M.P Mehrotra, J.:— This petition, under Art. 226 of the Constitution is directed against the judgment of the Board of Revenue, U.P, Allahabad passed in second appeal, which itself arose out of a suit for ejectment under Section 209 of the U.P Zamindari Abolition and Land Reforms Act, 1350 which was filed by Smt. Murti Devi, opposite party No. 6 in the petition against Maharaj Singh and Komal Singh, who are the petitioners in the petition.

2. The facts, in brief, are these:

The said Smt. Murti Devi filed the aforesaid suit under Section 209 of the U.P.Z.A and L.R Act claiming possession of the suit plots from the defendants. She had earlier filed a suit for the cancellation of the sale deed in respect of the said plots, which) had been executed by her brother Har Prasad on September 4, 1963 in favour of the defendants. Har Prasad died issueless and Smt. Murti Devi was the successor-in-interest. The earlier suit for cancellation of the safe deed was decreed by the trial court and the judgment and decree of the trial court stood confirmed upto the second appeal in this Court. Subsequently Smt. Murti Devi filed the suit for the eviction of the defendants under Section 209 of the U.P.Z.A and L.R Act. She also claimed damages. The defendants contested the suit and inter alia took up the plea that the same was barred by Order II, rule 2, C.P.C on the ground that in the earlier suit for cancellation of the sale deed, the plaintiff Smt. Murti Devi was bound to claim the relief of possession also and she having failed to do so, could not subsequently maintain another suit for claiming the relief of possession in respect of the plots in question. This defence succeeded before the trial court and also before the first appellate court. However, in the second appeal which was filed by Smt. Murti Devi before the Board of Revenue she succeeded and the Board of Revenue held that the subsequent suit under Section 209 was not barred by Order II, rule 2, C.P.C The Board of Revenue, therefore, set aside the judgments and decree of the courts below and as the courts below had dismissed the suit on the aforesaid preliminary ground and had not gone into thee merits of the suit, therefore, it remanded the case to the trial court with a direction that the same should be decided on merits in respect of the other issues which were involved in the suit including the question of the quantum of damages etc.

3. Feeling aggrieved, the defendants in the said suit under Section 209 of the U P.Z.A and L.R Act have now come up in the instant petition and in support thereof I have heard Sri H.O.K Srivastava, iearned counsel for the petitioners and in opposition Sri N.C Rajvanshi, learned counsel for opposite party No. 6 Smt. Murti Devi, has made his submissions. The controversy between the parties is whether the subsequent suit under Section 209 of the U.P.Z.A and L.R Act seeking possession of the plots in dispute was barred by Order II Rule 2 C.P.C on the ground that in the relied suit for cancellation of the sale deed in respect of the said plots, the plaintiff Smt, Murti Devi had not sought possession of the said plots. Admittedly 6oth the suits were between the same parties. Smt. Murti Devi was the plaintiff in both the suits and the present petitioners were the defendants in the same. However, in both tha suits the State of U.P and the Gaon Sabha were impleaded as defendants.

4. The contention of Sri H.O.K Srivastava is that the cause of action in respect of both the suits was the same namely the execution of the sale deed dated September 4, 1963 by Har Prasad in favour of the petitioners (who as stated above, were the defendants in both the suits). It was contended that when the plaintiff Smt. Murti Devi filed the suit for cancellation of the said sale deed she was also bound to claim the relief of possession in the said suit on the basis that the cause of action for both the reliefs, namely the relief for the cancellation of the document and the relief for possession of the suit plots was the same i.e, the execution of the sale deed. Sri Rajvanshi, on the other hand, contended that the suits were founded on separate cause of action the earlier suit for cancellation of the document was based on the cause of action which was provided by the execution of the sale deed and the subsequent suit for possession was based on a different cause of action which was provided by the dispossession of the plaintiff from the plots in question.

5. I should like to state here that Sri Rajvanshi sought to contend that the plaintiff could not seek the relief of possession in the earlier suit for the cancellation of the sale deed on the ground that she was then in possession of the suit plots and that she was dispossessed from the same subsequent to the filing of the said suit for cancellation of the document. The learned counsel for the petitioners, however, contended that his plea was not open to Smt. Murti Devi opposite party No. 6 on the ground that the courts below had decided the controversy between the parties on the footing that it was open to Smt. Murti Devi to claim possession in the earlier suit for cancellation and that even in the grounds of appeal before the Board of Revenue, Smt, Murti Devi had not taken any ground to claim that she was in possession of the suit plots on the date of the filing of the earlier, suit for cancellation of the sale deed and, therefore, she did not need to seek possession in the earlier suit. In the view which I have taken in this case, it is really not necessary to decide between these two rival contentions as to whether on the date when the earlier suit for cancellation was filed, the plaintiff Smt. Murti Devi was or was not in possession of the suit plots. I have proceeded on the basis on which the Board of Revenue decided the controversy namely, that she might be taken to have been out of possession on the date when the earlier suit was filed. However, I must concede that in case a different view of the law is taken in respect of the main controversy about the applicability of Order n, Rule 2, C.P.C i.e, different from the one which I am going to take hereafter, then it will be necessary to go into the said aspect of the matter, namely, whether there was evidence to justify the conclusion that the plaintiff Smt. Murti Devi was out of possession when she filed the earlier suit for cancellation of the sale deed. Sri H.O.K Srivastava placed reliance on the following case law.

(i) Sheo Har Karan v. Dwarika Kurmi(1).

(ii) Maikwa v. Jageshwar(2).

(iii) Jokhiram v. Sardar Singh(3).

(iv) Sher Ali Mridha v. Torap Ali(4).

(v) Ram Prasad Singh v. Radha Pandey(5).

(vi) Subhan Ali v. Imami Begum(6).

(vii) Balbir Singh v. Atma Ram(7).

(viii) Balkar Singh v. Chain Singh(8).

(ix) Kewal Singh v. Mt. Lajwanti(9).

(x) Mewa v. Baldeo(10).

(xi) Ram Awalamb v. Jata Shankar(11).

(xii) Mewa Kaar v. Banarsi Prasad(12).

(xiii) Darboo v. Kesho Rai(13).

(xiv) Mohd. Khalil Khan v. Mabbule Ali Mian(14)..

(xv) Wrong citation (15).

6. On the other hand Rajvanshi placed reliance on the following case law.

(i) Gur Bux Singh v. Bhoora Lal.

(ii) (Wrong citation) .

(iii) Smt. Marjadi v. Umapati.

(iv) Krishna Ji v. Sangappa.

(v) Mohammad Umar Khan v. Amtul Rdhim Bibi.

(vi) Smt. Maha Devi v. Sri Kaliji Birajman.

(vii) Darbo v. Kesho Rai.

(viii) Keshav Lal Sakhi Das v. Amarchand Somchand.

(ix) Mahomad Ali v. Mir Haidar.

(x) Ram Charan v. Tulsi Ram.

(xi) (11)

(xii) State of M.P v. State of Maharashtra.

(xiii) Nand Kishore v. Prabhu Narain.

(xiv) Manmatha Nath Bose v. Jagat Ram Roy.

(xv) Arjun Lal Gupta v. Mirganka Mohan Sur.

(xvi) Bhagwan Das v. Rameshwar Dayal(16).

7. I shall first take up the cases relied upon by the petitioners—

In 1942 R.D 668 (supra) it was held.

“The fallacy committed by the learned Additional Commissioner is that in his opinion each fact in issue constitutes a cause of action and consequently he has arrived at the most incongruous conclusion that even if there is one common sigle issue in two suits of entirely different nature, the cause of action in the two suits must be held to be the same. As a matter of fact it is not every point at issue which constitutes cause of action but it is the whole bundle of facts in issue which taken together constitute the cause of action in a suit. Now obviously all the points at issue were not identical in the ejectment suit and the present arrears of rent suit. For instance, the main point in issue in the ejectment suit was whether the defendant were liable to ejectment while the main point in issue in the present case is whether the defendants are liable to pay the rent to the plaintiffs. Hence in my opinion, the cause of action in the present arrears of rent suit is entirely different from the cause of action in the previous ejectment suit, and the present suit is not liable to be dismissed under Order IX rule 9 C.P Code”

8. In 1943 R.D 393 (supra) a learned Member of the Board of Revenue observed as follows:—

“I also consider that the second objection of the respondent's counsel relating to Order II rule 2(2) C.P.C and the proviso to Section 42 of the Specific Relief Act has great force. The law does not encourage multiplicity of litigation and with that end in view requires that all the reliefs which can be claimed at he same time should be claimed in one and the same suit. Failure to do so is penalised both by the proviso to Section 42 of the Specific Relief Act and by order II rule 2(2) of the Civil Procedure Code. The proviso lays down that if the consequential relief is not asked for in a declaratory suit, the suit merely in its declaratory form should not be decreed. Order II rule 2(2) C.P.C goes further and says (that if a relief could have been claimed in a previous litigation, a fresh! suit for the same relief cannot be instituted.”

9. In my view, the learned Member of the Board was wrong in thinking the Order II, Rule 2(2), C.P.C lays down that if a relief could have been claimed in a previous litigation a fresh suit for the same relief cannot be instituted. This will be so only if both the reliefs arise out of the same cause of action. If the reliefs arise out of the different cause of action, then even if in an earlier suit, was possibly for the plaintiff to join the different causes of action and to claim different reliefs arising out of the different causes of action still, the failure of the plaintiff to do so would disentitle him from filing a subsequent suit for a relief arising out of a different cause of action. It is the option of the plaintiff under Order II Rule 3, C.P.C to join two or more different causes of action against the same defendant and to claim reliefs arising out of such different causes of action in one and the same suit but he is not bound to do so and he can exercise his option by confining his earlier suit to one cause of action and by filing a subsequent suit on the basis of another cause of action against the same defendant. This is clear from the Division Bench pronouncement of this Court in 1969 A.I.J 896 (supra).

10. In A.I.R 1955 Allahabad 661 (supra). It was held that

“Though the facts which would entitle the plaintiff to establish his title to the property ware the same in both the cases, the infringements of the plaintiffs rights having been occasioned as a result of two separate transactions covering different kinds of rights in property it cannot be said that the cause of action substantially was the same in both the cases. The nature of the controversy in the said case was different from that in the present case.

11. In A.I.R 1942 Cal. 407 (supra) it was laid down that the expression the cause of action has been used in different senses in the Civil Procedure Code. Again the nature of the controversy fin the Calcutta case was different from that involved in the present case.

12. In A.I.R 1941 Pat. 37 (supra) it was laid down that Order II, rule 2, C.P.C will cover cases of accidental omission also. In an earlier suit a declaration of title was sought in respect of certain properties which had been the subject matter of court auction. Two properties, however, were not included in the said suit even though they were also the subject matter of the same court auction. In the subsequent suit the declaration of title was sought in respect of these two properties also and in addition a claim for possession was added. It was held that the suit was barred by Order II, rule 2, C.P.C

13. In A.I.R 1922 Nag. 129 (supra) it was laid down that in a suit for declaration if the plaintiffs are out of possession then they must also sue for possession in addition to their claim for declaration. It is true that for laying down this proposition he Division Bench also placed reliance on Order II, rule 2, C.P.C as well as on Explanation IV to Section 11, C.P.C However, the decision can be supported on the ground that in the case where the discretionary relief of declaration is claimed, thereunder the provisions of the Specific Relief of possession if he is out of possession.

14. In any case the Nagpur decision can have only pursuasive value so far as this Court is concerned and as a single Judge I am bound by the decisions of the larger Benches of this Court and not by the decision of a larger Bench! of another High Court.

15. In 1977 A.W.C 233 (supra) it was laid down that the relief of possession and the relief for past arrears of rent or mesne profits in respect of an immovable property arise out of the same cause of action where the immovable property has been the subject matter of lease and which lease has been determined by the landlord, who thereafter seeks to get back possession of the property and claims past arrears of rent or mesne profiits in respect of the illegal occupation of such property by the Ex. tenant. The Full Bench, therefore, held that Order II, rule 2, C.P.C will be applicable to such a case. In reaching the aforesaid conclusion the Full Bench had to consider the respective scope of Order II, rule 2, C.P.C and Order II, rule 4, C.P.C in my view, this decision has no relevance to the controversy at hand which is involved in the instant case. Here we have to decide whether the cause of action for a suit for the cancellation of a sale deed in respect of an immovable property is the same as that for the recovery of such property from the vendee.

16. In 1980 A.L.R (S.O.C No. 100) p. 82) (supra) it was held.

“The gist of the Order 2, Rule 2 is that all matters and disputes between the parties and relating to the same transaction should be disposed of in the same suit. The penalty for noncompliance with the said rule was provided partly by Section 11, Explanation IV and partly by Order 2, Rule 2(2). The plaintiffs could be visited with the above penalty only when the reliefs in both the suits flowed from the same cause of action. The transaction was one, the cause of action was one. The principal subject matter of the agreement was the land and the structure were only ancillary to it and consequently the moment the transfer was made by the defendant No. 1 in contravention of any of the terms; of the agreement the cause of action for the plaintiffs arose.”

17. In (1980) 1 SCC 290 : A.I.R 1980 S.C 161 (supra) reliance was placed on A.I.R 1949 Privy Council p. 78 (supra) and the tests laid down therein were approved for deciding whether Order II. rule 2, C.C.P should be held to be applicable in a given case.

18. In A.I.R 1967 Alld. 358 (supra) the Division Bench had to consider the controversy whether a suit in which cancellation of a document is in issue along-with the relief for possession, lies before the Civil Court or by virtue of Section 331 of the U.P Zamindari Abolition and Land Reforms Act before the Revenue Court only? The Division Bench held that where the documents was voidable and not void ab initio, the suit would lie in a, Civil Court because the main relief would be the relief for cancellation of the document and the relief for possession will be only a consequential relief which the Civil Court can grant because the main relief of cancellation of the document can be granted only by the Civil Court and not by the Revenue Court. The Di-vision Bench was not called upon to consider the controversy which is involved in the present case, namely whether when the Civil Court has cancelled a document, another suit would lie in the Revenue Court for getting back possession of the property in question.

19. In A.I.R 1969 Allahabad 526 the Full Bench bad to consider the nature and scope of Section 331 of the U.P Zamindari Abolition and Land Reforms Act which vest??? in exclusive jurisdiction in a Revenue Court to try specified suits. The controversy arose in a suit for injunction, demolition of constructions and for possession of the land over which such constructions stood. S.D Khare, J. observed as under—

“The main point for consideration in all cases where on a definite cause of action two reliefs can be claimed is which of the two reliefs JS the main relief and which relief or other reliefs are ancillary reliefs. Where from facts and circumstances of the case the relief for demolition and injunction is the main relief, there could be no reason why the jurisdiction of the Civil Court should be barred. On the other hand, if it would be said that the main relief that is to say, the real and substantial relief could, on that cause of action be of possession only then the suit will definitely lie in the revenue court. In cur opinion, it is difficult to lay down any hard and fast rule that where the suit is brought against a trespasser the only relief which the plaintiff should claim as an effective relief is that of possession and he need not try to obtain an injunction order end get the constructions made by the trespasser demolished. The revenue courts have not been empowered to grant the reliefs of injunction and demolition and in case the defendant refuses to take away the materials from the land in dispute after the decree for possession has been passed against him the main object of the plaintiff wiuld be frustrated. A civil court will, therefore, have the power to entertain the suit where the main relief sought by the plaintiff is that of injunction, and demolition, a relief which could be granted by the civil court only. The relief of possession session will be merely ancillary relief which the civil court could grant after having taken cognizance of the suit for injunction and demolition. We respectfully agree with the view expressed by Dayal and Seth, JJ. in the case of 1066 All.L.J 1084 : A.I.R 1097 All. 358 that once the suit is maintainable for the main relief in the civil court then there is no bar for the civil court to grant all possible reliefs flowing from the same cause of action. We, however, with great respect differ from the view taken by the Division Bench in the case of 1965 All.L.J 1137 that whenever a suit is for demolition and possession against a trespasser it must always be held that the main relief was that of possession. We are of the view that the determination of the question as to which out of the several reliefs arising from the same cause of action is the main, relief will depend on the facts and circumstances of each case.”

20. In my view, this Full Bench is again not applicable to the controversy alt hand involved in the present case.

21. In I.L.R 17 Alld. 533 the Head Note is as follows:—

“Where when the plaintiff sued for possession of immovable property upon the forfeiture and for rent in respect of the said property upto the date of the alleged forfeiture, and, having obtained a decree, subsequently brought a separate suit for mesne profits including the period from the date of the forfeiture to the date of the institution of the former suit. Held that the claim for mesne profits for the period above mentioned was barred by Stction 43 if the C.P.C”

22. The Division Bench placed reliance on the Full Bench decision of this Court in Lalji Mal v. Hulasi(17) and held that the cause of action for past mesne profits is the same as that for possession of immovable property upon a forfeiture. Again this Division Bench case is not applicable to the facts of the instant case where the controversy relates to the maintainability of a suit for possession after an earlier suit for the cancellation of a sale deed.

23. In I.L.R 2 All. 356 the Full Bench laid down as follows:—

“In so far as the appellant now claims possession of property to which she formerly claimed a declaration of title, we are of opinion that: the suit is clearly not barred, which is seeking a different relief, and the relief she formerly sought was refused her in respect of this property, on the ground that the Court ought not to exercise its dictiinary power of awarding a declaration of title when relief acn be obtained by an ordinary suit for possession.”

24. In A.I.R 1949 P.C 78 (supra) Sir Madhavan Nair speaking for the Board laid down as follows:—

“The principles laid down in the case thus far discussed may be thus summarised:

(1) The correct test in cases falling under O. 2, R. 2, it Whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit. Moonshee Buzloor Ruheem v. Shumsunnissa Begum (1867-11 M.I.A 552 : 2 Sar. 259 P.C. (supra).

(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. Read v. Brown, (1889-22 Q.B.D 125 - 58 L.J.A 120 (supra)

(3) If the evidence to support the two claims is different, then the causes of action are also different. Brusdev v. Humphrey, 1884-14 Q.B.D 141 : 53 L.J.O.B (supra).

(4) The cause of action in the two suits may be considered to be the same if ih substance they are identical. Brunsden v. Humphrey, 1884-141 = 53 L.J.Q.B 476 (supra).

(5) The cause of action, has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff it, refers…. to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. Muss. Chankour v. Partap Singh, 15 I.A 156 : 16 Cal. 98 P.C (supra). This observation was made by Lord Watson in a case under Section 43 of the Act of 1882 (corresponding to O. 2, R. 2). where plaintiff made various claims in the same suit.”

25. The controversy before the Board was in rtspect of the maintainability of the subsequent suit for the recovery of certain properties different from certain other properties for whose recovery an ealier suit had been filed. The plaintiffs the two suits were the same and their claim to both the properties was based on the same facts. It was held that the second suit was barred under Order II, rule 2, C.P.C This decision, apart from the general discussion about the nature of Order II, rule 2, C.P.C has no bear ing on the controversy involved in the present case.

26. The last case relied upon by Sri H.O.K Srivastava, namely, 1944 A.W.C 59 seems to be a wrong citation.

27. Now I shall discuss the cases relied upon by Sri Rajvanshi, learned counsel for the plaintiff-opposite party No. 6.

28. In A.I.R 1964 S.C 1810 (supra) No. Rajgopal Ayangar, J. laid down as follows:—

“As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order II. rule 2. C.P.C can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the court the identity of the causes of action in the two suite.”

A.I.R 1963 Bom. 398 is a wrong citation.

29. In 1971 R.D 145 (supra) it was held by J.S Trivedi, J. as follows:—

“The cause of action in the present suit was the execution of the sale deed. The mutation and dispossession may be the subsequent cause of action entitling a party to a relief provided in the Act. That, however, could not be the principal cause or action. In Ram Avalamb v. Jai Shanker(18) it was laid down that where on the basis of cause of action the main relief is cognizable by the Civil Court, the suit will be cognizable by the Civil Court. Even in the Full Bench case referred to above it was observed that it is difficult to lay down a hard and fast rule in respect of the matters where relief is cognizable by a Revenue Court.”

30. In A.I.R 1925 Bom. 181 (supra) it was held that in a suit for specific performance of a contract of sale though a claim for possession might be made, it is not obligatory upon the plaintiff to make such a claim. Under Section 54 of the Transfer of Property Act, the contract for sale of immovable property of itself creates no interest or charg upon the immovable property, and until the claim for specific performance was decreed in favour of the plaintiff, it could not be said that he is entitled to possession though for the sake of convenience, and to avoid multiplicity of suits, it might be open to the plaintiff to make a claim for possession in the same suit.”

31. In A.I.R 1923 All. 311 it was held that a previous suit by the plaintiff wherein he impugns a sale deed by his predecessor-in-interest as fictitious would not bar under Order II, rule 2, C.P.C a subsequent suit by the same plaintiff claiming his share as an Weir of the deceased predecessor-in-interests in the properties left by him. It was held that the causes of actions were different for the earlier and the subsequent suits. It was observed as under:

“So far as his claim to be heri of Ahmad Ali Khan is concerned, this portion of the cause of action is common to the previous suit and to the present suits. It is clear, however, that this allegation alone would not entitle the plaintiff to succeed in the previous suit. He was met by the plain fact that at the time of Ahmad Ali Khan's death, the property did not stand in Ahmad Ali Khan's name. Ahmad Ali Khan had parted with it is his life-time by a registered sale deed. Unless that sale deed was set aside it stood in the way of the plaintiff's claim and the plaintiff could claim no relief. It appears to us clear therefore, that the learned Munsif was right in holding that Order 2, Rule 2 does not apply. In the Full Bench case of Murti v. Bhola Ram (1), the plaintiff's cause of action is defined as consisting of 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. The same criterian was adopted in the more recent Bombay case of Sonu v. Bahinibai (2), in which it was added that one test which is valuable in considering whether the causes of action are identical is whether the evidence which would suffice to enable the plaintiff to obtain a decree in both suits is the same. Judged by the criterion laid down in these two cases it is clear that the causes of action in the previous suit and present suit were not the same.”

32. In A.I.R 1933 Bombay 398 the Di vision Bench placing reliance on 41 Indian Appeals 142, A.I.R 1929 Bombay 460, I.L.R 18 Bombay 537 and A.I.R 1925 Bombay 181 (supra) held that the cause of action for possession is differ rent from the cause of action for setting aside a sale and, therefore, the second suit for claiming possession will not be barred by Order II, rule 2, C.P.C where the earlier suit was only for set ting aside the sale transaction.

33. In A.I.R 1915 Lahore 127 the plaintiff filed a suit for possession of the half portion of a house of which he claimed to be the owner. It seems that the said house had been sold by the said plaintiff's sister-in-law and earlier the same plaintiff had filed a suit seeking declaration that the sale by the sister-in-law would not affect his reversionary right to half the property which belonged to his late brother i.e, the deceased husband of his sister-in-law. It was held that the second suit for possession) was not barred under O. II, R. 2, C.P.C as the causes of action for the two suits were different even though both causes of action were parts of the same transaction.

34. In A.I.R 1929 All. 306 (supra) it was laid down:

“In order to see whether the causes of action in the two suits are one and the same, we must certainly see whether the cause of action is substantially the same. A mere change in the relief wil not alter the decision of the court. Where, however, the former suit is one for pure declaration and the second suit is for possession, I am of opinion, it must be taken that the two causes of action are different.”

35. In 1969 A.L.J (supra) the Division Bench laid down that the cause of action in a suit for declaration of title is different from the cause of action in a suit for recovery of possession. Reliance was placed on I.L.R 2 All. 356 (supra), Ram Sewak Singh v. Nakchhed Singh(19), Sarswati v. Kunj Behari Lal(20), Kali Dhun Chattopadhyaya v. Shiv Nath(21), Mohan Lal v. Bilaso(22), Jibuhti Nath Khan v. Shiv Nath Chakravarti(23) and Ramcharan v. Tulsi Ram(24). The Division Bench also laid down that even if it be possible to claim both the reliefs in the same suit, namely, the relief of declaration of title and the relief of possession of the property. Being the subject-matter of title, still, it will not mean that a plaintiff is bound to claim both the reliefs in the same suit. It is his choice to combine the two causes of actions in one suit. He may, however, exercise Ms option by claiming relief of declaration only in one suit and claiming the relief of possession in a subsequent suit. Order II, rule 2, C.P.C comes into play only when the cause of action of both the suits it the same. It has no application to a case where a plaintiff chooses to combine two causes of actions in one suit and seeks different reliefs in the same suit on the basis of different causes of actions which he has joined im, one suit.

I.L.R 2 All. 356 has already been discussed above while dealing with the cases relied upon on behalf of the-petitioner.

36. In (1977) 2 SCC 288 : A.I.R 1977 S.C 1466 it was laid down that:

If at the date of the former suit the plaintiff is not aware of the right on which he insists in the latter suit, the plaintiff cannot be said to be disentitled to the relief in the latter suit. The reason is that at the date of the former suit the plaintiff is not aware of the right on which he insists in the subsequent suit. A right which a litigant does not know that he possesses a right which is not in existence at the time of the first suit can hardly be regarded as a ‘portion of his claim’ within the meaning of Order II, Rule 2, of the Civil Procedure Code. See Amanat Bibi v. Imdad Husain(25). The crux of the matter is presence or lack of awareness of the right at the time of first suit.”

37. In A.I.R 1976 Rajasthan 20 (supra) it was laid down as follows:

“It is no doubt true that a suit contemplated by Order 21, Rule 63, Civil Procedure Code is of a comprehensive nature and the words ‘to establish the right’ are wide enough to cover not only a mere declaratory suit but also one for consequential relief such as the recovery of the value of the property if it had already been sold, the recovery of possession or the enforcement of a mortgage. But the plaintiff is not bound to ask for a consequential relief. He may ask for a mere declaration of the suit and it cannot be dismissed as offending the proviso to Section 34 of the Specific Relief Act, 1963, if the defeated claimant asks for a bare declaration and succeeds, a subsequent suit for possession is not barred under Order 2, Rule 2, Civil Procedure Code. The reason is obvious that the cause of action of recovery of possession is different than the one for filing the suit for declaration under Order 21, Rule 63, C.P.C In this view of the matter the contention raised on behalf of the appellants is devoid of merit.”

38. In (1974) 2 SCC 586 : A.I.R 1975 S.C 207 it was laid down:

“There is no question of applying Order It, Rule 2, C.P.C when the cause of action for the suit before us is different from the causes of actions in the suits which were compromised. The failure of the defendants to carrying out the terms of the compromised decrees constitute a part of the cause of action in the suit before us.”

39. In A.I.R 1977 All. 255, it was held that Order II, rule 2, C.P.C will not be applicable where the earlier suit was for permanent injunction of suit property either out of court or under Section 144 C.P.C and the subsequent suit was for recovery of possession. It was held that the causes of actions in the two suits were different.

40. In A.I.R 1920 Cal. 755 it was laid down as follows:

“The mere fact that the title to the property in claim in both! the suits is the same, and that the property is the same, does not necessarily show that the cause of action is the same.”

41. In my view, the submissions made on behalf of the petitioners are not tenable. Sri ???.O.K Srivastava mainly emphasized two aspects of the master in support of his contention. Firstly, he contended that the sale transaction was one and the execution of the document and the delivery of possession of the property were parts of the same transaction, namely, the transaction of the sale of the property. Secondly, the learned counsel emphasized that the delivery of possession followed the execution of the sale deed and was referable to the sale transaction itself. In this connection, learned counsel referred to the statutory provision contained in Section 55(1)(f) of the Transfer of Property Act which lays down as under:

“Section 55. Rights and liability of buyer and seller. In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:

(1) The seller is bound—

(f) to give, on being required, the buyer or such person, as he directs, such possession) of the property, as its' nature admits.”

42. So far as the first contention of the learned counsel is concerned, it should be seen that under the Civil Procedure Code the expression ‘cause of action’ is not synonymous with the expression ‘transaction’. It is possible that a transaction may give rise to one cause of action and it is equally possible that one transaction may give rise to a plurality of causes of action. In this connection, reference may be made to Order I rule 1, C.P.C which lays down as, follows:—

“Order I, rule 1.—All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same Act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative where, if such persons brought separate suits, any common question of law or fact would arise.”

43. This provision enables different plaintiffs with different causes of action to join in one suit provided their right to relief is in respect of or has arisen out of the same act or transaction or series of acts or transactions where if such plaintiffs brought separate suits, any common question of law and fact would arise. In this connection a reference may be made to the following English decisions:

Duke of Belford v. Ellis, Walters v. Green, Horwood v. Statesman Publishing Co. Ltd., Thomas v. Moore and Drincqbier v. Wood.

44. In this connection the following observations of Lord Moulton in Saminathan Chetty v. Palniappa Chetty are apposite:

“It 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 cause of action, even though they arise from the same transactions. The first part of the clause makes it incumbent on him to ask for the whole of his remedies.”

45. So far as the second contention of the learned counsel is concerned, in my opinion, the fact that certain rights and liabilities arise on the basis of a sale transaction does not mean that all such rights and liabilities can be treated to be a part of the same cause of action. The fact that as a result of the execution of a sale deed the purchaser becomes entitled to get possession of the property sold in his favour, does not mean that the execution of the sale deed and delivery of possession are part of the same cause of action. The execution of the sale deed in itself gives rise to a full cause of action. Delivery of possession in consequence of the sale deed gives rise to another cause of action. If a voidable sale deed has been executed the seller can get the document cancel-Jed on the basis of a perfected cause of action even if the delivery of possession has not been given to the purchaser and possession still remains with the seller. Such a suit for cancellation of the sale dead. cannot be thrown out on the ground that the seller does not have a perfected cause of action till the delivery of possession has been given to the, purchaser in consequence of the execution of the sale deed. The execution of the voidable document itself is a complete cause of action and has no connection with the question of delivery of; possession. The fact that possession has also been delivered may entitle the seller to avoid the sale transaction by getting the sale deed cancelled and also to claim the relief of possession in the same suit. This he is entitled to do because a plaintiff is entitled to combine different causes of action against the same defendant as is clear from Order II, rule 3. C.P.C but he is not bound to do so. If he chooses to file separate suits on the basis of separate causes of action against the same defendant, then there is nothing in the procedural law of our country preventing him to do so. In a suit for cancellation of a sale deed on the ground that it was obtained by fraud, the cause of action is provided to the plaintiff by the execution of the document. This cause of action based on the execution of the document is quite independent from the other cause of action which the same plaintiff gets in view of his dispossession from the property. These two causes of action are still different even if they form part of the same transaction in the sense that as a result of the execution of the sale deed possession was also delivered to the vendee.

46. So far as the discussion of the aforesaid case law is concerned, it is clear that by a consistent catena of cases decided by the Full Benches and Division Benches of this Court, it has been throughout held that the cause of action for a suit for possession is different from the cause of action for a declaration regarding the title to the property on the basis of a voidable transfer deed. Accordingly, in my view, the Board of Revenue rightly held that even though it was open to the plaintiff-opposite party No. 6 to have sought the relief for possession in the earlier suit for cancellation still, she was not bound to do so and it was open to her initially to have got the sale deed cancelled by a decree of the Civil Court and thereafter to have sued for possession in the Revenue Court under Section 209 of the U.P Zamindari Abolition and Land Reforms Act and the subsequent suit was not barred by Order II, rule 2, C.P.C

47. This petition accordingly fails and is dismissed, but, in the circumstances, there will be no order as to costs.