Veerana Pillai v. Muthukumara Asary

The Judgment of the Court was delivered by

Subrahmania Ayyar, J.:— The plaintiffs in the present suit had brought a previous suit, Original Suit No. 510 of 1898 on the file of the District Munsit's Court of Madura, against nine persons, inclusive of the first two defendants in the present suit, who were the eighth and ninth defendants therein. The plaint in that suit, in effect, stated that on the 9th August 1861, Suppan Asari, father of the plaintiffs, had for the sum of Rs. 245, stipulated to be repaid in three years, obtained from Palani Kumaru Pillai, grandfather of the then first and third defendants and father of the second defendant's husband, and Muthukaruppa Pillai, father of the then fourth and fifth defendants, a mortgage of the lands now in dispute, which had vested in the mortgagors to the exclusion of their brother. The then 6th defendant, father of the seventh defendant; and after certain other averments, to which reference will be made later on, prayed for a decree for repayment of the mortgage amount as well as of certain other sums subsequently advanced on the condition that they were to be repaid along with the mortgage amount and for an order for sale of the mortgaged property.

That suit was eventually, so far as appears, dismissed on Jthe ground that the alleged mortgage was a purely usufruotuary mortgage which contained no covenant to pay and that being so, no suit for the money or for the sale of the land could be maintained.

In the present suit the plaintiffs refer to their alleged title to the lands in question as mortgagees, much in the same terms as in the previous plaint and proceed to state that the present first defendant (eighth formerly) though let into possession as a tenant by the plaintiffs is setting up a title in himself and that he and the second defendant (ninth formerly), who got into possession through him, refuse to surrender the land; and pray for a decree for possession of the lands and mesne profits. The plaint states as an alternative ground for the reliefs claimed that, even should the plaintiffs fail to make out the letting alleged, they are entitled to recover on their title as usufructuary mortgagees under the said instrument of the 9th August 1864.

The lower Appellate: Court has held that the present suit was not barred by the previous suit.

On behalf of the appellants (first and second defendants) this conclusion was impeached, it being urged that the suit was barred under the provisions of section 43, Code of Civil Procedure, or section 13, Explanation II, or both.

The law as to questions of bar under these provisions was discussed at great length in Ramaswami Ayyar v. Vythinatha Ayyar (1), and all the previous important authorities bearing on the subject were fully reviewed and examined, and I need only pay that entirely concur in the conclusions arrived at there. Though I did share in the view that some of the observations of the Judicial Committee in Kamewar Pershad v. Rajkumari Ruttan Koer (2) warranted the nation that Explanation. II to section 13 of the Code of Civil Procedure had introduced a change; in the law of res judicata in so far as plaintiffs were concerned so as to make it incumbent on them to make every cause of action relating to the property in litigation and existing at the time of the suit, a ground of attack, unless such a course was likely to lead to confusion, and whatever may be the correct interpretation to be put upon the language of the Judicial Committee in the above case had it stood by itself, yet, having regard to other pronouncements by the same tribunal re-affirmed subsequently to the said decision, such nation can no longer be taken to be well founded. Consequently, speaking for myself, anything in the language, used in the judgment in Arunachalam Chetti v. Meyyappa Chetti (3) inconsistent with the view of the law as expounded in the recent decision of this Court above referred to can no longer be treated as of any authority.

Turning now to the appellants' contentions here, there can be no doubt that they are unsustainable. The rights which were the subject of litigation in the suit of 1898 were an alleged right to recover a sum of money on a covenant which, it was found, did not exist and an alleged right accessorial to such covenant, viz., a right to an order for sale. These rights are of course; absolutely different from what are now sought to be made the subject of adjudication, viz. The right to eject a tenant and another claiming through him, on the ground of the tenant's denial of the landlord's title and the right of a mortgagee to possession under a purely usufructuary mortgage, which latter necessarily negatives a right to recover money on a covenant to pay, or to obtain an order for sale. The rights in respect of which the plaintiffs now demand judgment, in other words. The causes of action now sued upon, being thus 1 entirely different from the rights or causes of action to which the previous suit related, section 43 of the Civil Procedure Code, which simply enjoins that the whole claim arising out of the same cause of action should be included in the suit, can have no application. Next, as to the objection raised with reference to Explanation II to section 13. No doubt, in the plaint in the suit of 1898 reference was made among other things, to the possession of the mortgaged lands by the plaintiffs, to a letting by them, of the lands to the then eighth (present first) defendant, and to the latter denying his alleged landlord's title and setting up a claim to the property himself. But, though these averments may have been relevant as a reason for the inclusion of the eighth and ninth defendants in the suit in order to get an order for sale binding on them, yet it is manifest that in that suit. The plaintiffs could not, on the basis of those averments, have prayed for a decree for possession from the present defendants, since that, would have been a clear case of misjoinder of causes of action and consequently the causes of nation now relied on were not, with reference to the previous suit, “matters which might and ought to have been made grounds of attack” within the meaning of Explanation II to section 13 of the Civil Procedure Code, even if the interpretation to be put on Kameswara Pershad's case were different from that adopted in the recent second appeal above referred to.

The present objection on behalf of the appellants fails all the more, since, according to the decision of this Court already referred to, that explanation does not render it incumbent on a plaintiff to combine as grounds of attack every cause of action he may have at the date of the suit in respect of the property sued; for, even if it were possible for the plaintiffs to have, consistently of with established rules of pleading, claimed the present reliefs also in the former suit.

The appeal, therefore, in my opinion, faffs and I would dismiss it with costs.

Boddam, J.:— I agree that the plaintiffs' suit is not barred under section 13 or section 43, Civil Procedure Code. It is not necessary for me to state the facts of the case of to do more than state my conclusions as shortly as possible after the very full judgment of Sir Subrahmania Ayyar, J.

The cause of action in the former suit was to recover the mortgage amount by sale of the mortgaged premises. The present suit is a suit to recover possession of the land from persons who are in wrongful possession.

Although the first and second defendants in the present suit were joined as defendants in the first suit, as persons claiming an interest in the land. The present claim formed no part of the cause of action in that suit nor was it a cause of action upon which the plaintiffs could rely in the alternative otherwise in support of the relief they sought in that suit. The cause of action in the present suit is totally distinct and different and therefore the suit is not barred. The appeal should he dismissed with costs.