Chatterji, J.:— This appeal, which originally came up for hearing before my learned brother was referred to by him to a Division Bench. The relevant facts are briefly these: One Muneshwar Singh had about five bighas of land. On 13th January 1930, he executed three sale deeds in respect of all these lands, one for Rs. 600, another for Rs. 200 and the third for Rs. 300 in favour of defendants 1 to 4. Muneshwar died on 19th January 1930. In 1933 the plaintiffs, claiming to be his next heirs, brought a suit to set aside two of the sale deeds, namely those for Rs. 600 and Rs. 200 and to recover possession of the properties covered by them on the allegation that they were executed without consideration and under the undue influence of defendants 1 to 4. From that suit however one plot No. 623 covered by the sale deed of Rs. 600 was omitted. The suit was decreed. Thereafter in 1935 the plaintiffs brought the present suit to set aside the sale deed for Rs. 300 substantially on the allegation that it was executed without consideration and under undue influence, and with a prayer for confirmation or, in the alternative, recovery of possession over the properties covered by this sale deed as also plot No. 623 which had been omitted from the previous suit. Defendant 5 was impleaded as a subsequent transferee from defendants 1 to 4 under a zarpeshgi deed. The suit was defended on various grounds, one of them being that it was barred under the provisions of O. 2, R. 2 of the CPC. The Munsif who tried the suit found that the sale deed in question was executed under undue influence and without consideration; but he dismissed the suit, holding that it was barred under under O. 2, R. 2, not only in regard to plot No. 623 but also with regard to the lands covered by the sale deed for Rs. 300. In the plaint it was alleged that the plaintiffs were in possession of the disputed lands but were obliged to bring the suit as the defendants had threatened to interfere with their possession. The Munsif found that this allegation was altogether false and the plaintiffs were never in possession of the lands. On appeal the findings of fact of the Munsif do not appear to have been challenged and the only question which was raised before the Subordinate Judge was whether the suit was barred under O. 2, R. 2. He concurred with the Munsif so far as plot No. 623 was concerned; but with regard to the lands covered by the sale deed for Rs. 300 he came to a different finding and, reversing the Munsif's decision, passed a decree in favour of the plaintiffs. Hence this second appeal by the defendants. The only question for decision in this appeal is whether the plaintiffs' claim with regard to the lands covered by the sale deed for Rs. 300 is barred under O. 2, R. 2. That rule provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but if he omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
2. The whole controversy turns on the meaning of the expression “cause of action.” As explained in numerous decisions, “cause of action” means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved to entitle the plaintiffs to a decree. It is, in other words, a bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed in the suit. Mr. Dutta for the appellants contends that in the previous suit it was necessary for the plaintiffs to prove the same set of facts as in the present and therefore the cause of action of the two suits must be held to be the same. The test is this. The previous suit was in respect of two sale deeds, namely those for Rs. 600 and Rs. 200. Was it necessary in that suit to allege or prove anything with regard to the sale deed for Rs. 300? The most important allegation of fact was that the sale deeds were without consideration. Was it at all necessary to allege and prove that the consideration for the sale deed now in question was not paid? Certainly not. The plaintiffs might have adduced evidence, but it was not necessary for them to prove, that the consideration of the sale deed for Rs. 300 was in fact not paid. What was necessary to be alleged and proved for the plaintiffs' success in that suit was that the sale deeds for Rs. 600 and Rs. 200 were without consideration. Indeed the question of undue influence was raised there as in the present case; but want of consideration was the most essential factor in invalidating the sale deeds, because consideration, if found to exist, would completely defeat the plea of undue influence. Each sale represents a distinct and separate contract. A cause of action founded on one contract is different from the cause of action founded on another distinct contract. There can be no doubt that the three sale deeds although executed on the same date, furnished different causes of action. The plaint in the previous suit has not been brought on the record of this case and having regard to the findings of the Courts below, it cannot be suggested that the plaintiffs in the previous suit made out a case of conspiracy resulting in the execution of three deeds at one and the same time. Here we have a simple case of three sale deeds being executed for different Considerations. Facts necessary to establish want of consideration of each separate sale deed must necessarily be different. In my view therefore the cause of action in the present suit is quite different from the cause of action in the previous suit. Consequently O. 2, R. 2, does not apply.
3. Mr. Dutta has relied chiefly on the decision in 46 All 822.1 There a Hindu reversioner after the death of the widow brought two suits to recover possession of certain properties improperly alienated by her. Thereafter he brought another suit to set aside certain other alienations by her. In this later suit two points appear to have been raised in the High Court; first, that the suit was barred under O. 2, R. 2; and second, that the alienations were justified by legal necessity. Their Lordships found that the alienations were for legal necessity. That finding was sufficient for the disposal of the appeal and the suit: but their Lordships further held that the suit was barred under O. 2, R. 2. This part of the decision may therefore be regarded as mere obiter dictum. On principle, I do not understand how different alienations made by a Hindu widow can be said to form one and the same cause of action. No doubt the reversioner's right of suit in respect of every alienation accrues on the widow's death, but the accrual of his right to sue is not the same thing as the cause of action for the suit. Accrual of cause of action is only one out of the bundle of facts which constitute the cause of actions. The question of legal necessity for a particular alienation depends upon its own circumstances. With all respect therefore to the learned Judges who decided the case in 46 All 822, I am unable to concur in the view expressed by them.
4. The next case relied on by Mr. Dutta is AIR 1931 Bom 114,2 which was decided by a Single Judge. There the question was whether when an adopted son brought two successive suits to set aside alienations effected by his adoptive mother previous to the adoption, the subsequent suit was barred under O. 2, R. 2, and Explanation 4 to Section 11 of the CPC. His Lordship held that the right to impeach all the alienations of the mother accrued on the date of the adoption and the only facts necessary to be proved were first, the adoption and second, the alienations made by the mother, quite irrespective of whether they were for consideration or for legal necessity. The essential facts being common in both the suits, it was held that the subsequent suit was barred. This case therefore is quite distinguishable and is covered by the principle I have already discussed.
5. The next case referred to by Mr. Dutta is 14 PLT 663.3 There the suit was brought to resume a grant terminable on the death of the surviving grantee. There were two villages comprised in the same grant. On the death of the surviving grantee, the grantor or his representative brought a suit to resume one of the villages and got a decree. Thereafter he brought a second suit to resume the other village. Their Lordships held that this second suit was barred under O. 2, R. 2. The reason was that the only facts necessary to be proved in both the suits were that there was a grant, there was the death of the surviving grantee and there was holding over. That being so, the cause of action was held to be the same in both the suits.
6. Mr. Dutta also relied on certain observations in 40 Bom 3514 where the following passage was quoted from an English case: “And one great criterion of this identity is that the same evidence will maintain both actions.” But in that very case, 40 Bom 351, their Lordships held that two successive suits to set aside two separate sale deeds executed by a Hindu widow were maintainable as the causes of action based on the two deeds were separate. I may refer here to the Full Bench decision of the Allahabad High Court in 16 All 165,5 where it was pointed out that Section 43 of the CPC (now O. 2, R. 2) has nothing to do with the evidence which may be necessary or may be produced to support or defend a cause of action. Mr. Harinandan Singh on behalf of the respondents relied chiefly on the decision of the Privy Council in 12 IA 116,6 where their Lordships observed as follows:
The Section (now O. 2, B. 2) does not say that every suit shall include every cause of action or every claim which the party has, but ‘every suit shall include the whole of the claim arising out of the causing of action’ meaning the cause of action for which the suit was brought.
7. Applying this principle, it cannot be said that the claim to which the present suit relates arose out of the cause of action for which the previous suit was brought. Several other decisions were cited on both sides, but they are not of much assistance. The true principle deducible from all those cases is whether the same set of facts, if proved, would entitle the plaintiffs to the reliefs not only claimed in the first suit but also in the second. I should observe that the learned Subordinate Judge seems to have rather proceeded on the view that the cause of action in the present suit is different because the previous suit was based on defendants' resistance offered to the plaintiffs on the death of Muneshwar Singh whereas there was no such resistance in the case of the lands that formed the subject matter of the present litigation.
8. This view is entirely erroneous because in an earlier part of his judgment he remarks that neither party argued on points of fact; and the finding of the Munsif was that the plaintiffs were never in possession of the disputed lands. In my opinion the suit was rightly decreed by the learned Subordinate Judge. The decree, however, should be for recovery of possession. With this modification in the decree, I would dismiss the appeal with costs.
Rowland, J.:— I agree. There is no statutory definition of a cause of action and the question whether in a particular instance the cause of action of two successive suits is identical has to be considered in the light of judicial pronouncements, some of which explain the meaning of the expression “same cause of action” in general terms, while in others it has been held that on a particular set of facts the cause of action was or was not identical. One line of general explanation derives through (1771) 2 WBI 8277 and (1884) 14 QBD 1418 where it has been said:
One great criterion of this identity is that the same evidence will maintain both actions.
9. On the other hand a cause of action is described in (1892) 22 QBD 1289 as:
Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.
10. This pronouncement by Lord Esher, M.R had the assent of Fry L.J and Lopes L.J In 15 IA 15610 it was stated:
The cause of action has no relation whatever to the defence which may be set up by the defendant-nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.
11. In 16 All 165, a Full Bench decision, Sir John Edge C.J followed the pronouncement of Lord Esher in (1892) 22 QBD 128 and dissented from the view which had been expressed in another High Court that “one test is whether the same evidence and the same arguments apply in the two cases.” It is in the light of these principles that particular cases fall to be decided. Of all these pronouncements that of their Lordships in 15 IA 156 is the most, authoritative for Indian Courts, and it does not refer to identity of evidence as a test. The Court is no doubt entitled to see whether the evidence required in the two cases is identical; for instance in 38 IA 140.11 Lord Robson remarked “the evidence is different”; but that was alluded to, it would seem, merely as an aid to determining the identity or otherwise of “the media upon which the plaintiff asks the Court to come to a conclusion in his favour”; the latter, and not identity of evidence being the true criterion, as pointed out in 15 IA 156 followed in this Court in AIR 1921 Pat 143.12 In applying these principles to particular cases it may be noticed that it does not necessarily follow because two claims arise out of one transaction that the cause of action will be identical. In 41 IA 14213 a party who had failed on a technical ground in a suit on two promissory notes was allowed afterwards to sue to recover a part of the consideration for which the promissory notes had been given as it was said that the claims in the two actions though they arose out of the same transaction were in respect of different causes of action.
12. In 18 IA 15814 the first suit had been to recover possession on the strength of a sale deed. When that failed, the plaintiff brought a second suit to recover the consideration money. The Calcutta High Court had held that the second suit was not barred as being a suit on the same cause of action; but their Lordships of the Privy Council disposed of the appeal on another ground and did not decide this point. In 12 IA 116 the plaintiff had been wrongfully dispossessed by the defendant both of his share in the landed estate and of his share of personal property to both of which he was entitled under a will. He was permitted to maintain successive suits, the one for recovery of the and the second for the personal effects. Their Lordships pointed out that the Section does not say that every suit shall include every cause of action, or every claim which the party has, but ‘every suit shall include the whole of the claim arising out of the cause of action’ meaning the cause of action for which the suit is brought.
13. They relied on an observation in 11 MIA 55115 that the correct test is, whether the claim in a new suit is in fact founded on a cause of action distinct from that which was the foundation of the former suit.
14. There may even be two separate contracts embodied in one instrument and those contracts may create separate causes of action as in 21 Bom 267.16 But ordinarily where a cause of action arises out of the execution of a single document, it may be considered to be but one cause of action though the document deals with more than one property or gives rise to a claim to two kinds of relief such as principal and interest on a mortgage: so held in 49 IA 9.17 Where by a mortgage several properties had been hypothecated and a suit had been brought successfully challenging the validity of the mortgage in respect of one of the properties, it was held in 1 Luck 118 that the mortgage being one and entire, the cause of action in both the suits was identical. A case of this Court is in 14 PLT 663. The claim was to resume khas possession of properties which were the subject-matter of a mokarrari grant and became resumable on the death of the survivor of the grantees. There were two villages concerned. It was held that the plaintiff having in a former action claimed recovery of possession of one of these villages could not in a subsequent suit claim to recover possession of the other. The decision proceeded on the ground that the two villages were the subject-matter of the same grant and that the death of the grantee was the cause of action which entitled the plaintiff to resume both villages. The cause of action it was said consisted in the fact of the grant plus the fact of the death of the latter of the two grantees.
15. I now come to the decision in 46 All 8221 which is most strongly relied on by the appellants. This was a case of successive suits by the reversioner of the last male-holder of certain properties to recover possession from the alienees of portions of the property transferred to them by the widow. It was held that the later suit was barred under the provisions of O. 2, R. 2 of the CPC. on the ground that he is the reversioner and rightful heir to Hoti Lal and that the property in suit in the possession of the defendant belongs to Hoti Lal. This is the whole cause of action. It is immaterial for him whether the defendant wants to justify his right to continue in possession on different grounds. The defence or the nature of it is immaterial for the purpose of finding out what is the cause of action of the plaintiff.
16. The reasoning is based on the observations of their Lordships of the Judicial Committee in 15 IA 156 and if the plaintiff rested his claim simply on the facts that the property was Hoti Lal's and that the plaintiff was Hoti Lal's heir, those observations may support the reasoning. It would however be otherwise if the plaintiff had in his plaint referred to alienations made by the widow and had alleged absence of necessity for such alienations among the facts on which the plaintiff based his claim to relief. We do not know the exact terms in which the cause of action was stated in the plaint. Be that as it may, the learned Judges appear to me, if I may say so with respect, to be on less firm ground when they give as a further reason for their view the following argument:
It is clear that when this suit of 1917 was brought, the plaintiff could have, if he was so disposed, brought a claim with respect to the properties now in dispute. There is no authority, so far as we are aware, to establish that any such suit would have been repugnant to any rule of law. On the other band, there are numerous authorities to show that a reversioner is entitled to bring a single suit against any number of persons who may be holding different portions of the last male holder's property, though they may be holding under different title deeds, executed at different dates.
17. With great respect, I cannot accept this as a valid piece of reasoning. It seems to assume that if a suit could be maintained (resisting an objection that it was bad for multifariousness) the consequence will be that it is to be inferred that all the reliefs in the suit are based on one cause of action; To assume this is to forget that the Section does not say that “every suit shall include every cause of action,” vide 12 IA 116, and to ignore the provisions of the Code ‘which permit a plaintiff to join in one suit reliefs claimed against the same defendant in respect of different causes of action. The fallacy of such reasoning is exposed in 40 Bom 351 where it is said:
No doubt these two separate causes of action might have been joined together in one suit, as raising the common question of title arising out of the death of Bbagirathi and affecting to some extent each of the two different defendants, under the permissive provisions of O. 1, R. 3 of the Schedule of the Civil Procedure Code as in 29 Cal 87119 and 38 Bom 444.20 But that is quite another thing from holding that these two separate causes of action ought to have been joined together in one suit against the two different defendants. The two causes of action were clearly separate… There was, therefore, no legal necessity to join them in one suit.
18. It is pointed out that a clear distinction should be maintained between the permissive nature of the provisions of O. 1, R. 3 and O. 2, R. 3 and the peremptory nature of the provisions of O. 2, R. 2 of Sch. 1 to the CPC. With this part of the judgment of the learned Judges of the Bombay High Court, I would respectfully express my full agreement. It may, however, be noticed that in distinguishing the two causes of action they have referred to the fact that the evidence to establish both sets of facts was not the same, using the criterion that “the same evidence will maintain both cause of action” from (1771) 2 WBL 827. This criterion is not accepted by Sir John Edge in the Allahabad Full Bench decision, is not referred to by the Privy Council in 15 IA 156 and though a Court may be entitled to take it into consideration, it ought not, in my view, to be deemed the decisive test. The Bombay case would no doubt have had the same result had the learned Judges taken the ground that invalidity of the sale deed questioned in the later suit was not the same fact as the invalidity of the sale deed in the former suit and did not automatically follow from it. In the suits between the parties before us the invalidity of the sale deeds by Muneshwar was a necessary part of the cause of action of the plaintiff. It was not enough for him to allege in his plaint that the properties had belonged in his lifetime to Muneshwar and that the plaintiffs were his heirs. Such a suit would have been defeated by the mere production and proof of the sale deeds, for Muneshwar was a full owner with absolute right to transfer. Non-payment of the consideration of Rs. 300 in the present case was a fact that the plaintiff pleaded and was to establish and was not the same fact as non-payment of the consideration money of the other two sale deeds of Rs. 600 and Rs. 200 respectively. On these grounds, I prefer to follow the Bombay decision rather than that in 46 All 822 (if as is not quite clear, the latter case is on all fours with the one before us); and the result will be that as stated by my learned brother, the appeal will be dismissed.
D.S/R.K
19. Appeal dismissed.