Karnataka High Court
Kallanagowda Sanganagouda Patil vs Bhimanagouda Sanganagouda Patil Since ... on 16 January, 2024
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NC: 2024:KHC-K:590
RSA No. 7100 of 2009
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.7100 OF 2009 (PAR)
BETWEEN:
KALLANAGOWDA S/O SANGANGOUDA PATIL,
SINCE DECEASED BY HIS LRS.
1(A) SMT. KASTURIBAI
W/O LATE KALLANAGOUDA PATIL,
AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O INGALESHWAR, TQ: BASAVANA BAGEWADI,
BIJAPUR DISTRICT.
1(B) SMT. JAYASHREE
D/O LATE KALLANAGOUDA PATIL
(W/O NAGAGOUDA),
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O H.NO.142, CHIKKARUGI, TQ: SINDAGI,
Digitally signed DIST: BIJAPUR.
by SACHIN
Location: HIGH
COURT OF 1(C) SMT. VIJAYASHREE
KARNATAKA
D/O LATE KALLANAGOUDA PATIL
(W/O GURAPPA),
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O INGALESHWAR,
TQ: BASAVAN BAGEWADI,
BIJAPUR DISTRICT.
1(D) SMT. MAHADEVI
D/O LATE KALLANAGOUDA PATIL
(W/O MELAPPA),
AGE: 44 YEARS, OCC: HOUSEHOLD,
R/O MASBINAL,
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NC: 2024:KHC-K:590
RSA No. 7100 of 2009
TQ: BASAVANA BAGEWADI,
BIJAPUR DISTRICT.
1(E) JAGADEVI
D/O LATE KALLANNAGOUDA PATIL,
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O INGALESHWAR, TQ: BASAVANA BAGEWADI,
BIJAPUR DISTRICT.
1(F) BASAWARAJ
S/O LATE KALLANAGOUDA PATIL,
SINCE DECEASED BY HIS LRS
1(F)(A) SMT. MANGALA W/O LATE BASAWARAJ PATIL,
AGE: 34 YEARS, OCC: HOUSEHOLD,
R/O AT POST: KHATIJAPUR, TQ. DIST. BIJAPUR.
1(F)(B) DHARESH S/O LATE BASAWARAJ PATIL,
AGE: 09 YEARS (MINOR), OCC: NIL,
UNDER GUARDIANSHIP OF HIS NATURAL MOTHER
SMT. MANGALA W/O LATE BASAWARAJ PATIL,
R/O AT POST: KHATIJAPUR, TQ. DIST. BIJAPUR.
1(F)(C) SRI. ASHWATH S/O LATE BASAVARAJ PATIL,
AGE: 06 (MINOR), OCC: NIL,
UNDER GUARDIANSHIP OF HIS NATURAL MOTHER
SMT. MANGALA W/O LATE BASAWARAJ PATIL,
R/O AT POST: KHATIJAPUR, TQ. DIST. BIJAPUR.
...APPELLANTS
(BY SRI. MANVENDRA REDDY &
SRI NARENDRA M. REDDY, ADVOCATES)
AND:
1. BHIMANAGOUDA
S/O SANGANAGOUDA PATIL,
SINCE NOW DEAD BY L.RS.
A) BHIMAWWA W/O BHIMANAGOUDA PATIL,
AGED ABOUT 70 YEARS,
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NC: 2024:KHC-K:590
RSA No. 7100 of 2009
OCC: HOUSEHOLD WORK,
R/O INGALESHWAR,
BASAVANABAGEWADI TALUK,
BIJAPUR DISTRICT.
B) RATNABAI W/O BHIMGOUDA PATIL,
AGED ABOUT 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O DINDAWAR, BIJAPUR DISTRICT.
C) KASHIBAI W/O KASAPPA ISARAGOUDA,
AGED ABOUT 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O KUMATAGI TAL, BIJAPUR DISTRICT.
D) SANGANAGOUDA S/O BHIMANAGOUDA PATIL,
AGED ABOUT 45 YEARS, OCC. AGRICULTURE,
R/O INGALESHWAR, TQ .B. BAGEWADI,
BIJAPUR DISTRICT.
E) SARUBAI W/O SHRISHAIL ISRAGOUD,
AGED ABOUT 43 YEARS,
OCC: HOUSEHOLD WORK,
R/O KUMATAGI TALUK, BIJAPUR DISTIRCT.
F) GANGABAI W/O SHARANAGOUDA PATIL,
AGED ABOUT 37 YEARS,
OCC: HOUSEHOLD WORK,
R/O SUSALADI, TQ. JAT,
DIST. SANGLI (MAHARASHTRA).
G) SIDDABAI W/O NINGOUD CHANDAKOTI,
AGED ABOUT 35 YEARS,
OCC: HOUSEHOLD WORK,
R/O SHIVANAGI, TQ. DIST. BIJAPUR.
H) RAJESHWARI
D/O BHIMARAYANAGOUDA PATIL,
AGED ABOUT 20 YEARS,
OCC: HOUSEHOLD WORK,
R/O INGALESHWAR, TQ. B.BAGEWADI,
BIJAPUR DISTRICT.
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NC: 2024:KHC-K:590
RSA No. 7100 of 2009
2. PARVATI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O TORAVI, TALUK & DIST. BIJAPUR.
3. INDRABAI W/O NINGOND PATIL,
AGE: 51 YEARS, OCC: SERVICE,
R/O DINDAWAR,TQ. B. BAGEWADI,
BIJAPUR DISTRICT.
4. RAMESH S/O BHIMARAYAGOUDA PATIL,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O INGALESHWAR, TQ. B. BAGEWADI,
BIJAPUR DISTRICT.
5. SURESH S/O BHIMARAYAGOUDA PATIL,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O DINDAWAR, TQ. BASAVANA BAGEWADI,
BIJAPUR DISTRICT.
...RESPONDENTS
(BY SRI.D.P AMBEKAR ADVOCATE FOR R1(D);
R1(A), R1(C), R1(E) TO R1(H) & R3 TO R5 ARE SERVED,
V/O DATED 28.07.2010 APPEAL AGAINST R1(B) & R2 STANDS
DISMISSED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
JUDGEMENT AND DECREE OF THE CIVIL JUDGE (SR.DN),
BASAVANABAGEWADI IN R.A.NO.117/2003 DATED 31.07.2008
AND DECREE THE SUIT OF THE PLAINTIFF/APPELLANT IN
O.S.NO.108/1993 ON THE FILE OF THE CIVIL JUDGE (JR.DN),
BASAVANA BAGEWADI AT BIJAPUR.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-K:590
RSA No. 7100 of 2009
JUDGMENT
This appeal is preferred by the plaintiff/appellant, challenging the judgment and decree dated 31.07.2008 in R.A. No.117/2003 on the file of Civil Judge (Sr.Dn.), Basavan Bagewadi (for short 'First Appellate Court'), setting aside the judgment and decree dated 13.04.2000 in O.S. No.108/1993 on the file of Civil Judge (Jr.Dn.), Basavan Bagewadi (for short 'Trial Court'), decreeing the suit of the plaintiff.
2. For the sake of convenience, the parties in the appeal shall be referred to in terms of their status and ranking before the Trial Court.
3. It is the case of the plaintiff that, land bearing Sy.No.482 measuring 3 acres 24 guntas situate at Ingaleswar village and the house property mentioned in the plaint are the joint family properties of the plaintiff and defendant No.1. It is averred in the plaint that, apart from the aforementioned properties, plaintiff and defendant No.1 have got other family properties and those properties -6- NC: 2024:KHC-K:590 RSA No. 7100 of 2009 were partitioned during the year 1969 and the same has been acted upon by the parties. It is further stated that, though the suit properties were jointly held by the plaintiff and defendant No.1, as there is dispute with regard to the sharing of the property, the plaintiff has preferred O.S.No.108/1993, seeking relief of partition and separate possession in respect of the subject matter of the suit.
4. On service of notice, defendant No.1 entered appearance and filed detailed written statement alleging that the suit properties are not joint family properties and accordingly denied the averments made in the plaint. It is the specific case of defendant No.1 that, the plaintiff has filed suit in O.S. No.124/1972, seeking partition in respect of some of the properties mentioned therein and as the said suit has reached finality, took up a contention that the suit is barred under Order II Rule 2 of the Code of Civil Procedure and accordingly sought for dismissal of the suit.
Defendant No.2 entered appearance and filed written statement, contending that the suit properties are not -7- NC: 2024:KHC-K:590 RSA No. 7100 of 2009 undivided joint family properties and as such, she claimed 1/3rd share in the suit schedule properties.
5. Based on the pleadings on record, the Trial Court framed the issues for its consideration.
6. In order to substantiate their case, plaintiff has examined one witness as PW.1 and got marked ten documents as Exs.P1 to P10. The defendants have examined four witnesses as DW.1 to DW.4 and got marked four documents as Exs.D1 to D4.
7. The Trial Court after considering the material on record, by its judgment and decree dated 13.04.2000, decreed the suit of the plaintiff, holding that the plaintiff is entitled for half share in the suit schedule properties.
Feeling aggrieved by the same, defendant No.1 has filed R.A. No.117/2003 before the First Appellate Court and the appeal was resisted by the plaintiff.
8. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated -8- NC: 2024:KHC-K:590 RSA No. 7100 of 2009 31.07.2008, allowed the appeal and as such, set aside the judgment and decree passed by the Trial Court in O.S.No.108/1993. Feeling aggrieved by the same, the plaintiff has filed this Regular Second Appeal.
9. This Court vide order dated 25.03.2010, formulated the following substantial question of law for consideration:
"Whether the first Appellate Court was justified in holding that the suit was bad for not including the items of property which were indisputably kept joint in view of the family debts and maintenance of mother and therefore, misapplying the principles of Order II Rule 2 of the Code of Civil Procedure?"
10. I have heard Sri Manvendra Reddy, learned counsel appearing for the appellants and Sri D.P.Ambekar, learned counsel appearing for respondent No.1(D).
11. Sri Manvendra Reddy, learned counsel appearing for the appellants contended that the finding recorded by the First Appellate Court, allowing the appeal -9- NC: 2024:KHC-K:590 RSA No. 7100 of 2009 on sole reason that the suit is barred under Order II Rule 2 of CPC taking into consideration the judgment and decree in O.S. No.124/1972, is not correct. He further contended that, issue in respect of the subject matter was also concluded in O.S. No.35/1982, wherein the plaintiff and defendant No.1 together have filed suit against the Panchayat of Ingaleshwar, seeking relief of permanent injunction. Therefore, he contended that the finding recorded by the First Appellate Court is contrary to the judgment of Hon'ble Supreme Court in the case of Bapusaheb Chimasaheb Naik-Nimbalkar (Dead through Legal Representatives) and Another vs. Mahesh Vijaysinha Rajebhosale and Others reported in (2017) 7 SCC 769 and sought for interference of this Court.
12. Per contra, Sri D.P. Ambekar, learned counsel appearing for respondent No.1(D) submitted that the plaintiff is disentitle from filing a fresh suit on the very same cause of action, which has been taken into
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 consideration in O.S. No.124/1972 and therefore, sought to justify the impugned judgment and decree.
13. Having heard the learned counsel appearing for the parties, the core question to be answered in this appeal is, whether the defendants have made out a case for holding that the cause of action in O.S. No.124/1972 is also same in O.S. No.108/1993?
14. In this regard, I have carefully examined the finding recorded by both the Courts below and issue No.4 is relating to the averments made by the defendants in the written statement relating to Order II Rule 2 of CPC. The finding recorded by the Trial Court is that, the plaintiff had taken a plea that certain properties have not been included in O.S. No.124/1972 in view of pendency of dispute with the Panchayat as well as initiation of fragmentation and consolidation proceedings in respect of the subject matter of the suit. The question to be answered in this appeal is with regard to the applicability of Order II Rule 2 of CPC. Undisputably, the suit is filed by
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 the plaintiff seeking relief of partition with consequential relief of separate possession. In identical case, in respect of the relief of partition and separate possession, the Hon'ble Supreme Court in Bapu Saheb's case (supra) at paragraphs 16 and 17 held as follows:
"16. Rule 2 Order 2 CPC does not apply if the cause of action in the subsequent suit is different from that of the former suit as held by this Court in State of M.P. v. State of Maharashtra reported in (1977) 2 SCC 288: 1977 SCC (L&S) 232. In State of Maharashtra v. National Construction Co.
reported in (1996) 1 SCC 735, when the first suit was filed to enforce bank guarantee whereas the second suit to claim damages for breach of underlying contract, this Court laid down that the subsequent suit was not barred by Order 2 Rule 2 CPC. In the case of continuing or recurring wrong there would be corresponding continuing or recurring causes of action when the first suit was based on infringement of the plaintiff's trade mark, second suit was on the continuing act or infringement of its trade mark and continuous passing of action subsequent to filing of the earlier suit, in Bengal Waterproof Lid. v. Bombay Waterproof Mfg. Co. reported in (1997)1 SCC 99, it
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 was held that the cause of actions in two suits were different as such the bar of Order 2 Rule 2 CPC was not attracted. The essential requirement for applicability of Order 2 Rule 2 CPC is to establish the identity of causes of action in the previous suit and the subsequent suit so as to attract the bar as held in Deva Ram v. Ishwar Chand reported in (1995) 6 SCC 733 and Gurbux Singh v. Bhooralal reported in AIR 1964 SC 1810.
17. In the instant case, it cannot be said that the second suit for partition was in respect of the same cause of action as that on which the previous suit was based. In respect of the cause of action of the previous suit the plaintiff was not entitled to more than one relief. Hence, it could not be said that the plaintiff has omitted to sue for relief for which the second suit has been filed. Suit for partition with respect to joint property is based on continuing cause of action, as such the suit for partition could not be said to be barred by Order 2 Rule 2 CPC. Submission to the contrary is too tenuous to be accepted."
15. Applying the aforementioned principle to the case on hand, it is urged by the plaintiff that he has omitted to sue for claiming relief on the ground that there
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 were certain dispute with regard to the subject matter of the properties in the latter suit. As per Ex.D4, the judgment and decree passed by the Competent Court in O.S. No.35/1982, the relief claimed is permanent injunction against the defendants. Taking into account the scope and ambit of Order II Rule 2 of CPC, the plain language employed in the said provision makes it clear that, if a party omits any portion of the claim or omit any of the remedy in respect of cause of action, then such party shall not be permitted to pursue the omitted claim or omitted remedy in the later proceedings between the same parties. The requirement of the aforementioned provision is that, every party to the proceedings should conclude the whole of the claim or defence with respect to the cause of action which gives occasion for and forms foundation of the plaint or the written statement. If the cause of action enables the parties for a larger relief than to which the plaintiff had limited his claim, then plaintiff cannot thereafter seek the recovery of the balance of cause of action by instituting independent proceedings.
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 The underlined principle of Order II Rule 2 of CPC is based on the principle that the defendant may not be and should not be vexed twice on the same cause of action. The said principle relating to Order II Rule 2 of CPC was considered by the Hon'ble Supreme Court in the case of Pramod Kumar and Anr. v. Zalak Singh and Ors. reported in AIR 2019 SC 2465, wherein at paragraphs 22 to 35 it is held as under:
"22. In the case of Mohammad Khalil Khan v. Mehbub Ali Mian, AIR (36) 1949 Privy Council 78, the earlier suit related to the property at Oudh. The parties belonged to the Sunni sect and the properties belonged to one Rani Barkatunnissa who owned properties at Shahjahanpur and Oudh. The first suit did not include the property at Shahjahanpur. The Court proceeded to uphold the views taken by the Courts in India and maintained the finding that second suit, in relation to the property at Shahjahanpur, was barred by virtue of Order II Rule 2. It would be profitable to refer to paragraphs 45 and 46 as they throw light upon what constitutes cause of action:
"45. Shortly stated O.2, R.2, Civil P.C., enacts that if a plaintiff fails to sue for the whole of the claim
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 which he is entitled to make in respect of a cause of action in the first suit, then he is precluded from suing in a second suit in respect of the portion so omitted. As pointed out in Moonshee Buzloor Ruheem v. Shumsunnissa Begum, (1867) 11 M.J.A.
551. The correct test in all cases of this kind is, whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation of the former suit....
The object of the rule is clearly to avoid splitting up of claims and to prevent multiplicity of suits".
46. "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."
I agree with the definition given by the Master of Rolls of a cause of action, and that it includes every fact which it would be necessary to prove, if traversed, in order to enable a plaintiff to maintain his action.
Now 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
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 prayed for by the plaintiff. It refers entirely to the grounds set out 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."
23. The Privy Council proceeded to summarize the principles in paragraph 61, which reads as follows:
"61. The principles laid down in the cases thus far discussed may be thus summarized:
(1) The correct test in cases falling under O.2 R.2.
is "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.
(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.
(3) If the evidence to support the two claims is different, then the causes of action are also different.
(4) The causes of action in the two suits may be considered to be the same if in substance they are identical.
(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
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 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."
24. Still further, in paragraph 63, the Court has proceeded to conclude as follows:
"63. The plaintiffs' cause of action to recover the properties consists of those facts which would entitle them to establish their title to the properties. These facts are the same with respect to both properties, these being, that Rani Barkatunnissa was the owner of the properties; that she died on 13th February,1927, that she was a Sunni by faith and that they are her heirs under the Muhammadan law.
Having regard to the conduct of the parties their Lordships take the view that the course of dealing by the parties in respect of both properties was the same and the denial of the plaintiffs' title to the Oudh property and the possession of the Shahjahanpur property by the defendants obtained as a result of that denial formed part of the same transaction. On this question, the learned Judges of the High court have expressed their opinion in two places in their judgment as follows:
"In the case before us the trespass on title or slander of title in the case so far as the Oudh suit
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 was concerned was not distinct and different either in point of time or in point of character from the trespass on possession in the case of the Shahjahanpur property..."
Again, it is stated as follows:
"Here in the present case we find that the two trespasses, one on the Shahjahanpur property and the other on the Oudh property were similar in character and formed part of the same transaction and the evidence to prove the facts which it was necessary for the plaintiffs to prove... was the same and the bundle of essential facts was also the same."
25. At this juncture, we may advert to Order II Rule 2, which 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
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 afterwards sue in 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 n 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."
26. Order II Rule 2(1) provides that a plaintiff is to include the whole of the claim, which he is entitled to make, in respect of the cause of action. However, it is open to him to relinquish any portion of the claim. Order II Rule 2 provides for the consequences of relinquishment of a part of a claim and also the consequences of omitting a part of the claim. It declares that if a plaintiff omits to sue or relinquishes intentionally any portion of his claim, he shall be barred from suing on that portion so omitted or relinquished. Order II Rule 2(3), however, deals with the effect of omission to sue for all or any of the reliefs in respect of the same cause of action. The consequences of such omission will be to precluded plaintiff from suing for any relief which is so omitted. The only exception is when he obtains leave of the Court. In a recent judgment of this Court, the distinction between Order II Rule 2(1) and Order II Rule 2(3) has been
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 succinctly brought out in Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd., (2013) 1 SCC 625. This Court, inter alia, has held as follows:
"Order 2 Rule 1 CPC requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order 2 Rule 2 CPC contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, Order 2 Rule 2 makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. Leave of the Court is contemplated by Order 2 Rule 2(3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the court had been obtained. It is clear from a conjoint reading of the provisions of Order 2 Rules 2(2) and (3) that the aforesaid two sub-rules of Order 2 Rule 2 contemplate two different situations, namely, where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particular relief he had obtained leave of the court in the first suit.
The object behind the enactment of Order 2 Rules 2(2) and (3) CPC is not far to seek. The Rule engrafts a laudable principle that discourages/ prohibits vexing the defendant again and again by multiple suits except in a situation where one of the several reliefs, though available to a plaintiff, may not have been claimed for a good reason. A later suit for such relief is contemplated only with the leave of the court with the leave of the court which leave, naturally, will be granted upon due satisfaction and for good and sufficient reasons."
27. Thus, in respect of omission to include a part of the claim or relinquishing a part of the claim flowing from a cause of action, the result is that the plaintiff is totally barred from instituting a suit later in respect of the claim so omitted or relinquished. However, if different reliefs could be sought for in one suit arising out of a cause of action, if leave is obtained from the Court, then a second suit, for a different relief than one claimed in the earlier suit.
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 can be prayed for. There are three expressions Which are found in Order II Rule 2. Firstly. there is reference to the word "cause of action", secondly the word "claim is alluded to" and finally reference is made to "relief".
28. The defence, which is set up by the defendants, would be irrelevant to determine what cause of action means. The reliefs, which are sought by the plaintiffs, will not be determinative of what constitutes cause of action. Cause of action, as explained by the Privy Council in Mohammad Khalil Khan case (AIR 1949 PC 78) (supra), means the Media through which the plaintiff seeks to persuade the Court to grant him relief. It could, therefore, be said to be the factual and legal basis or premise upon which the Court is invited by the plaintiff to decide the case in his favour. It is also clear that the cause of action, in both the suits, must be identical. In order that it be identical, what matters, is the substance of the matter.
29. In Coffee Board case (AIR 2014 SC 2301, Paras 12, 15, and 16) (supra), the respondent purchased coffee at the export auctions and exported them to certain countries. He filed two suits. The Coffee Board had provided for stamps system for exporting of coffee. Complaint of the plaintiff was that the defendants failed to supply the stamps but
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 there was delay and it resulted in losses. This is what the Court held:
"12. The courts in order to determine whether a suit is barred by Order 2 Rule 2 must examine the cause of action pleaded by the plaintiff in his plaints filed in the relevant suits (see S. Nazeer Ahmed v. State Bank of Mysore; 2007 (11) SCC 75) : (AIR 2007 SC 989). Considering the technicality of the plea of Order 2 Rule 2, both the plaints must be read as a whole to identify the cause of action, which is necessary to establish a claim or necessary for the plaintiff to prove if traversed. Therefore, after identifying the cause of action if it is found that the cause of action pleaded in both the suits is identical and the relief claimed in the subsequent suit could have been pleaded in the earlier suit, then the subsequent suit is barred by Order 2 Rule 2.
xxx xxx xxx
16. In the plaint in OS No. 3150 of 1985 being the earlier suit, it has been claimed by the respondent being the plaintiff therein that the appellant being the defendants failed to supply ICO stamps for 268.08 tonnes of coffee purchased by him for export between 11-8-1982 and 8-9-1982, in spite of its assurances leading to delay in the shipment of the coffee resulting in losses to the plaintiff. On the
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 basis of the same, the respondent claimed for the losses suffered by him along with damages. The respondent further averred that the cause of action for the suit arose on various dates when the respondent purchased coffee from the appellant in the auctions held by them on the assurance that the ICO stamps will be supplied by the appellant to them.
17. The cause of action in the above suit is the failure of ICO to supply stamps to the respondent in spite of its assurances. The respondent to ensure the success of his claim, was required to prove that on account of the omission of the appellant i.e failure to provide ICO stamps for the coffee purchased by them, the respondent suffered losses."
30. The Court went on further hold that plaintiff could only succeed only by proving failure by the appellant to provide stamps. The grounds of difference in the suit were found to be as regards the amount of coffee and the date when the same was purchased.
31. The respondents sought support from the judgment in Alka Gupta v. Narender Kumar Gupta (2010) 10 SCC 141: (AIR 2011 SC 9). The appellants and the respondents entered into a
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 partnership to run an institute at place "P" in New Delhi. Thereafter, an agreement was entered into to sell the undivided half share. The respondents paid only part of the sale consideration which led to the suit by the appellant for the balance amount. The suit was decreed. Thereafter, the appellant filed subsequent suit for rendition of accounts for the period from 05.04.2000, which was date on which the partnership deed was executed till 31.07.2004. According to the appellant, the partnership was one at will and was dissolved. This Court overturned the view of the High Court that the suit was barred by Order II Rule 2 and by the principles of constructive res judicata. The Court followed the judgment of this Court in Gurbux Singh v. Bhooralal, AIR 1964 SC 1810 and inter alia, held as follows:
"A Division Bench upheld that decision on the grounds that the suit was barred by Order 2 Rule 2 CPC and that the appellant had settled all her claims with the respondent under the bayana agreement dated 29.06.2004. The present appeal was then filed by special leave.
The cause of action for the first suit was non- payment of price under the agreement of sale dated 29.06.2004, whereas the cause of action for the second suit was non-settling of accounts of a dissolved partnership constituted under the deed
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 dated 05.04.2000. Merely because the agreement of sale related to an immovable property at R and the business run therein under the name of "Takshila Institute" and the second suit referred to a partnership in regard to business run at P also under the same name of Takshila Institute, it could not be assumed that the two suits related to the same cause of action so as to attract Order 2 Rule 2 CPC."
32. As regards the plea of res judicata, here is what the Court held as follows:-
"Plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same. In the present case, there was no plea of constructive res judicata, nor had the appellant- plaintiff an opportunity to meet the case based on such plea. Res judicata means "a thing adjudicated", that is, an issue that is finally settled by judicial decision. The principle of constructive res judicata emerges from Explanation IV to Section 11 CPC when read with Explanation III thereof both of
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 which explain the concept of "matter directly and substantially in issue". In view thereof, even though a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the second suit in view of the principle of constructive res judicata. Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised, whereas Order 2 Rule 2 CPC relates to reliefs which ought to have been claimed on the same cause of action but not claimed."
33. In Union of India v. H.K. Dhruv, (2005) 10 SCC 218 : (AIROnline 2004 SC 309), the Court held, inter alia, as follows:
"4. Having heard the learned Senior Counsel for the appellant as also the respondent appearing in person, we are satisfied that no fault can be found with the view taken by the High Court. In order to attract applicability of the bar enacted by Order 2 Rule 2 CPC, it is necessary that the cause of action on which the subsequent claim is founded should have arisen to the claimant when he sought for enforcement of the first claim before any court. On the facts found and as recorded in the judgment of the High Court and with which we find no reason to differ, the second demand raised by the respondent was not available to be made a part of the claim
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 raised in the first application. The bar enacted by Order 2 Rule 2 CPC is clearly not attracted."
(Emphasis supplied)
34. In S. Nazeer Ahmed v. State Bank of Mysore, (2007) 11 SCC 75 : (AIR 2007 SC 989), the appellant/defendant borrowed some money from the plaintiffs bank by hypothecating and by mortgaging two items. The money suit filed by the bank was decreed. The proceedings in execution was unsuccessful as the bus, which was hypothecated, could not be traced. The bank prayed to proceed against the mortgaged property in execution. It was resisted by the appellant by pointing out that there was no decree on the mortgage and the bank could only attach the properties and could not sell it straightaway. The said objection was upheld. Thereupon, the bank instituted the second suit for enforcement of the equitable mortgage. This Court proceeded to take a view that the cause of action in the second suit was different. The Court also further drew support from Order XXXIV Rule 14 and proceeded to hold as follows:
"14. Applying the test so laid down, it is not possible to come to the conclusion that the suit to enforce the equitable mortgage is hit by Order 2 Rule 2 of the Code in view of the earlier suit for
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 recovery the mid term loan, especially in the context of Order 34 Rule 14 of the Code. The two causes of action are different, though they might have been parts of the same transaction. Even otherwise, Order 34 Rule 14 read with Rule 15 removes the bar if any that may be attracted by virtue of Order 2 Rule 2 of the Code. The decision of the Rangoon High Court in Pyu Municipality v. U. Tun Nyein (AIR 1933 Rangoon 158) relied on by learned counsel for the appellant does not enable him to successfully canvass for the position that the present suit was barred by Order 2 Rule 2 of the Code, as the said decision itself has pointed out the effect of Order 34 Rule 14 and in the light of what we have stated above."
35. Let us first consider the argument of the learned counsel for the respondent that under Article 109 of the Limitation Act, the period of limitation commences from the date of possession obtained by alienee, and therefore, the cause of action for the second suit, in respect of the sale deed dated 21.02.1959, would be different from the earlier suit, as in respect of the sale deed of an earlier date, it would have a different period of limitation. We are of the view that, that the period of limitation under Article 109 is different from the period of limitation in respect of the first sale deed,
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 cannot operate so as to exclude the bar under Order II Rule 2. The principle underlying Order Il Rule 2 is that no man can be vexed twice over the same cause of action. All claims and reliefs, which arise from a cause of action, must be comprehended in one single suit. Order II Rule 2 provides for the principle of repose. If this be the underlying object of Order II Rule 2, the fact that at the time when the first suit was fled even though the second alienation could be challenged and it stemmed from one single cause of action and not two different causes of action, the mere fact that a different period of limitation is provided, cannot stand in the way of the bar under Order II Rule 2."
16. It is also relevant to extract the law declared by the Hon'ble Supreme Court in the case of State Bank of India v. Gracure Pharmaceuticals Ltd. reported in AIR 2014 SC 731 at paragraphs 9 to 12, which reads as under:
9. The scope of the above-mentioned provisions came up for consideration before this Court in several cases. The earliest one dealt by the Privy Council was reported in Naba Kumar Hazra v.
Radhashyam Mahish. AIR 1931 PC 229 wherein the Privy Council held that the plaintiff cannot be
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 permitted to draw the defendant to court twice for the same cause by splitting up the claim and suing, in the first instance, in respect of a part of claim only. In Sidramappa v. Rajashetty and others (1970) 1 SCC 186: (AIR 1970 SC 1059) this Court held that if the cause of action on the basis of which the previous suit was brought, does not form the foundation of subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the latter, namely, the subsequent suit, will not be barred by the rule contained in Order 2, Rule 2, CPC. In Gurbux Singh v. Bhooralal, AlR 1964 SC 1810 the scope of the above-mentioned provision was further explained as under:
"In order that a plea of a Bar under Order 2, Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out;
(i) 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 to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second Suit had been filed. From this analysis it would be seen that the defendant would have to
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 establish 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 latter suit is based there would be no scope for the application of the bar."
10. In Sandeep Polymers (P) Ltd.'s case (AIR 2007 SC 2656 : 2007 AIR SCW 4795) (supra), the above-mentioned principles were reiterated and this Court held as under:
"Under Order 2, Rule I of the Code which contains provisions of mandatory nature, the requirement is that the plaintiffs are duty bound to claim the entire relief. The suit has to be so framed as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 2 further enjoins on the plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of his claim, it is not permissible for him to sue in respect of the portion so omitted or relinquished afterwards.
11. The above-mentioned decisions categorically lay down the law that if a plaintiff is entitled to seek reliefs against the defendant in respect of the same
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 cause of action, the plaintiff cannot split up the claim so as to omit one part to the claim and sue for the other. If the cause of action is same, the plaintiff has to place all his claims before the Court in one suit, as Order 2, Rule 2, CPC is based on the cardinal principle that defendant should not be vexed twice for the same cause.
12. Order 2, Rule 2. CPC, therefore, requires the unity of all claims based on the same cause of action in one suit, it does not contemplate unity of distinct and separate cause of action. On the abovementioned legal principle, let us examine whether the High Court has correctly applied the legal principle in the instant case.
17. Applying the aforementioned principle laid down by the Hon'ble Supreme Court, it may be put it in nutshell that, Order II Rule 2 of CPC manifests a technical rule that, no person shall be vexed twice on the same cause of action.
18. Recently, the Hon'ble Supreme Court in the case of B. Santoshamma and Another v. D. Sarala and Another reported in (2020) 19 SCC 80 has held that,
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 the bar of subsequent suit is a technical plea which has to be pleaded and satisfactorily established by the defendant.
19. Applying the aforementioned principle to the case on hand, the defence taken by the plaintiff against the defendants is that, due to the proceedings in O.S.No.35/1982, certain properties are not included in O.S.No.124/1972. Since the proceedings between the parties is seeking relief of partition and separate possession in respect of the subject matter of the suit, in the event if certain properties have been left out by the plaintiff in the original suit, such left out properties be incorporated in the final decree proceedings, seeking equitable distribution in terms of the provisions contained under Hindu Succession Act.
20. This Court, in the case of Sri Channaveerappa Gowda vs. Sri Renukappa Gowda and Others reported in 2014 (3) KCCR 2214, at paragraphs 7 to 13 held as follows:
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 "7. In a partition suit, first a preliminary decree is passed declaring the rights of the parties in the schedule property. During the course of final decree proceedings, the Court has jurisdiction to alter shares if it is occasioned by the death of one of the sharers. Notwithstanding the declaration of rights in the preliminary decree, there may be more than one preliminary decree. If there is no dispute regarding some-of the joint family properties, or the claim for partition is admitted by the defendants in respect of some of the suit schedule properties, then the Court can proceed under Order XII, Rule 6 of CPC and pass preliminary decree in respect of Such items at once. Thereafter, after contest yet another preliminary decree In respect of the other items of property. Similarly, there can be more than one Final Decree also.
8. This principle is also extended by the Supreme Court to a case where there is change in the law resulting in augmentation of shares.
9. The Apex Court in the case of S. Sai Reddy Vs S. Narayana Reddy [1991 (3) SCC 647] dealing with the change of law after the preliminary decree in passed before passing of the final decree held as under:-
"7. ......... A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 instrument of partition, by oral arrangement by the parties, or by a decree of the Court. When a suit for partition is fled in Court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which clause (i) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women which
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 is a vulnerable section of the society in all its strata, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so, The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits."
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009
10. By virtue of Section 6 of the Hindu Succession (Amendment) Act, 2005, when a daughter is conferred the status of a coparcener, resulting in her being entitled to an equal share with the son in coparcenary property and the said law being made retrospective in operation and making it applicable to pending proceedings at any stage, a preliminary decree passed prior to the commencement of the Amendment Act requires to be varied enlarging the share of the daughter.
11. The Apex Court in the case of Ganduri Koteshwaramma And Another Vs Chakiri Yanadi And Another (2011) 9 SCC 788) has held as under:-
"14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the Court to amend the
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation.
21. It is true that final decree is always required to be in Conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial Court in the event in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree."
12. The Apex Court in the cáse of Prema Vs. Nanje Gowda And Others [(2011) 6 SCC 462] has held as under: -
"16. We may add that by virtue of the preliminary decree passed by the trial Court, which was confirmed by the lower appellate Court and the High Court, the issues decided therein will be deemed to have become final but as suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. If in the interregnum any party to the partition suit dies, then his/her share is required to be allotted to the surviving parties
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the Court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the Court seized with the final decree proceedings is not only entitled but is duty bound to take notice of such change and pass appropriate order.
17. In this case, the Act was amended by the State legislature and Sections 6A to 6C were inserted for achieving the goal of equality set out in the Preamble of the Constitution. In terms of Section 2 of the Karnataka Act No.23 of 1994, Section 6A came into force on 30.7.1994, i.e. the date on which the amendment was published. As on that day, the final decree proceedings were pending. Therefore, the appellant had every right to seek enlargement of her share by pointing out that the discrimination practiced against the unmarried daughter had been removed by the legislative intervention and there is no reason why the Court should hesitate in giving effect to an amendment
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 made by the State legislature in exercise of the power vested in it under Article 15(3) of the Constitution."
13. However, this principle cannot be extended to include a property which was not the subject matter of the suit, at the time of passing of the preliminary decree. Variation of shares already declared in the property which is the subject matter of the suit is totally different from varying the subject matter of the suit. The reason being that what is the share to which a party to a suit is entitled to in law is purely a question of law, whereas a share in a property is dependent on the nature of the property which is purely a question of fact, which is to be decided on the facts and circumstances of the case based on the evidence adduced. Therefore, once a preliminary decree is passed in respect of the subject matter of the suit, question of including or adding a property to the subject matter of the suit subsequently and claiming a share in respect of the property so included or added is not permissible in law. In respect of the said property a separate suit is maintainable, if sufficient cause is shown for its exclusion in the suit for partition. However, on the ground final decree is not yet passed, the said property cannot be included in the suit after
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 passing of preliminary decree or a second preliminary decree cannot be passed nor can it be the subject matter of final decree proceedings. Further, if a property which was not the subject matter of a suit, were to be included at the stage of Final Decree Proceedings, evidence has to be recorded to decide whether it is a Joint Family Property or not and if the parties to the suit have share therein or not. By chance if a property belonging to the Joint family could not be included in the suit, a second suit for partition of the property so left out is not maintainable. But if there are acceptable reasons for not including the property in the suit, a second suit for its partition would still be maintainable. The Court would also have no such power even U/s 153 of CPC to include a property suo motu. A suit ordinarily means a Civil proceeding instituted by presenting a plaint."
21. In that view of the matter, as the plaintiff has stated that certain properties were not included in earlier suit on account of pendency of suit against the Panchayat, where both the plaintiff and defendant No.1 were party to said proceedings, the reason assigned by the plaintiff is valid. Hence, I am of the view that, the Trial Court having
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NC: 2024:KHC-K:590 RSA No. 7100 of 2009 taken note of entire material on record has answered Issue No.4 taking into account the scope and ambit of Order II Rule 2 of CPC in respect of the suit covering the relief of partition and separate possession and the same has been erroneously interfered with by the First Appellate Court. I have also noticed the finding recorded by the First Appellate Court at paragraph 15, wherein the discussion has been made with regard to the distinct properties based on the same cause of action. However, insofar as the suit for partition is concerned, it is the recurring cause of action and it is open for the plaintiff to seek partition by presenting a separate suit claiming relief or adding such left out properties in the FDP proceedings. In that view of the matter, the plaintiff/appellant has made out a case for interference in this appeal and the substantial question of law framed favours the plaintiff/appellant and the First Appellate Court has ignored the scope and ambit of Order II Rule 2 of CPC in respect of the nature of the suit, like partition suit and therefore, I pass the following:
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NC: 2024:KHC-K:590
RSA No. 7100 of 2009
ORDER
i. Appeal is allowed.
ii. The judgment and decree dated 31.07.2008 in
R.A.No.117/2003 on the file of Civil Judge (Sr.Dn.), Basavan Bagewadi is set aside.
iii. Consequently, the judgment and decree dated 13.04.2000 in O.S.No.108/1993 on the file of Civil Judge (Jr.Dn.), Basavan Bagewadi is confirmed.
Sd/-
JUDGE LG List No.: 1 Sl No.: 35