff/appellant, filed another suit on 11‑3‑1982 for possession of suit land measuring 24 kanals about which his previous suit was dismissed. The suit was resisted by the respondent on the ground that in view of the provisions contained in section 11 of the Code of Civil Procedure and Order 11, rule 2, C.P.C. the suit was incompetent. The trial court decreed the suit of plaintiff/appellant, but on appeal to the District Judge the findings of the trial Court were set at naught. The appeal before the High Court by the appellant was dismissed. We have heard the learned counsel for the parties. It has been contended by Mr. Muhammad Sharif Tariq, the learned counsel for the appellant, that the High Court has erred in holding that the suit filed by the plaintiff/appellant was hit by the principle embodied under Order II, rule 2 of the C.P.C. He has contended that the High Court has failed to consider that the provisions contained under Order II, rule 2 of the C.P.C. would come into play only if it is shown that cause of action in the former and the subsequent suits is the same. The learned counsel has also submitted that assuming for the sake of argument that at the time of institution of the previous suit the possession of the land was not with the appellant, even then the subsequent suit for possession could not be dismissed as having been hit by the principle of res judicata. The learned counsel has referred some authorities in support of his contention. In a case reported as Basanna v. Appa Rao (A I R 1959 Mysore 227), relying upon number of authorities, particulary the case entitled Muhammad Khalecl Khan v. Mahboob Ali Mia (A I R 1949 P.C. 78), it was observed that dismissal of the previous suit for declaration of title and perpetual injunction on the ground that the plaintiff was not found in possession of the property did not bar the subsequent suit for possession on the basis of the title. The principle laid down in the aforesaid case is that as the cause of action in the subsequent suit would arise after the dismissal of the former suit, the question of cause of action being the same does not arise. It was opined that if, in the former suit, it is found that the plaintiff made an incorrect averment that would not debar him from instituting a subsequent suit for recovery of the possession for the simple reason that the cause of action in the second suit would arise only when the plea taken by the plaintiff in the former suit is found to be incorrect and suit is dismissed. In Mohammad Khaleel Khan v. Mahboob Ali Mia (A I R 1949 PC 78), it was laid down that correct test whether a case falls within the purview of Order 11, rule 2 C.P.C. is whether the claim in subsequent suit is founded upon a cause of action distinct from the former suit or not. In Abdul Rashid Sheikh and others v. Sachidananda Raj and others (A I R 1939 Cal. 523), the suit for injunction was dismissed as the plaintiff was found to have already been dispossessed from the land. Dealing with the question as to whether the subsequent suit for recovery of possession would be barred under Order II, rule 2 C.P.C. it was observed as under:‑ "...I do not think that 0.2, R.2 can in any way operate as a bar to the present suit. The cause of action on which the earlier suit was commenced could not certainly enable the plaintiffs to pray for a wider and larger relief than what they actually claimed in that suit and there is no question here of seeking to recover the balance which they could claim on the earlier cause of action by any separate and independent proceedings. It may be that the cause of action that was put forward in the earlier suit was wrong but the provisions of 0.2, R.2, Civil P.C., could not be invoked since the relief that is now claimed could not be claimed on the cause of action which was the basis of the earlier suit." The learned counsel has also cited Muhammad Yar v. Muhammad Yar (A I R 1929 Lah. 596) and Gul Muhammad Khan v. Muhammad Nawaz (1988 C L C 142) in support of his contention that dismissal of former suit on the ground that the plaintiff failed to seek the consequential relief under section 42 of the Specific Relief Act is no bar to institute a second suit for the recovery of the possession. The learned counsel for the appellant, on the strength of the afore‑cited authorities, maintained that as in the previous suit the Court came to the conclusion that although the plaintiff/appellant was owner of whole of the suit land under Survey No. 257, measuring 72 kanals 7 marlas, but refused to give the relief to the appellant in form of a perpetual injunction on the ground that he was not found in possession of the land to the extent of 24 kanals of the land comprising the said survey number. Thus, the learned counsel for the appellant maintained that a new cause of action arose in favour of the plaintiff for seeking the recovery of the possession after the dismissal of his previous suit. The learned counsel for the respondent, Ch. Muhammad Taj, has controverted the contention of the learned counsel for the appellant that the Court did not decide the question of title in the former suit. He has argued that the cause of action in b9th the suits was the same and thus the subsequent suit is clearly hit by the principle embodied in Order 11, rule 2, C.P.C. We have given our due consideration to the arguments raised at the Bar. It is correct that the appellant in his former suit prayed for a perpetual injunction alleging that whole of the land comprising Survey No. 257, measuring 72,kanals 7 marlas was in his possession. However, it was found that he was in possession of the land only to the tune of 48 kanals 17 marlas and the remaining 24 kanals of the land was not in his possession. Evidently, the plaintiff/appellant had failed to prove his possession over the suit land, measuring 24 kanal, at the time of the institution of the previous suit. It may be observed here that in the former suit the plaintiff was denied the relief of perpetual injunction to the extent of 24 kanals of the land on the sole ground that he was not found in possession of the suit land, rather the same was in possession of the defendant /respondent. However, the title of the plaintiff/appellant to the whole of the land comprising Survey No.257 was held to have been proved by the appellant. Now, the sole point which needs to be determined is as to whether the incorrect averment regarding the factum of possession would bebar the plaintiff/appellant from bringing a fresh suit for possession of the suit land. The learned counsel for the appellant has stressed that the suit is hit under Order 11, rule 2 C.P.C. The plain reading of the aforesaid provisions of law would reveal that the same would apply only when the cause of action in both the suits is the same. In the instant case the cause of action in the second suit accrued to the plaintiff/appellant after the dismissal of his former suit. Thus, the cause of action in two suits being different, the principle under Order Ii rule 2, C.P.C. would not apply to the subsequent suit. We are in respectful agreement with the proposition enunciated in case Basanna v. Appa Rao A I R 1959 Mysore 227, referred to above, wherein it has been observed that dismissal of the previous suit for declaration of title and perpetual injunction on the ground that the plaintiff was not found in possession of the property, would not create a bar to the subsequent suit for possession for the simple reason that the cause of action in the subsequent suit would be deemed to have accrued to the plaintiff only after the dismissal of his former suit. It was further opined that the mere fact that the plaintiff made an incorrect averment in the former suit regarding the factum of possession would not bring his suit within the mischief of Order 11, rule 2, C.P.C. The said authority is applicable to the facts of the case in hand on all fours and we subscribe to the view expressed therein. In the light of what has been stated above we accept the appeal, set aside the judgments and decrees passed by the lower appellate Courts and restore the judgment and decree passed by the trial Court in favour of the plaintiff/appellant. Consequently, the suit of the plaintiff appellant stands decreed. AA./271/S.CA Appeal accepted.