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CASE NO.:

Appeal (civil) 838 of 2004

PETITIONER:

Kunjan Nair Sivaraman Nair

RESPONDENT:

Narayanan Nair and Ors.

DATE OF JUDGMENT: 06/02/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

JUDGMENT

(Arising out of SLP (Civil) No. 7653/2002)

ARIJIT PASAYAT, J.

Leave granted.

Appellant questions correctness of judgment rendered by

learned Single Judge of the Kerala High Court which

dismissed the Second Appeal filed under Section 100 of the

Code of Civil Procedure, 1908 (in short 'the Code'). The

appellant was defendant no.1 in the suit for recovery of

possession on the strength of title, instituted by 7 persons

as plaintiff seeking recovery of possession. There were two

defendants originally. As the first defendant died during

the pendency of the first appeal before the Principal Sub

Judge, Kottayam, his legal heirs were impleaded as

respondents 9 to 13.

Case of the plaintiffs in nutshell was that the plaint

schedule property originally belonged to their deceased

father Narayanan Nair and his mother Kunjupennamma on the

basis of a partition. On the death of mother, her right

also devolved on Narayanan Nair who died on August, 1975.

The suit was filed in Munsiff's Court, Palai on the ground

that the plaintiffs are only legal heirs and hence they had

title over the plaint schedule property. Defendant no.1

filed an application before the Land Tribunal, Palai to

purchase the jenmam right claiming to be cultivating tenant.

The same was dismissed. An appeal against the said order

was also dismissed. The plaintiffs had earlier filed OS

208/77 seeking a decree for declaration of right and title

to the plaint schedule property and their possession.

Though their title was upheld but prayer for injunction was

rejected as possession was not found. Appeal against the

judgment in question did not bring any relief.

Subsequently, the suit to which the present dispute relates

was filed claiming recovery of possession with mesne

profits. The appellant resisted the suit saying that he was

a co-owner, as Narayanan Nair was his uncle. Both Narayanan

Nair and his mother were looking after him and after the

partition which took place when he was very young, Narayanan

Nair gave the plaint schedule property to him and since then

he was in possession and in enjoyment of the property.

Though the application before the Land Tribunal and the

appeal were dismissed, the rights obtained from Narayanan

Nair and his mother remained unaffected. Even if title of

the plaintiffs has been found in the earlier suit that was

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no longer in operation. It was further stated that his son

is residing in the property by constructing a building and

effecting improvements and, therefore, he is entitled to get

value of the building and the improvements. Reference was

made to the Kerala Compensation for Tenants Improvements

Act, 1958 (in short 'the Compensation Act'). It was pointed

out that the suit was barred in terms of Order II Rule 2 of

the Code. The Trial Court framed 3 issues revolving round

the question regarding applicability of Order II Rule 2 of

the Code, and entitlement for the improvements claimed to

have been made. The Courts below had found that the first

suit was one for mere title and injunction, and the cause of

action was not the same as that of the later suit;

therefore, Order II Rule 2 of the Code had no application.

Similarly, it was held that the provisions of Compensation

Act had no application to the facts of the case as there was

no material regarding any improvement. In any event, the

appellant was not a tenant as defined under the Compensation

Act.

Mr. P. Krishnamoorthy, learned senior counsel appearing

for the appellant submitted that the conclusions of the

Courts below are erroneous. Cause of action for both the

suit was identical. In any event, the plaintiffs in the

subsequent suit have claimed reliefs which were sought for

in the earlier suit. To get the benefit of Section 2(d) of

the Compensation Act the appellant is clearly eligible and,

therefore, the Courts below were not correct in rejecting

the stand.

In response, Mr. T.L.V. Iyer, learned senior counsel

appearing for the respondents submitted that the High Court

has recorded categorical findings regarding ineligibility of

the appellant to get benefit under the Compensation Act.

Cause of action of the two suits were entirely different.

The first one was for confirmation of possession, and

present is one for recovery of possession. So, the High

Court was justified in its conclusions about not

applicability of Order II Rule 2 of the Code.

We shall first deal with the question regarding

applicability of Order II Rule 2 of the Code. Said

provision lays down the general principle that suit must

include whole claim which the plaintiff is entitled to make

in respect of a cause of action, and if he does not do so

then he is visited with the consequences indicated therein.

It provides that all reliefs arising out of the same cause

of action shall be set out in one and the same suit, and

further prescribes the consequences if the plaintiff omits

to do so. In other words Order II Rule 2 centers round one

and the same cause of action.

Order II Rule 2 with its sub rules and illustration

reads as follows:

"2. Suit to include the whole claim. - (1)

Every suit shall include the whole of the

claim which the plaintiff is entitled to

make in respect of the cause of action; but

a plaintiff may relinquish any portion of

his claim in order to bring the suit within

the jurisdiction of any Court.

(2) Relinquishment of part of claim. - Where

a plaintiff omits to sue in respect of, or

intentionally relinquishes, any portion of

his claim, he shall not afterwards sue in

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respect of the portion so omitted or

relinquished.

(3) Omission to sue for one of several

reliefs. - A person entitled to more than

one relief in respect of the same cause of

action may sue for all or any of such

reliefs; but if he omits, except with the

leave of the Court, to sue for all such

reliefs, he shall not afterwards sue for any

relief so omitted.

Explanation. - For the purposes of this rule

an obligation and a collateral security for

its performance and successive claims

arising under the same obligation shall be

deemed respectively to constitute but one

cause of action.

Illustration

A lets a house to B at a yearly rent of Rs.

1200. The rent for the whole of the years

1905, 1906 and 1907 is due and unpaid. A

sues B in 1908 only for the rent due for

1906. A shall not afterwards sue B for the

rent due for 1905 or 1907."

A mere look at the provisions shows that once the

plaintiff comes to a court of law for getting any redress

basing his case on an existing cause of action, he must

include in his suit the whole claim pertaining to that cause

of action. But if he gives up a part of the claim based on

the said cause of action or omits to sue in connection with

the same, then he cannot subsequently resurrect the said

claim based on the same cause of action. So far as sub-rule

(3) is concerned, before the second suit of the plaintiff

can be held to be barred by the same, it must be shown that

the second suit is based on the same cause of action on

which the earlier suit was based and if the cause of action

is the same in both the suits and if in the earlier suit

plaintiff had not sued for any of the reliefs available to

it on the basis of that cause of action, the reliefs which

it had failed to press into service in that suit cannot be

subsequently prayed for except with the leave of the court.

It must, therefore, be shown by the defendants for

supporting their plea of bar of Order II, Rule 2, sub-rule

(3) that the second suit of the plaintiff filed is based on

the same cause of action on which its earlier suit was based

and that because it had not prayed for any relief and it had

not obtained leave of the court in that connection, it

cannot sue for that relief in the present second suit. A

Constitution Bench of this case of Gurbux Singh v. Bhooralal

(1964 (7) SCR 831) in this connection has laid down as

under:

"In order that a plea of a bar Order 2, Rule

2(3), Civil Procedure Code should succeed

the defendant who raises the plea must make

out (1) that the second suit was in respect

of the same cause of action as that on which

the previous suit was based, (2) that in

respect of that cause of action the

plaintiff was entitled to more than one

relief, (3) that being thus entitled more

than one relief the plaintiff, without leave

obtained from the Court, omitted to sue for

the relief which the second suit had been

filed. From this analysis it would be seen

that the defendant would have to establish

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primarily and to start with, the precise

cause of action upon which the previous suit

was filed, for unless there is identity

between the cause of action on which the

earlier suit was filed and that on which the

claim in the later suit is based there would

be no scope for the application of the bar.

No doubt, a relief which is sought in a

plaint could ordinarily be traceable to a

particular cause of action but this might,

by no means, be the universal rule. 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 2,

Rule 2, Civil Procedure Code can be

established only if the defendant files in

evidence the pleadings in the previous suit

and thereby proves to the Court the identify

of the cause of action in the two suits. It

is common that the pleadings in C.S. No. 28

of 1950 were not filed by the appellant in

the present suit as evidence in support of

his plea under Order 2, Rule 2, Civil

Procedure Code. The learned trial Judge,

however, without these pleadings being on

the record inferred what the cause of action

should have been from the reference to the

previous suit contained in the plaint as a

matter of deduction. At the stage of the

appeal the learned District Judge noticed

this lacuna in the appellant's case and

pointed out, in our opinion rightly, that

without the plaint in the previous suit

being on the record, a plea of a bar under

Order 2, Rule 2, Civil Procedure Code was

not maintainable."

The above position was again illuminatingly highlighted

by this Court in Bengal Waterproof Limited v. Bombay

Waterproof Manufacturing Company and Another (1997 (1) SCC

99).

Order II Rule 2, sub-rule (3) requires that the cause

of action in the earlier suit must be the same on which the

subsequent suit is based. Therefore, there must be identical

cause of action in both the suits, to attract the bar of

Order II sub-rule (3). The illustrations given under the

rule clearly brings out this position. Above is the ambit

and scope of the provision as highlighted in Gurbux Singh's

case (supra) by the Constitution Bench and in Bengal

Waterproof Limited (supra). The salutary principle behind

Order II Rule 2 is that a defendant or defendants should not

be vexed time and again for the same cause by splitting the

claim and the reliefs for being indicated in successive

litigations. It is, therefore, provided that the plaintiff

must not abandon any part of the claim without the leave of

the Court and must claim the whole relief or entire bundle

of reliefs available to him in respect of that very same

cause of action. He will thereafter be precluded from so

doing in any subsequent litigation that he may commence if

he has not obtained the prior permission of the Court.

Rule of res judicata is contained in Section 11 of the

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Code. Bereft of all its explanations, namely, Explanations I

to VIII, Section 11 is quoted below :

"11. Res judicata. - No court shall try any

suit or issue in which the matter directly

and substantially in issue has been directly

and substantially in issue in a former suit

between the same parties, or between parties

under whom they or any of them claim,

litigating under the same title, in a court

competent to try such subsequent suit or the

suit in which such issue has been

subsequently raise, and has been heard and

finally decided by such court."

"Res judicata pro veritate accipitur" is the full maxim

which has, over the years, shrunk to mere "res judicata".

Section 11 contains the rule of conclusiveness of the

judgment which is based partly on the maxim of Roman

Jurisprudence "Interest reipublicae ut sit finis litium" (it

concerns the State that there be an end to law suits) and

partly on the maxim "Nemo debet bis vexari pro una at eadem

causa" (no man should be vexed twice over for the same

cause). The section does not affect the jurisdiction of the

court but operates as a bar to the trial of the suit or

issue, if the matter in the suit was directly and

substantially in issue (and finally decided) in the previous

suit between the same parties litigating under the same

title in a court, competent to try the subsequent suit in

which such issue has been raised.

The above position was noted in Deva Ram and Another v.

Ishwar Chand and Another (1995 (6) SCC 733).

The doctrine of res judicata differs from the principle

underlying Order II Rule 2 in that the former places

emphasis on the plaintiff's duty to exhaust all available

grounds in support of his claim, while the latter requires

the plaintiff to claim all reliefs emanating from the same

cause of action. Order II concerns framing of a suit and

requires that the plaintiffs shall include whole of his

claim in the framing of the suit. Sub-rule (1), inter alia,

provides that every suit shall include the whole of the

claim which the plaintiff is entitled to make in respect of

the very same cause of action. If he relinquishes any claim

to bring the suit within the jurisdiction of any Court, he

will not be entitled to that relief in any subsequent suit.

Further sub-rule (3) provides that the person entitled to

more than one reliefs in respect of the same cause of action

may sue for all or any of such reliefs; but if he omits,

except with the leave of the Court, to sue for such relief

he shall not be afterwards be permitted to sue for relief

so omitted.

The expression "cause of action" has acquired a

judicially-settled meaning. In the restricted sense cause of

action means the circumstances forming the infraction of the

right or the immediate occasion for the action. In the wider

sense, it means the necessary conditions for the maintenance

of the suit, including not only the infraction of the right,

but the infraction coupled with the right itself.

Compendiously the expression means 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.

Every fact which is necessary to be proved, as distinguished

from every piece of evidence which is necessary to prove

each fact, comprises in "cause of action".

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In Halsbury's Laws of England (Fourth Edition) it has

been stated as follows:

"'Cause of action' has been defined as

meaning simply a factual situation the

existence of which entitles one person to

obtain from the Court a remedy against

another person. The phrase has been held

from earliest time to include every fact

which is material to be proved to entitle

the plaintiff to succeed, and every fact

which a defendant would have a right to

traverse. 'Cause of action' has also been

taken to mean that particular act on the

part of the defendant which gives the

plaintiff his cause of complaint, or the

subject matter of grievance founding the

action, not merely the technical cause of

action."

As observed by the Privy Council in Payana v.

Pana Lana (1914) 41 IA 142, the rule 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 or different causes of action, even

though they arise from the same transaction. One great

criterion is, when the question arises as to whether

the cause of action in the subsequent suit is

identical with that in the first suit whether the same

evidence will maintain both actions. (See Mohammad

Khalil Khan v. Mahbub Ali Mian (AIR 1949 P.C. 78)

In Inacio Martins (deceased through LRs.) v. Narayan

Hari Naik and Ors. (1993 (3) SCC 123), an almost identical

question arose. In that case, the plaintiff had prayed for

protection of his possession by a prohibitory injunction.

That prayer was refused. Subsequent suit was for recovery

of possession. This Court held that in the former suit the

only relief that the Court could have granted was in regard

to the declaration sought for which the Court could not have

granted in view of the provisions of Specific Relief Act.

The cause of action for the first suit was based on the

apprehension about likely forcible dispossession. The cause

of action of the suit was not on the premise that he had, in

fact, been illegally and forcefully dispossessed and needed

the Courts' assistance for restoration of possession. In

that background this Court held that subsequent suit was

based on a distinct cause of action not found in or formed

the subject matter of the former suit. The ratio of the

decision has full application to the facts of the present

case.

In Deva Ram's case (supra) it was held that where the

previous suit was for recovery for loan which was dismissed

on the ground that the document on the basis of which the

suit was filed was not a sale deed but agreement for sale,

subsequent suit for recovery of possession on the basis of

title was not hit by Order II Rule 2 as the cause of action

in the two suits were not identical or one and the same.

The Courts below were, therefore, justified in holding

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that Order II Rule 2 of the Code had no application to the

facts of the case. Consequently, the decree passed in

favour of the plaintiffs for recovery of possession shall

stand affirmed and the appeal to that extent shall stand

dismissed.

That brings us to the residual question about

eligibility of the appellant to make a claim for

compensation for the alleged improvements made. Section 2(d)

of the Compensation Act reads as follows:-

"2(d): "Tenant" \026 "tenant" with its

grammatical variations and cognate

expressions includes \026

(i) a person who, as lessee, sub-lessee,

mortgagee or sub-mortgagee or in good faith

believing himself to be lessee, sub-lessee,

mortgagee, or sub-mortgagee of land, is in

possession thereof.

(ii) a person who with the bona fide

intention of attorning and paying a

reasonable rent to the person entitled to

cultivate or let waste-land, but without the

permission of such person, brings such land,

under cultivation and is in occupation

thereof as cultivator; and

(iii) a person who comes into possession of

land belonging to another person and makes

improvements thereon in the bona fide belief

that he is entitled to make such

improvements."

It is to be noted that the three clauses of Section

2(d) use different expressions to meet different situations

and class of persons. While clause (i) refers to a person

who is a lessee or sub-lessee, or mortgagee or sub-mortgagee

or in "good faith" believing himself to be any one of the

above such persons, clause (ii) deals with a person with

"bona fide intention" by doing any one of the things

enumerated is in occupation as cultivator, and clause (iii)

deals with a person who comes into possession of land

belonging to another and makes improvement thereon in the

"bona fide belief" that he is entitled to make such

improvements. According to the appellant, both clauses (i)

and (iii) are applicable to him. Clause (i) deals with the

person who bona fide believes himself to be a lessee in

respect of land in question. The fact that he asserted a

claim for purchase of jenmam rights, irrespective of the

rejection of the claim would go to show that at any rate he

was believing in good faith to be one such person viz.,

lessee. Clause (iii) encompasses a person who come into

possession of land belonging to another person and makes

improvements thereon with the bona fide belief that he is

entitled to make such improvements. The appellant was

claiming himself to have been put in possession as the

nephew of late Narayanan Nair, and as a person in such

possession - claims to have made certain improvements.

Indisputably he was in possession. Though, in view of the

judgments of the Courts below his claim to assert a title in

him has been rejected and his possession cannot be a lawful

possession to deny the right of the real owner to recover

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possession or assert any adverse claim against the lawful

owner to any longer squat on the property \026 his initial

induction or entering into possession cannot be said to be

by way of encroachment. Whether such a person could not

claim to have entertained a bona fide belief that he is

entitled to make such improvements has to be factually

determined with reference to the point of time as to when he

really made such improvements. If the alleged improvements

are found to have been made after the disputes between

parties commenced then only it may not be in bona fide

belief. Improvements made, if any, even thereafter only

cannot fall under clause (iii). The Court dealing with the

matter is required to examine the claim and find out whether

the prescriptions in the different clauses individually or

cumulatively have any application to the claim of the

appellant for improvements alleged to have been made, if so

really made. The Courts below have noted that the appellant

made a claim that he was a lessee and thereafter made the

improvements. The Courts below do not appear to have

considered the issues arising at any rate in respect of the

claim for alleged improvements said to have been from

aforesaid angle. As factual adjudication is necessary as to

whether appellant acted in good faith or with bona fide

belief as envisaged, has to be decided taking into

consideration the materials placed before the Court in that

regard. It is, therefore, appropriate that the Trial Court

should consider this aspect afresh uninfluenced by any

observation made by it earlier or by the Appellate Courts.

We also do not express any conclusive opinion on the merit

of the claim except indicating the parameters relevant for

such consideration. For that limited purpose, the matter is

remitted to the Trial Court which shall make an endeavour to

adjudicate the matter within six months from the date of

judgment, after allowing the parties to place material in

support of their respective stands.

The appeal is partly allowed to the extent indicated

and in other respects shall stand dismissed. Costs made

easy.

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