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Case Number

Second Appeal No. 413 of 1945

Advocates

S.C. Das
A.N. Shukla

Judges

Malik, C.J

Acts

provisions of Section 47 of the CPC.4.

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Smart Summary

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

This suit arises from a dispute over four plots of land: Nos. 725, 730, 739 and 856. The family was joint. In 1913 Kunj Behari filed suit No. 16 of 1913 for partition against the sons and grandsons of Ram Autar (Ram Autar having died). The 1913 suit alleged a joint Hindu family and that the properties were joint family properties; the suit was decreed on 28-4-1913 and Kunj Behari was awarded a decree for partition of a one-half share in the properties specified in the first list. Plot No. 856 was included in that list, but, although a decree for a half share was given, the final decree omitted Plot No. 856 and it was not divided; the plaintiff never amended the decree nor obtained possession of the plot. The learned Munsif in 1913 held that the plaintiff had "utterly failed to prove possession within limitation."

The defendants in the 1913 proceeding had denied joint family status, pleaded that Ram Autar had separated, and claimed adverse possession of the properties in the first list. Despite the 1913 decree in favour of the plaintiff, the defendants continued in possession of at least some plots from 1913 up to the date when the later suit was filed in 1945. The lower Court dismissed the later suit (and the present appeal challenges that dismissal).

Legal Issues Presented

Whether the plaintiff may maintain a fresh suit for partition in respect of property (especially Plot No. 856) after obtaining a decree in 1913 on the same cause of action and same title, when the plaintiff did not obtain possession or amend the decree to include the omitted plot.
Whether the defendants' long possession (from 1913 to 1945) can amount to prescription/adverse possession against the plaintiff despite the 1913 decree in the plaintiff's favour.
Whether Plot No. 739 was joint family property — specifically, whether it was included within the sale deed Ex. A1 (dated 6-1-1883) relied on by the plaintiff.
Whether Order 2 Rule 2 of the Civil Procedure Code (CPC) bars a second suit where the plaintiff omitted certain items from an earlier partition suit, and if so, whether an accidental omission (sahwan) is covered by O.2, R.2.

Arguments of the Parties

Plaintiff's Arguments

The plaintiff (through learned counsel) urged that he had a recurring cause of action for partition and that failure to take advantage of the previous partition decree did not bar a fresh suit for partition.
Regarding plots Nos. 725 and 730 the plaintiff argued he was entitled to a partial partition and that omission from the prior suit did not deprive him of a right to a share or to bring a second suit; counsel contended that O.2, R.2 of the CPC applies only to deliberate omission and not to accidental mistakes (sahwan).
Counsel relied on authority — Mansaram Chakravarti v. Ganesh Chakravarti — for the proposition that a party may sue for partition of part of jointly held properties, and on other High Court decisions (for example, Venkata Chandikamba v. Veswanadhamayya) to support exceptions where the plaintiff lacked knowledge of facts.

Defendants' (and Lower Courts') Positions

In the earlier 1913 proceedings the defendants denied joint family status, pleaded that Ram Autar had separated, and asserted adverse possession and ouster in respect of the properties in the first list.
The lower Courts expressed the view that because the plaintiff was a co-sharer the defendants had to prove an ouster, and in the absence of proof of ouster adverse possession would not be established even after long occupation; nevertheless, the plaintiff's claim with respect to Plot No. 856 had been dismissed under Section 47 of the CPC in those proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mansaram Chakravarti v. Ganesh Chakravarti, 16 Ind Cas 383 (Cal)	Consideration whether a tenant-in-common who sues for partition of part of the properties may sue later for the remainder; observations that defendants may object to scope of suit and claim omitted properties left joint by consent.	The Court noted counsel's reliance on observations in the body of the judgment but disagreed with those observations; the Court did not adopt the view that omitted properties are left joint by consent where both parties regarded them as not joint.
Darbari Lal v. Gobind Saran, AIR 1924 All 902	Illustrates that where the cause of action is a single event (e.g., death of a widow) only one suit is maintainable for recovery of the entire property even if transfers occurred under different documents.	The Court drew assistance from this decision to support the proposition that in a joint Hindu family partition suit the cause of action is single and every item should be included in the claim.
Anant Subrao Nadgir v. Mahableshwarbhat Gurunath Bhat Shindgi, AIR 1931 Bom 114 at p.116	Similar principle to Darbari Lal regarding single cause of action and that one suit may be necessary for the whole claim.	Cited as reinforcing the view that a claim for partition arising from a desire to break the joint status is one cause of action and requires inclusion of all items of joint property in the claim.
Venkata Chandikamba v. Veswanadhamayya, AIR 1936 Mad 699	Authority relied on for the proposition that Order 2 Rule 2 may not apply where the plaintiff did not know the relevant facts and therefore could not have sued in the earlier proceeding.	The Court recorded that this authority and others were cited by counsel, but distinguished the present case on its facts because the plaintiff did not allege lack of knowledge of legal rights in the earlier suit.
Batul Kunwar v. Munni Lal, 32 All 625	Division Bench ruling that if the plaintiff was not aware of his rights when he filed the previous suit, it cannot be said he omitted a portion of his claim.	The Court noted this authority but stated it was unnecessary to decide the general point because the plaintiff had not pleaded lack of awareness of rights; thus Batul Kunwar did not help the plaintiff on the facts before the Court.
Ganga Narain v. Misir Ramesh Chand, 1944 Oudh W.N. 23	Decision of the Court addressing the effect of accidental omission under O.2, R.2 and related principles.	The Court agreed with the opinion expressed in this decision and held that accidental omission does not avoid the operation of O.2, R.2 in the circumstances of the present case.
Moonshee Buzloor Ruheem v. Shumsheroonnissa Begum, 11 Moo Ind App 551 (P.C.)	Authority stating that clear and positive words of the law (here, O.2, R.2 language) include accidental or involuntary omissions as well as deliberate relinquishments.	The Court relied on the cited observations to support the conclusion that O.2, R.2 applies to accidental omissions as well as deliberate ones when the statutory language is clear.

Court's Reasoning and Analysis

The Court proceeded plot by plot and by sequential legal reasoning:

Plot No. 856:
- In 1913 the plaintiff obtained a decree for a half share including Plot No. 856, but the final partition decree omitted this plot and it was not physically divided; the plaintiff never amended the decree nor obtained possession.
- The Munsif had found the plaintiff failed to prove possession within limitation in 1913. Although both lower Courts thought defendants needed to prove ouster because the plaintiff was a co-sharer, the present Court held that the defendants, by continuing in possession from 1913 to 1945, could prescribe a title by lapse of time against the plaintiff.
- The Court rejected the plaintiff's contention that a recurring cause of action permitted a fresh suit on the same title and cause of action that had already been adjudicated in 1913. Because the 1913 suit was based on the same title and cause of action, the plaintiff could not maintain a separate suit for the omitted plot in 1945; accordingly the claim to Plot No. 856 was rightly dismissed.
Plot No. 739:
- The plaintiff claimed Plot No. 739 was joint family property purchased by Ram Autar under Sale Deed Ex. A1 dated 6-1-1883. The lower Courts found this plot was not included in the sale deed and held the plaintiff failed to prove it was joint family property. The present Court treated this as a finding of fact and held the plaintiff's claim with respect to Plot No. 739 must fail.
Plots Nos. 725 and 730 (O.2, R.2 issue):
- The plaintiff's suit as to these plots was dismissed under Order 2 Rule 2 of the CPC for omission in the earlier suit.
- The plaintiff argued partial partition was permissible and that O.2, R.2 should not apply to accidental omissions; counsel relied on Mansaram and other authorities.
- The Court analyzed the nature of partition suits in a joint Hindu family context and distinguished the position of tenants-in-common: in a joint Hindu family where a member seeks to break up the joint status and obtain his share, the cause of action is single and must include every item of joint family property; the Court cited Darbari Lal and the Bombay High Court decision (Anant Subrao Nadgir) in support.
- Turning to O.2, R.2, the Court quoted its language and considered authority on whether the rule applies where a plaintiff lacked knowledge of facts. The Court acknowledged cases holding omission may not be treated as such where plaintiff lacked awareness (e.g., Venkata Chandikamba, Batul Kunwar), but found those cases inapplicable because the plaintiff here did not plead ignorance of his rights; instead he alleged an accidental omission (sahwan).
- The Court relied on the Judicial Committee decision (Moonshee Buzloor Ruheem) and its own prior decision (Ganga Narain) holding that the plain statutory words of O.2, R.2 include accidental omissions. Applying those principles and the facts (plaintiff alleged mere accident, not absence of knowledge), the Court held the plaintiff was barred by O.2, R.2 from bringing a second suit for the omitted plots.

Holding and Implications

Holding: The appeal is DISMISSED (the Court dismissed the plaintiff's claims in respect of the disputed plots and dismissed the appeal with costs).

Implications:

Direct effect: The plaintiff's fresh claims for partition in respect of Plots Nos. 725, 730, 739 and 856 were rejected for the reasons given: Plot 856 — plaintiff cannot maintain a second suit on the same cause of action and defendants' possession from 1913 to 1945 could prescribe title; Plot 739 — failure of proof that it formed part of the sale deed and hence not joint family property; Plots 725 and 730 — barred by O.2, R.2 of the CPC because the plaintiff omitted them in the earlier suit and the omission (even if described as accidental) did not avoid the bar where lack of knowledge of rights was not pleaded.
Broader precedent: The Court applied existing authorities and statutory language to reach its decision; the opinion does not purport to establish a novel rule of law beyond applying cited precedents and statutory interpretation to the facts of this case.

Disposition: Appeal dismissed (with costs).

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Nageshar Tewari v. Dwarka Prasad

1. This is a plaintiff's suit (appeal?) against a decision of the lower Court dismissing the plaintiff's suit for partition of four plots in which the plaintiff claimed that he had under-proprietary rights. The plots in dispute are Nos. 725, 730, 739 and 856. A small pedigree will help in understanding the facts of the case.

2. The family was joint and in the year 1913 Kunj Behari filed a suit No. 16 of 1913 against the sons & grandsons of Ram Autar, Ram Autar having died, for a partition. The plaintiff alleged that he formed a joint Hindu family with the defendants and the properties in suit were joint family properties. The suit was decreed on 28-4-1913, and the plaintiff was given a decree for partition of a one-half share in the properties specified in the first list. It may be mentioned that the contesting defendants had denied that the family was joint and had pleaded that Ram Autar had separated and that they were in adverse possession of the properties in the first list. Plot No. 856 was included in the first list and the plaintiff was given a decree for a half share in the said properties. The other items in that list were partitioned but somehow this plot was left out with the result that in the final decree for partition plot No. 856 was not mentioned at all and it was not divided. The plaintiff never got the decree amended nor did he ever get possession of the plot. On the question of possession learned Munsif held as follows:

“The plaintiff has utterly failed to prove possession within limitation.”

3. Both the Courts, however, by reason of the fact that the plaintiff was a co-sharer, expressed the opinion that the defendants had to prove ouster and, in the absence of proof of ouster, adverse possession was not established even though they may have remained in possession of the plot for a long time. The plaintiff's claim with respect to this plot was, however, dismissed by reason of the provisions of Section 47 of the CPC.

4. Learned counsel has urged that the plaintiff had a recurring cause of action for partition and that the mere fact that his client had not taken advantage of the previous partition decree did not debar him from filing a fresh suit for partition. If the plaintiff's title to the property had been recognised and he had been in actual possession of the plot he might have had a recurring cause of action, but his suit for partition in 1913 was based on title and he got a decree. On the same cause of action and on the basis of the same title he cannot now bring a separate suit. I am not inclined to agree with the lower Courts that in the circumstances of the case set out by them in their judgments the defendants could not be deemed to have prescribed a title as against the plaintiff by lapse of time. Even in the suit of 1913 the defendants had claimed that they were in adverse possession of the property. Their plea no doubt failed and the suit was decreed, but even after the decree they remained in possession and they have been in possession from 1913 right upto the date when the suit was filed in 1945. In my view the plaintiff had no right to bring a second suit and his claim in respect of this plot was rightly dismissed.

5. As regards plot No. 739, the plaintiff claimed that this was joint family property as it had been purchased by Ram Autar on behalf of the joint family under a sale deed Ex. Al, dated 6-1-1883. The lower Courts have recorded a finding that this plot is not included in the sale deed and that the plaintiff had failed to prove that it was joint family property: This is a finding of fact. The plaintiff's claim with respect to this plot must, therefore, also fail.

6. As regards the two plots Nos. 725 and 730, the plaintiff's suit had been dismissed by reason of the provisions of O. 2, R. 2 of the CPC. Learned counsel has urged that the plaintiff was entitled to a partial partition and that the mere fact that he had left out some properties in the previous claim his right to a share therein and a right to bring a second suit for partition was not barred. His further contention is that O. 2, R. 2 of the CPC, only applies to a case of deliberate omission & not to a case of an accidental mistake. Reliance is placed on a decision of the Calcutta High Court in — ‘Mansaram Chakravarti v. Ganesh Chakravarti’, 16 Ind Cas 383 (Cal) (A). In that case a suit for partition of properties was filed on behalf of the plaintiff and the suit was decreed. Certain plots were not included in the previous suit for partition and in respect of those plots a second suit was filed. The question formulated by the learned Judges, Sir Ashutosh Mookerjee and Mr. J. Beachcroft, was as follows:

“The question, therefore, arises, whether one of the two tenants-in-common, who has sued for partition of a part of the properties jointly held by them, is at liberty to bring a suit for partition of the remainder of the properties.”

7. It may be open to tenants-in-common to have each item of property partitioned at their choice. The point has not arisen in this case and I need not therefore express any opinion.

8. Learned counsel has, however, relied on certain observations in the body of the judgment to the effect that when a plaintiff sues for partition of a part of the joint property it is open to the defendant to take exception to the scope of the suit and to insist upon the inclusion of all properties jointly owned by the parties, and that if he fails to take exception to the scope of the suit, the inference is legitimate that the properties not included are by consent of parties left joint. With great respect to the learned Judges I am not inclined to agree with the view expressed by them. It may as well be assumed that the plaintiff having omitted to include, a certain item of property in his claim he was not claiming that property was joint family property and as the defendants were also of the same view that it was not joint family property they did not raise the plea that the suit was a suit for partial partition and must fail.

9. In case of a tenant-in-common it may not be possible to say that the cause of action for partition, of every item of the property arises at the same time but in a suit where a member of a joint Hindu family to break up the joint status wants the joint family property to be divided the cause of action for partition is one and the same and he must, therefore, include every item of the property in his claim. No case has been cited at the Bar but some assistance may be drawn from a decision of this Court in — ‘Darbari Lal v. Gobind Saran’, AIR 1924 All 902 (B), where it was held that on the death of a Hindu widow if a reversioner challenges the alienation made by her & claims-possession of the property transferred by her the cause of action is the death of the widow and only one suit is maintainable for recovery of the entire property, though the widow might have transferred them under various documents. To the same effect is the decision of the Bombay High Court in — ‘Anant Subrao Nadgir… v. Mahableshwarbhat Gurunath Bhat Shindgi….’, AIR 1931 Bom 114 at P. 116 (C). A claim for partition in this suit arose by reason of Ram Autar's desire to break up the joint status and to get his half share in the property. It cannot be said that in such a suit there was a separate cause of action for each item of joint family property.

10. Coming to the next question whether a suit would be barred under O. 2, R. 2 of the CPC, if the plaintiff had made accidental omission. A large number of cases have been cited on the point. It is not necessary to discuss them all. In the case before me the plaintiff had not pleaded that he did not know that the plots that he was now claiming were joint family property. His case was that by accident these plots were left out in Kunj Behari's suit in the year 1913. The language of O. 2, R. 2, is as follows:

“Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of this claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.”

11. There is some divergence of opinion on the point whether the sub-rule would apply to a case where a plaintiff had no knowledge of the facts. It has been held in some cases that where the plaintiff did not know the facts and was, therefore, not in a position to put forward the claim it could not be said that he had omitted to sue in respect of any portion of his claim. Learned counsel has cited in support of his contention the case of — ‘Venkata Chandikamba v. Veswanadhamayya’, AIR 1936 Mad 699 (D), and several other cases of other High Courts.

12. The point is also covered by a Division Bench ruling of this Court in — ‘Batul Kunwar v. Munni Lal’, 32 All 625 (E). In that case Stanley, C.J, and Griffin J., held that if the plaintiff was not aware of his rights at the time when he filed the previous suit it could not be said that he had made an omission with regard to a portion of his claim. It is not necessary in this case to express any opinion on the point as this is not a case where the plaintiff has alleged that he was not aware of his legal rights. The allegation in the plaint was that he by accident (sahwan) left out from his previous suit the four plots now claimed by him. That point is covered by a decision of this Court in — ‘Ganga Narain v. Misir Ramesh Chand’, 1944 Oudh W.N 23 (P), and I agree with respect with the opinion expressed in that case. Reliance was placed on a decision of their Lordships of the Judicial Committee in — ‘Moonshee Buzloor Ruheem v. Shumsheroonnissa Begum’, 11 Moo Ind App 551 (P.C) (G), where their Lordships had said:

“If the words of a law are clear and positive, they cannot be controlled by any consideration of the motives of the party to whom it is to be applied, nor limited by what the Judges who apply it may suppose to have been reason for enacting it. The words of the law, are, “If a plaintiff relinquish or omit to sue for any portion of his claims”. It plainly includes accidental or involuntary omissions as well as acts I of deliberate relinquishment.”

13. These observations as well as the decision mentioned above fully cover the point raised and the plaintiff must, therefore, be deemed to be debarred under O. 2, R. 2 of the CPC, as he must be deemed to have knowledge of his rights and had by mistake omitted to claim any relief with regard to these plots. The result, therefore, is that this appeal must fail and is dismissed with costs.

B/R.G.D

14. Appeal dismissed.

Nageshar Tewari v. Dwarka Prasad

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's Arguments

Defendants' (and Lower Courts') Positions

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Nageshar Tewari v. Dwarka Prasad

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