Kerala High Court
Raman Ittiyathi And Ors. vs Pappy Bhaskaran And Ors. on 28 July, 1989
Equivalent citations: AIR1990KER112, AIR 1990 KERALA 112, 1989 (3) CURCC 199 1989 (2) KER LJ 377, 1989 (2) KER LJ 377
JUDGMENT S. Padmanabhan, J.
1. The three points raised in this second appeal by defendants 2 and 3 and the legal representatives of deceased first defendant are whether the decree of the appellate Court is liable to be reversed and the suit dismissed for the reasons that the suit is barred under Order II, Rule 2 of the Civil P.C. and Section 34 of the Specific Relief Act and the title of the plaintiffs is lost by adverse possession and if not whether the appellants are entitled to claim and get value of improvements.
2. The three items in the plaint schedule belonged to deceased Raman Kunhan. Third plaintiff and third defendant are his sisters and defendants 1 and 2 are their brothers. They had also a brother Krishnan who died unmarried and issueless. Plaintiffs 1 and 2 are the children of third plaintiff. On 26-3-1963, Kunhan settled the suit properties in favour of plaintiffs and Krishnan by Ext. Bl reserving life estate with him. Kunhan died on 10-2-1970. Before that, on 3-6-1964, he cancelled Ext. Bl by executing Ext. B2. Then on 4-8-1966, he sold Item No. 1 to one Sankara Pillai under Ext. B3. The assignee in turn sold Item No. 1 to third defendant under Ext. B4 on 22-12-1969.
3. On 8-4-1970, plaintiffs filed O.S. No. 57 of 1970 against the defendants for declaration of title and injunction regarding these three hems. Defendants claimed title and possession in themselves and supported Exts. B2 to B4 on the ground that Ext. Bl is only a will. Trial Court decreed the suit in its entirety. Appellate Court remanded the suit after confirming the decree in respect of declaration of title. In C. M. Appeal, this Court set aside the remand order and disposed of the suit finally by confirming the decree regarding declaration of title and dismissing the suit in other respects on the ground that defendants are in possession. Receiver in possession of the properties was directed to hand over possession and income to the defendants.
4. Present suit is for recovery of possession on the strength of title and for getting the profits collected by the receiver. They also wanted the receiver to hand over possession to them and not to the defendants. Defendants pleaded bar under Order II, Rule 2 of the Civil P.C. and Section 34 of the Specific Relief Act as well as adverse possession. In the alternative, they claimed value of improvements. Trial Court dismissed the suit as against Item No. 1 and decreed it in other respects. Both sides filed appeals. Appellate Court dismissed the appeal filed by the defendants and allowed the other appeal. The suit was thus decreed on the whole. Claim for value of improvements was also refused. Even then, third defendant was given a charge over Item No. J for Rs. 2,000/-.
5. I fail to understand how there can be a bar under Section 34 of the Specific Relief Act so far as the present suit is concerned. The Court is entitled in its discretion to grant a declaratory relief even without the plaintiff asking for any further relief. The bar is only under the proviso to Section 34. That is against granting the declaratory relief when the plaintiff, who is able to seek further relief than a mere declaration of title, omits to do so. The language of the section is very clear that the declaratory relief is purely discretionary. The proviso is also clear. The proviso only enjoins that the result of the plaintiff being able to seek further relief omitting to do so is only that the Court shall not grant the declaratory relief. Here, in the previous suit, the declaration was granted even without a prayer for recovery of possession in spite of the refusal of the prayer for injunction on the ground that the plaintiffs were out of possession. The bar under Section 34, if at all, could have applied only to the suit in which further relief was not claimed and not to a future suit in which it was claimed on the ground that further relief was not claimed in a previous suit.
6. The plea of adverse possession also cannot stand for reasons more than one. The final decision of this Court rendered in the previous suit was on 7-9-1977 and this suit was filed in 1977 itself. Rejecting the plea of adverse possession, the title of the plaintiffs was declared. Ext. Bl was found to be a valid document which created rights in praesenti. Exts. B2 to 4 were held invalid. That decision inter partes is binding on the appellants and it operates as res judicata. Kunhan died only on 10-2-1970 and plaintiffs were entitled to get possession only from that date. Kunhan was competent to convey his life estate which was operative till his death. Possession of anybody against a person can be adverse only from the date on which he is entitled to possession. M. V. S. Manikayala Rao v. M. Narasimhaswami, AIR 1966 SC 470. Reason is that before that he cannot evict the person in possession. A life estate holder is entitled to be in possession till his death and his assignee cannot claim adverse possession till the life estate is determined (Kunju Amma Narayana Menon v. Antony Kunjuvareed, 1972 Ker LT 953 : (AIR 1973 Ker 65) (FB)). Only from the date on which a person could demand possession as of right adverse possession could be claimed against him even if the other ingredients are established. Aditya Kumar Ray v. Dhirendra Nath Mandal, AIR 1950 Cal 92. Plea of adverse possession was rightly disallowed.
7. Bar under Order II, Rule 2, C.P.C. is also an equally untenable contention. Order II, Rule 2 does not require that when a transaction or right gives rise to several causes of action they should all be combined in one suit or that the plaintiff must lay his claim alternatively in the same suit for these different causes of action. The fundamental postulate for the application of the rule is that there must be one and only one cause of action in fact before its several provisions can apply. The cause of action cannot be split up to sue for one part in one suit and another part in another suit. When the cause of action gives rise only to one relief, the entire claim must be included in the suit. If not a subsequent suit for the omitted or relinquished portion is barred for ever, the question of reserving the right with or without permission does not arise in such a case. There may be cases in which the same cause of action may give rise to several reliefs. In such cases also, all these reliefs should be united in the same suit. If not the bar will apply. But in such cases, he can obtain leave of Court and reserve one or more reliefs for a separate suit. The bar will apply in such cases only if the leave of Court is not obtained. Even then the whole claim will have to be included, otherwise the bar will apply. Permission could only be in cases where more than one relief is there under the same cause of action. The object of the rule is to prohibit splitting of claims and splitting of remedies and thereby to avoid multiplicity of suits and the resultant harassment. Mohammed Khalil Khan v. Mahbub Ali Khan, AIR 1949 PC 78.
8. Cause of action means every fact which is material to be proved to entitle the plaintiff to succeed; every fact which a defendant has a right to traverse. It is the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. It means every fact which will be necessary for the plaintiff to prove, if traversed, in support of his right to judgment. In other words, the right and its infringement constitutes cause of action. It is the foundation of the suit and if it enables a man to seek a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. Cause of action is the bundle of facts which the plaintiff must prove in order to succeed in his action. For the purpose of Rule 2 cause of action is the one which gives occasion for and form the foundation of the suit.
9. But as held by a Full Bench in Sardar Balbir Singh v. Atma Ram Srivastva, AIR 1977 All 211, there is a distinction between 'cause of action 'and 'right of action'. They are not synonymous and interchangeable terms. A right of action is a right to enforce presently a cause of action. It is a remedial right affording redress for the infringement of a legal right. Cause of action is the operative facts which gives rise to such right of action. Right of action does not arise until the performance of all conditions precedent to the action, and may be taken away by the statute of limitation, estoppel or other circumstances which do not affect the cause of action. Cause of action should also be distinguished from 'remedy' which is the means or method whereby the cause of action or the corresponding obligation is effectuated and by which a wrong is redressed and relief obtained. One precedes and gives rise to the other or others, but they are separate and distinct from each other and are governed by different rules and principles. Cause of action is the obligation from which springs the 'action' defined as the right to enforce an obligation. A cause of action arises when that which ought to have been done is not done or that which ought not have been done is done. The essential elements of cause of action are thus the existence of a legal right on the plaintiff with a corresponding legal duty on the defendant and a violation or breach of that right or duty with consequential injury or damage to the plaintiff for which he may maintain an action for appropriate reliefs.
10, Another aspect to be looked into is that the bar has to be looked into from the point of view of the plaint claim and not from the point of view of the defence. As observed by the Supreme Court in Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, the defendant who raises the plea must make out (1) that the second suit is in respect of the same cause of action as that on which the previous suit was based, and (2) that being thus entitled to more than one relief the plaintiff, without leave of Court, omitted to sue for the relief for which the second suit was filed. The real test is whether inclusion of the relief in the previous suit was not only possible, but also its inclusion was obligatory and not optional. What Order II, Rule 1 gives is a general rule of guidance without any compelling force and what R, 4 provides is only enabling. The precise cause of action for the previous suit will have to be established by the defendant. Unless there is identity of cause of action in both the suits the bar cannot apply. Even though a relief is ordinarily traceable to a cause of action, it cannot be a universal rule. The plea is a technical bar and it has to be proved satisfactorily and cannot be presumed. For that purpose, the defendant is bound to produce and prove the pleadings in the previous suit. By cause of action in the previous suit is meant the facts which the plaintiff had then alleged to support the right to the relief that he claimed. If the relief claimed in the subsequent suit was not available on the facts alleged to support the right to relief, namely the cause of action, in the previous suit, there is no bar under Order II, Rule 2. In other words, the question is whether the relief in respect of which the was available on the cause of action pleaded in the earlier suit.
11. As held in K. Palaniappa Gounder v. Valliammal, AI R 1 988 Mad 156, the question is whether suit could have been given in the previous suit on the basis of the pleadings made in that plaint and whether he omitted to sue for a particular relief on the cause of action which has been disclosed in the previous suit. As observed in Bominic Ammal v. Muthusamy, 1986 TNLJ 117, quoted in that decision, where in an earlier suit for declaration of title and injunction the finding was that the plaintiff was but of possession and the relief of injunction was refused and declaration alone was given, the subsequent suit for possession on the basis of the declaration given in the previous suit is not barred under Order II, Rule 2. In applying the provisions of Order II, Rule 2, we are concerned mainly with the pleadings in the plaint. The test is whether the relief in respect of which the bar under Order II, Rule 2 is raised could have been asked for in the previous suit. In the earlier suit, the plaintiffs were claiming that they were in possession and the defendants attempted to disturb their possession in March 1970. Even though the title and right to possession derived from Kunhan is the basis in both the suits the immediate cause of action in the previous suit was the alleged attempt made to disturb the possession. That is why injunction was sought. Injunction and recovery of possession are two distinct reliefs arising from the title and right to possession. A plaintiff claiming possession and asking for injunction cannot claim recovery of possession for which he had no cause of action or right of action then. Right to get back possession arises only when the Court found that they are not in possession even if the pleadings in the prior suit is taken as false. Allegations in the previous suit and the subsequent suit and the respective causes of action alleged and not what the Court decided in the earlier suit is the basis of the plea. Cause of action in the earlier suit for injunction was the attempted threat to possession and in the present suit for recovery of possession it is the possession alleged to be taken by the defendants after the death of Kunhan. The allegation in the previous suit that the plaintiffs were in possession may be false. But that is not, the question. The question is whether on the allegation in the plaint in that suit they had a cause of action for claiming the relief of recovery. We are not dealing with a plea of res judicata where the might and ought theory is applicable. Injunction and recovery of possession are two distinct and separate reliefs arising out of two different causes of action even though the basic foundation is title and right to possession.
12. Namdevaru v. H. V. Rama Rao, AIR 1959 Mys 173, was also dealing with an identical situation. In the earlier suit, plaintiff's case was that he was in possession and he sought injunction alleging apprehension to his possession. He was found out of possession and he sued for recovery. It was held that in the earlier suit, as framed, he could not have asked for possession and, therefore, the causes of action are different. In the earlier suit, one of the facts which the plaintiff had to prove was that he was in possession and in the present suit what he has to prove is that he is out of possession. Identity of evidence is one of the tests to be applied in deciding identity of cause of action. In Sidramappa v. Raja-shetty, AIR 1970 SC 1059 also, the Supreme Court said that 'cause of action' means cause of action for which the suit was brought and not the cause of action for which the suit ought to have been brought. Bar under Order II, Rule 2 can apply only if the cause of action on the basis of which the previous suit was brought forms the foundation of the subsequent suit also and the relief could have been claimed on the cause of action alleged in the previous suit. The test is not whether he might and ought to have included that cause of action also if it was also available. That is because Order II does not enjoin different causes of action to be combined even though there is an enabling provision to unite causes of action subject to certain limitations. Cause of action for recovery on the strength of title is different from cause of action for recovery on a contract. Basanna v. Appa Rao, AIR 1959 Mys 227, was also identical as Nanjedevaru's case, AIR 1959 Mys 173, and the same principle was laid down. A prayer for possession was impossible on the cause of action alleged in the previous suit. Innumerable decisions were cited before me, but I do not find it necessary to refer to them for fear of adding volume to this judgment. It will suffice to say that if the contention raised by the appellants is accepted, in order to avoid the bar of Order II, Rule 2 a plaintiff will have to anticipate every defence and possibility of adverse findings and mould reliefs in such a way as to include prospective and mutually exclusive reliefs.
13. But one thing more I wish to add. While relinquishment need be "intentional" that qualification is not there to "omission". The word itself indicates that if the relief comes out of the same cause of action it is immaterial whether the omission was by neglect, oversight, mistake, fraudulent, dishonest or intentional. But as held in Nihal Singh v. Mt. Najuban, AIR 1923 All 230; Yarlagadda Pakeerayya v. Puligadda Surya-narayana, AIR 1927 Mad 791; Thotappalle Sarvabhotla Venkata Chandikamba v. Kunala Indrakanti Veswanadhamayya, AIR 1936 Mad 699; Binya Bai v. Ganpat, AIR . 1918 Nag 158 and other decisions, in order that the bar should apply the plaintiff must have been aware of or conscious about the omitted relief. If the omission was due to lack of knowledge or awareness of the cause of action or the relief, the bar cannot apply. Immediately after Kunhan died, plaintiffs were entitled to possession. There was scramble for possession. Either bona fide or mala fide plaintiffs claimed that they are in possession and sought injunction. On that cause of action, they could not have claimed recovery. Verdict of Court was that legal possession is not with them. That cannot be the basis of denying a legal right. That is not the object of the section. The bar under Order II, Rule 2 is, therefore, not applicable.
14. Now then what remains is only the claim for value of improvements. Under Act 29 of 1958 persons who came into possession of land belonging to another and makes improvements thereon on the bonafide belief that they are entitled to make such improvements also come within the category of tenants entitled to claim value of improvements. Veerasikku Gounder v. Kurian, 19601 Ker LT 213; Moideenkutty v. Subhadra, 1966 Ker LT 1125; Rev. Fr. K. C. Alexander v. State of Kerala, 1965 Ker LT 666: (AIR 1966 Ker 72); Maddanappa v. Chandramma, AIR 1965 SC 1812; Alexander v. State, AIR 1973 SC 2498 and various other decisions considered the claim under this provision as applicable to persons holding under voidable and void documents as well as trespassers. Bona fide belief regarding entitlement to effect improvements is the criterion in all the cases. The man who spends money on improving property knowing fully well that he has no title to it can be permitted to deprive the real owner of his right to possession except on payment for improvements which were not effected with his consent. Good faith is the condition precedent. That depends upon due care and attention whether it be under Act 29 of 1958 or under Section 51 of the Transfer of Property Act.
15. Here the counsel wanted to draw a distinction between Item No. 1 on the one hand and Items Nos. 2 and 3 on the other. I find no acceptable basis. Parties are close relations who knew the ins and outs of all the transactions. Defendants wanted to collude with Kunhan to defeat the plaintiffs knowing fully well that Ext. Bl was an outright transfer. They were fighting a battle against the plaintiffs. They were raising false claims of tenancies also. They filed a joint written statement and on their behalf first defendant alone was examined as DW 1. He admitted that improvements were effected only after suit. The appellate Court found it to be mala fide and I have no reason to disagree. That claim has only to be negatived.
16. In the earlier suit, the receiver was directed to surrender the properties to the defendants and they were allowed to draw the profits only because plaintiffs did not seek and they were not granted recovery. Their title was found. Possession of defendants is wrongful. They are answerable for mesne profits. Plaintiffs are, therefore, entitled to get possession and draw the entire collection by the receiver. Defendants are also answerable for mesne profits from the date they got possession from the receiver at the rate fixed by the Appellate Judge.
17. The decision of the District Judge granting a charge to the third defendant on Item No. 1 for the sale consideration of Rs. 2,000/- invested by her is patently wrong and illegal. But no appeal or even cross-objection was filed. Order XLI, Rule 22 cannot be invoked because it is not a mere finding but a decree. Then the question is whether Rule 33 of Order XLI could be invoked. But Order XLI, Rule 33 is primarily intended to confer power upon the appellate Court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders. Choudhary Sahu v. State of Bihar, AIR 1982 SC98. Though the power is wide, it has to be exercised with discretion, and in cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final, so as to enable the Court to adjust the rights of the parties. The power is not unrestricted to reopen any decree which has become final merely because the appellate Court does not agree with the opinion of the Court appealed from. If the appellate Court reaches a conclusion inconsistent with that of the Court appealed from and in adjusting the right claimed by the appellant, it is found necessary to grant relief to a person who has not appealed, the power may properly be invoked. Nirmala Bala v. Balai Chand, AIR 1965 SC 1874. Normally interference is only when there is an appeal or cross-objection on payment of court-fee. The power of the Court under this rule could be exercised only when the Court feels that an appeal has to succeed on the merits. T. Atchaiah v. Narasinga Rao, AIR 1978 SC 725 and Kali Charan v. Roheswaripriya, AIR 1979 Gauhati 7. The interference on behalf of a party who did not appeal or file cross-objection is only to adjust rights and equities consequent on such interference in favour of the person who appealed. The wide powers to meet the ends of justice dealt with in Mahant Dhangir v. Madan Mohan, AIR 1988 SC 54. Subject only to the restrains that the parties before the lower Court should be there before the appellate Court and the question raised must properly arise out of the judgment of the lower Court must be read subject to the above limitations which were not considered in that case. It is true that Rules 22 and 33 of Order XLI are not mutually exclusive and in cases where Rule 22 is not applicable, Rule 33 could be considered. But unrestricted exercise of the power in favour of a person who slept over his rights is not what is contemplated. If it is otherwise the provisions for appeal and cross-objection will become meaningless. Therefore, interference with that part of the decree is not possible.
18. Subject to what is stated above, the second appeal is dismissed with costs.