Patkar, J.:—
The property in suit belonged to one Somchand, the father of the minor plaintiff. After Somchand's death, the mother of the plaintiff Amrutbai entered into an agreement to sell the property in suit for Rs. 10,251 to defendant No. 2, the appellant, in 1917, and applied to the High Court on the Original Side in February 1918 to be appointed guardian of her minor son, the plaintiff Amarchand, of his person and property. In March 1918, she was appointed guardian of the person and property, and permission was granted to her to complete the agreement. In April 1918, a sale-deed, Exhibit 64, was executed by her in favour of defendant No. 2. He carried out improvements and also fought out a litigation in respect of the land. After the death of the plaintiff's mother, the paternal uncle of the minor plaintiff brought a suit on the Original Side of the High Court in 1924 for setting aside the appointment of the mother as guardian and for rescission of the agreement of sale, and mesne profits. Defendant No. 2 filed a written statement taking exception to the jurisdiction of the Court and asking for compensation to be paid for the purchase price and for the improvements effected by him. He remained absent and an ex parte decree was passed in December 1925 setting aside the appointment of the plaintiff's mother as guardian and declaring the sale in favour of defendant No. 2 to be not binding on the minor.
The present suit was brought in the First Class Subordinate Judge's Court at Thana for possession of the property from defendant No. 1 who was a tenant on the land. Defendant No. 1 denied the plaintiff's ownership and contended that he was a tenant of defendant No. 2. Defendant No. 2 was made a party and contended that the decree of the High Court was without jurisdiction and not binding, that the present suit was barred by section 12 and Order II, rule 2, of the Civil Procedure Code, that it was time-barred as the defendant was brought on the record more than 12 years after his possession commenced, and that the plaintiff was not entitled to possession without paying the purchase money and adequate compensation for the improvements he had made.
The learned Subordinate Judge held that the suit was not barred by Order II, rule 2, that the suit was not barred by limitation, that the decree on the Original Side of the High Court was not without jurisdiction, that the defendant's contention was barred by res judicata, and that the plaintiff was entitled to possession of the suit property from the defendant without making any payment for improvements, though he recorded a finding that out of the sale-price, Rs. 8,551 made up of Rs. 3,300 which were paid for the satisfaction of the mortgage effected by the plaintiff's father on the property in suit, and Rs. 5,251 deposited with the Accountant General and withdrawn by the plaintiff's present guardian, constituted benefit to the minor plaintiff, but that claim ought to have been made under section 41 of the Specific Relief Act in the suit on the Original Side of the High Court, under section 39 of the Specific Relief Act.
The lower appellate Court held that the High Court on the Original Side had jurisdiction to set aside the sale and that decision operated as res judicata, that the decree of the High Court nullified the defendant's title and rehabilitated the plaintiff's title to immediate and unconditional possession, that the claim for compensation could not be put forward in the present suit for possession, and that the appellant might pursue his independent remedy, if any, in a different suit.
It is contended on behalf of the appellant that the present suit is barred under Order II, rule 2, that the decision of the High Court did not operate as res judicata, that the High Court decree is a nullity as the High Court had no jurisdiction to set aside the sale in respect of property which was situate beyond the jurisdiction of the Original Side, and that the suit was barred by limitation on account of the defendant's adverse possession.
The first question is whether the suit is barred under Order II, rule 2. It is contended that as possession was not asked for in the suit on the Original Side of the High Court, the present suit for possession in the First Class Subordinate Judge's Court is barred as no leave was granted under Order II, rule 2, sub-rule (3), of the Civil Procedure Code. The plaintiff could not have asked for possession in the suit on the Original Side of the High Court as the suit would have been “for land” and the property was situated outside the jurisdiction of the Original Side limits of the High Court. The cause of action in the previous suit was quite different from the cause of action in the present suit. The plaintiff could not have asked for possession until the sale was set aside. The property being outside the jurisdiction of the Original Side of the High Court, it could not have granted the relief for possession. In Payana Reena Saminathan v. Pana Lana Palaniappa it was held that although the claims in the two suits arose out of the same transaction, they were in respect of different causes of action, and therefore, the second action was not contrary to section 43 of the Code, corresponding to Order II, rule 2, of the Civil Procedure Code, and could be maintained. It was held that the section is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action even though they arise in the same transaction. The same view was taken in Shankar v. Dattatraya. The cause of action for possession would not arise until the sale-deed was set aside, and the claim for possession could not have been instituted on the Original Side of the High Court, as the suit would necessarily have been a suit “for land” within clause 12 of the Letters Patent. I may in this connection refer to the cases of Nathu Pandu v. Budhu Bhika and Krishnaji v. Sangappa, where it was held that though a claim for possession might have been made, it was not obligatory upon the plaintiff to make a claim for possession, in a suit for specific performance, and a second suit for possession would not be barred by res judicata or section 43 of the old Code or Order II, rule 2, of the present Civil Procedure Code. I think, therefore, that the present suit is not barred by Order II, rule 2.
The second question is whether the defendant's contentions are barred by the principle of res judicata by reason of the decision in the suit of 1924 on the Original Side of the High Court. The present suit is for possession of the land and the High Court on the Original Side could not have entertained this subsequent suit for possession, as the suit would have been “for land” and the whole of the land was outside the jurisdiction of the Original Side limits of the High Court. It is clear from section 11 of the Civil Procedure Code that the Court in which an issue is previously raised must be competent to try the subsequent suit or the suit in which the issue is subsequently raised: see Gokul Mandar v. Pudmanund Singh. The decisions of both the lower Courts have been arrived at by an erroneous view of the application of the principle of res judicata. If the decision in the previous suit on the Original Side of the High Court does not operate as res judicata, all the questions in the present suit must be investigated afresh on the evidence led in the present suit, and the decision of the lower Courts must be set aside on this ground alone.
But it is contended on behalf of the respondent that the sale-deed was set aside by the High Court, and, therefore, the defendant's title on the strength of the sale-deed is extinguished and he cannot re-agitate that question in the present suit and reliance is placed on the decision in the case of Rajaram v. Central Bank of India. The facts in that case are quite different from the facts in the present case. In that case a decree was passed in a suit which was good according to the law then existing, but the decree was sought to be set aside in a separate suit on the ground that the subsequent decision of a Full Bench altered the law, and it was held that a decided case could not be re-opened merely because the view that was taken on a question of law in that case was subsequently upset in another case between different parties. It appears that the decision of the Full Bench, that was relied upon before Fawcett, J. as creating a change in the view of the law, was in itself set aside by another Full Bench of the High Court in Hatimbhai Hassanally v. Framroz Eduljee, and on that ground the appeal against the judgment of Fawcett, J. was dismissed: see page 725 of the same volume.
Having regard to my view that the decision in the suit on the Original Side of the High Court does not operate as res judicata, it is not necessary to go into the question whether the High Court had jurisdiction to set aside the sale. Two reliefs were asked for in the High Court, first, for setting aside the appointment of the mother Amrutbai as guardian of the minor plaintiff, and, secondly; for setting aside the sale in favour of defendant No. 2 on the ground that Amrutbai was erroneously stated to be living within the jurisdiction of the Original Side of the High Court and that a false allegation was made as to the value of the property to the plaintiff's mother. The Original Side of the High Court had jurisdiction to set aside the order made by that Court under its inherent jurisdiction if it came to the conclusion that the order for appointment of the guardian was wrongly obtained. I think, so far as that relief was concerned, the Original Side of the High Court had jurisdiction, but in so far as the High Court declared that the sale-deed was invalid and operated to extinguish the title of the defendant to that land as purchaser, the suit would be, in my opinion, primarily a suit for the determination of title to immoveable property and would be a suit “for land” within the meaning of clause 12 of the Letters Patent, according to the Full Bench decision in Hatimbhai Hassanally v. Framroz Eduljee. The decree of the High Court so far as it decided any question of title between the plaintiff and the defendant in respect of immoveable property situate outside its Original Side limits was without jurisdiction and a nullity.
The learned District Judge, therefore, erred in holding that the decree nullified the defendant's sale and rehabilitated the plaintiff's title to immediate and unconditional possession. I have already reached the conclusion that the decision of the High Court did not operate as res judicata even apart from the fact that it had no jurisdiction to decide a question of title to land outside the limits of its Original jurisdiction. The learned District Judge further erred in relying on section 21 of the Civil Procedure Code and holding that the objection on the ground of jurisdiction must be considered to have been waived on the ground that it was not pressed before the High Court. The First Class Subordinate Judge is not an appellate or revisional Court from the decision of the Original Side of the High Court, and section 21, therefore, has no application. I think, therefore, that the decision of the suit on the Original Side of the High Court does not in any way bind the parties, and under sections 40 and 44 of the Indian Evidence Act, the defendant could prove that the decision was passed without jurisdiction. It would, therefore, follow that both the Courts erred in not going afresh into all the questions of fact in this suit on the erroneous ground that the decision in the High Court suit operated as res judicata.
It is urged on behalf of the respondent that compensation ought to have been asked for when the suit for rescission was brought under section 41 of the Specific Relief Act. On the other hand, it is urged on behalf of the appellant that if it is held that the sale-deed is not binding on the minor plaintiff in this suit and the plaintiff is awarded possession from the defendant, the question of compensation in the shape of the return of the purchase-money and for improvements can be gone into under sections 64 and 65 of the Indian Contract Act according to the decision in Harnath Kunwar v. Indar Bahadur Singh, or under section 51 of the Transfer of Property Act according to the decision in Harilal Ranchhod v. Gordhan Keshav, or section 41 of the Specific Relief Act according to the decision in Limbaji Ravji v. Rahi, and reliance was also placed on Mayne's Hindu Law, paragraphs 219 and 220. As the point has not been gone into by the lower appellate Court, and the necessary facts have not been found, it is unnecessary to deal with the question in this appeal. That question will have to be gone into by the lower appellate Court after remand.
The last point urged on behalf of the appellant is that the suit is barred by limitation on account of the adverse possession of the defendant. The plaintiff is still a minor and no question of adverse possession arises: see Phoolbas Koonwur v. Lalla Jogeshur Sahoy and Moro Sadashiv v. Visaji Raghunath.
I think, therefore, that the present suit is not barred by limitation, or by Order II, rule 2, and that the contentions of the defendant are not barred by the decision in the suit on the Original Side of the High Court.
The result, therefore, is that the decree of the lower appellate Court must be reversed and the case must be sent down to the lower appellate Court for decision on the merits as regards the other issues arising in the case. Costs in this appeal will be costs in the appeal in the lower appellate Court.
Barlee, J.:—One Somchand died in 1915 leaving a minor son, the plaintiff, and a widow Amrutbai. The last named contracted on behalf of her son to sell certain land at Ghatkopar to the defendant-appellant Sanghani. With the object of making his title secure she petitioned this Court for a certificate of guardianship and for express authority to complete the sale; and on March 16, 1918, the Court made an order appointing her guardian and authorising the sale. The sale was completed and Sanghani entered into possession.
Amrutbai died in or about 1923 and the minor's uncle as next friend filed a suit No. 4157 of 1924, in this Court to have it declared that the guardianship appointment was invalid and for its cancellation; for the cancellation of the authority to sell and for a declaration that the sale did not bind the minor, and for cancellation of the sale-deed. Mr. Sanghani appeared in person and protested that the Court had no jurisdiction. He put forward other pleas as well but did not take any further part in the proceedings; and, in consequence, the Court made an ex parte decree which embodied the various reliefs prayed for, in spite of the obvious defect in the plaint that the plaintiff was seeking equitable relief though, if his story were true, he should have sued for possession.
Having succeeded in this Court the guardian proceeded to file a suit for possession in the Thana Court. Mr. Sanghani relied on his sale deed, and pleaded that the suit was barred by Order II, rule 2; and that the High Court decree was a nullity since the land in suit was outside the town and island of Bombay. The Court, however, held that the defence was barred by the previous decree and refused to consider the case on the merits. His appeal to the District Court was summarily dismissed.
Obviously the most important question we have to answer is that of jurisdiction, and the answer depends on whether a suit to cancel a sale deed of land is to be classed as a suit for land. It has been argued that the cause of action was fraud, and that this Court had jurisdiction to cancel both the order made by itself and the authority to sell which it had given inasmuch as the fraud was committed in Bombay within its walls. That argument would be unimpeachable were it not that Amrutbai's death had put an end to her guardianship and authority and there was no existing order under the Guardians and wards Act to cancel. What the plaintiff wanted was to undo what the lady had done on the strength of the appointment and authority, and we have to consider whether the suit to cancel the sale deed was or was not a suit for land.
On this point we have been referred to the Full Bench case of Hatimbhai Hassanally v. Framroz Eduljee, and we need go no further. The actual decision was that a suit on a mortgage executed in Bombay of lands outside Bombay, was a suit to recover a debt and not for land, and it is not a direct authority. But the subject was exhaustively treated by all the Judges and the majority were of opinion that (in the words of Patkar, J. at page 692):
“The words ‘suit for land’ … mean a suit in which the substantial question is the right to land …” or “the primary object of which is to establish claims regarding title to or possession of immoveable property.”
Marten, C.J held at page 543 that a suit for a declaration and injunction ‘may in substance be a suit for land,’ and cited Vaghoji v. Camaji, a converse case to this; and Sudamdih Coal Co. Ltd. v. Empire Coal Co. Ld., where it was held that the term ‘suit for land’ extends to a suit for compensation for wrong to land where the substantial question is the right to the land. But apart from authority I am in full agreement with my learned brother. The decisive factor in the object of the litigation, and the real object in this case was to recover the land. The cancellation of the document of sale, if necessary, was merely a means to that end.
In consequence of this finding the appellant is entitled to defend the action on the merits and the case must go back. The discussion of the other points is academic and I shall refer to them only briefly. Mr. Thakor has no authority for his argument that a claim of the guardian of a minor can be time barred though the minor, who is given 3 years beyond the age of his attaining majority, is not barred. The point is concluded by Moro Sadashiv v. Visaji Raghunath and Norendra Nath Pahari v. Bhupendra Narain Roy.(4)
The learned counsel has relied also on Order II, rule 2, and contends that even if the plaintiff had a choice of Courts, he should have chosen the one at Thana, which could have given him all his reliefs, and that when he chose to sue in Bombay he debarred himself from claiming the relief of possession and cannot now seek it in a separate suit. Mr. Coyajee replies that the minor had no cause of action to sue for possession so long as the sale deed was in his way but had first to have it cancelled. The point is of no importance now that we have held that this Court had no jurisdiction; but, with respect, I am of opinion that Mr. Thakor's view is the correct one. The minor could have asked for both cancellation and possession on the ground of fraud and trespass and that is a very usual form of claim.
Lastly Mr. Coyajee has cited Rajaram v. Central Bank of India, but I agree with my learned brother that this decision does not prevent our deciding this case in favour of the appellant and remanding it for a hearing on the merits. The plaintiff Rajaram had mortgaged lands in Andheri and on a suit in this Court by the mortgagee Bank an order for sale was made. At the time the Court was justified by the ruling in Holkar v. Dadabhai Cursetji Ashburner in assuming jurisdiction. Holkar v. Dadabhai Cursetji Ashburner was upset by the Full Bench decision in India Spinning & Weaving Co. Ltd. v. Climax Industrial Syndicate, which ruled that a suit by a mortgagee for sale was a suit for land. Rajaram, therefore, sued in this Court for a declaration that the decree against him was a nullity. But Fawcett, J. decided against him and held that the Court passing the decree for sale was competent to deliver the judgment it did within the meaning of section 44 of the Indian Evidence Act and had sufficient jurisdiction to bring the case within section 11, Civil Procedure Code. I need not refer to the reasoning of the learned Judge since it is obvious that the facts were materially different from those in our case. In effect Fawcett, J. was being asked to alter a decree of his own Court on the ground that it was wrongly decided. That he had no power to do. Order XX, rule 3, expressly prohibits a Judge from altering a judgment once signed except as provided by section 152 or on review, and there was no mere clerical error to be corrected and no ground for review. It was not permissible for the plaintiff to avoid this express prohibition by filing a plaint instead of a review petition. Nor has a Judge power to hear an appeal against his own decision even if the appeal petition is disguised as a plaint. But here the Thana Court was not asked to alter a decree of the High Court. It was merely asked to ignore it on the ground that it was not a decree of a competent Court and section 44, Indian Evidence Act, and section 11, Civil Procedure Code, by implication empower Courts to ignore orders issued by Courts without authority. If the Thana Court was bound to accept the High Court decree the said sections are meaningless and useless.
Decree reversed.
J.G.R