P L D 1953 Lahore 41 (PLP)

KAIKAUS, J.‑--One Nur Hussain having died his father Sher Khan filed the suit out of which this second appeal arises for 3/4th share as residuary under Muhammadan Law of some cattle, grain and cash, against Mst. Rahmtan, the widow of the deceased. The sole point involved is whether the suit is barred under Order 2, rule 2 of the Code of Civil Procedure on account of a previous suit brought by the present plaintiff to recover his share of a debt due to the deceased from one Nawab, in which Mst. Rahmtan tool was impleaded as a defendant. The trial Court found the suit to be so barred. The learned District Judge disagreed and decreed the suit. Mst. Rahmtan has appealed. According to Order 2, rule 2 of the Code of Civil Procedure, this suit will be barred if the cause of action in both the suits is the same. In the previous suits the allegations were that Nawab had purchased a bullock from the deceased and had not yet paid the price. Decree in that suit was asked for 3/4th price against Nawab and it was prayed in the alternative that if Mst. Rahmatan be found to have received the debt a decree may be passed against her. The present suit is founded on the allegations that the cattle, grain and cash, detailed in the plaint belonged to the deceased and are in the possession of the defendant who refuses to give the plaintiff' his 3/4th share. It is conceded by the learned counsel for the appellant that had the previous suit been brought against Nawab alone, no question of Order 2, rule 2 of the Code of Civil Procedure would arise. He contends that as the plaintiff had brought against Mst. Rahmtan a suit for part of his share of inheritance he could not bring a second suit for the other part. A right of suit arises on the actual or apprehended infringe?ment of a right. I regard it as axiomatic that whenever a particular right is infringed there arises a cause of action complete in itself. To hold otherwise would be to lay down that a partial cause of action can exist and though a suit could be brought the cause of action would yet be not complete. Such a proposition would be absurd. It may be explained, however, that (t) a continuous un-interrupted infringement of the same right would be only one cause of action, as where a person gives physical injuries to another each blow would not constitute a separate cause of action; (2) by the explanation to Order 2, rule 2 of the Code of Civil Procedure, successive breaches of the same obligation are to be treated as one cause of action, though in fact they would constitute separate causes of action, vide Shebaits of Sree Sree Iswar Lakshmi Janardan Deb Thakur, Jiban Krishna Ghose and others v. Santimoyee Devi and others (A I R 1948 Cal. 366). The above explanations do not affect the present case and are not relied upon by the counsel for the appellant. I state them only that I may not be misunderstood. Turning to the facts of this case it is apparent that the infringements of right are distinct. So far as the movable property now in suit is concerned it was in the possession of the deceased at the time he died and as the defendant was living with the deceased she acquired possession of it as soon as he died. The cause of action in respect of these arose on account of the detention almost immediately on the death of the deceased. So far as the debt due from Nawab is concerned, the cause of action with respect to it arose (if at all) when the appellant received the amount of debt from Nawab. Had a suit been brought by the plaintiff immediately on the death of Nawab, before this money had been received by Mst. Rahmtan, he could only have sued for the movables now in suit and not in respect of the amount of the debt. Was the cause of action with respect to the movables now in suit not one complete cause of action just after the death of Nur Hussain? It was, and the new infringement of right by receipt of money from Nawab could not amalgamate with it and be trans?ferred into a single cause of action. I may explain that even with respect to all the movables now in suit, a cause of action would not be one unless they had been acquired in a single transaction. Quite apart from authority, therefore, I would have no hesitation in holding that the two causes of action are distinct. There is, however, authority, binding on me, which fully applies to the present case. The question, as to when a suit for apart of inheritance will bar a suit for another part of the same inheritance, has been answered by their Lordships of the Privy Council in two cases, Pittapur Raja v. Suriya Rau and others (AIR 1949 P C 78) and Muhammad Khalil Khan and others v. Mahboob Ali Mian and others (A I R 1949 P C 78), in the first the suit being held to be not barred while in the second it was held barred. In I L R 8 Mad. 520, Suriya Rau and others had become entitled under the will of one Bhavayyamma to some immovable property as well as to some personal property. Of the immovable property they were in possession but were turned out by a rival claimant who also Lad in his possession the movables. Suriya Rau and others brought at first a suit only in respect of the immovable property and having obtained a decree brought another suit against the same person in respect of the movables. The plea of Order 2, rule 2 of the Code of Civil Procedure was rejected and the reason for this rejection will best appear from the observations which their Lordships made in A I R 1949 P C 78 with respect to this case. They say: "In that case the plaintiff sued to recover immovable property in consequence of having been improperly turned out of possession and afterwards sued to recover from the same defendant movable property in consequence of its wrongful detention. Their title to the said estate as well as to the half share of the personality now sued for was under a will of one Bhavayamrna. On the facts, their Lordships held that the causes of action in the two suits were distinct. They held that:‑ 'The claim in respect to the personality was not a claim arising out of the cause of action which existed in consequence of the defendants having improperly turned the plaintiffs out of possession of Viravaran (Zamindari property). It was a distinct cause of action altogether and did not arise at all out of the other.' `Referring to the above case, Lord Buck-master stated the true principle concisely as follows in Muhammad Hafiz v. Muhammad Zakarriya (AIR 1922 P C 23). " ....the cause of action is the cause of action which gives occasion for and forms the foundation of the suit, and if that cause enables a man to ask for larger and wider relief than that to which he limits his claim he cannot afterwards seek to recover the balance by independent proceedings". In the first case after saying that the one cause of action did not arise out of the other their Lordships proceed:‑ "It is not like the case of one conversion of several things. There the act of conversion of the several things is one cause of action, and you cannot bring an action for the con?version of another. The conversion of the whole is one claim and one cause of action." In the present case cause of action in respect of the first suit arose out of an illegal receipt of detention of money by the defendant and in the second suit by illegal detention of the movables. Even if the first be also regarded only as an illegal detention it was still not a single act of conversion of debt as well as movables. In the second case A I R 1949 P C 78, the plaintiffs claiming as heirs of the same person brought at first, a suit for a part of the inheritance called the Oudh property and then another suit for another part called the Shahjahanpur property. Their Lordships found the cause of action in both the suits to be the same because it arose out of the same transaction. This is what they say "Having regard to the conduct of the parties their Lordships take the view that the course of dealing by the parties In respect of both properties was the same and the denial of the, plaintiffs' title to the Oudh property and the possession of the Shahjahanpur property by the defendants obtained as a result of that denial formed part of the same transaction. On this question, the learned Judges of the High Court have expressed their opinion in two places in their judg?ments as follows:‑ `In the case before us the trespass on title or slander of tile in the case so for as the Oudh suit was concerned was not distinct and different either in point of time or in point of character from tile trespass on possession in the case of the Shahjahanpur property... Here in the present case we find that the two trespasses, one on the Shahjahanpur property and other on the Oudh property, were similar in character and formed part of the same transac?tion and the evidence to prove the facts which it was necessary for the plaintiffs to prove ...was the same and the bundle of essential facts was also the same: "Their Lordships are prepared to accept the above view". Their Lordships also laid down a criterion that the cause of action would be the same if evidence for both the suits were the same and from this point of view also reached the same conclusion. Applying the above mentioned tests the present suit is not barred. The learned counsel for the appellant has drawn my attention to the fact that in the copy of the decree sheet attached to his appeal, the decree is shown to be one for Rs.

800. I have seen the original judgment and I find that the amount stated is Rs.

600. The decree against the appellant shall, therefore, be for Rs. 600 and not Rs. 800 as in the decree sheet. The appeal is dismissed with costs. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.