(SUPREME COURT OF INDIA)
Kunjan Nair Sivaraman Nair
Vs
Narayanan Nair and others
HON'BLE JUSTICE DORAISWAMY RAJU AND HON'BLE JUSTICE ARIJIT PASAYAT
06/02/2004
Civil Appeal No. 838 of 2004
JUDGMENT
The Judgment was delivered by
ARIJIT PASAYAT, J.
- Leave granted.
2. 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.
3. 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 developed 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 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 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.
4. Mr. P. Krishnamoorthy, learned senior counsel appearing for the appellant
submitted that the conclusions of the Courts below are erroneous. Clause 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.
5. 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.
6. 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.
7. 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 and 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 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." *
8. A mere look at the provisions show 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 vs. Bhooralal
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 his
analysis it would be seen that the defendant would have to 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 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. Nos. 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." *
9. The above position was again illuminatingly highlighted by this Court in
Bengal Waterproof Limited vs. Bombay Waterproof Manufacturing Company and
another 1).
10. 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.
11. Rule of res judicata is contained in Section 11 of the 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."
*
12. "Res judicata pro veritate accipitur" is the full maxim which
has, over the years, shrunk to mere "res judicata".
13. Section 11 contains the rule of conclusiveness of the judgment, which is
based partly on the maxim of Roman Jurisprudence 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.
14. The above position was noted in Deva Ram and Another vs. Ishwar Chand and
another 0).
15. 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 and claim to bring the suit within the jurisdiction of any
Court, he will not be entitled to that relief in any subsequently suit. Further
sub-rule (3) provides that the person 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.
16. 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'.
17. 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." *
18. As observed by the Privy Council in Payana vs. 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 Mohammed Khalil Khan vs.
Mahbub Ali Mian 1949 AIR(PC) 78)
19. In Inacio Martins (deceased through LRs.) vs. Narayan Hari Naik and others
6), 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. Subsequently 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 in the premise that he had, in fact, open 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.
20. In Deva Ram's case (supra) it was held that where the previous suit was for
recovery 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 argument 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.
21. The Courts below were, therefore, justified in holding 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. #
22. 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) or the Compensation Act read as follows:-
"2(d) "Tenant" - 'tenant' with its grammatical variations and
cognate expressions includes -
(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." *
23. 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 possession or assert
any adverse claim against the lawful owner to any longer squat on the property
- 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 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. #
24. The appeal is partly allowed to the extent indicated and in other respects
shall stand dismissed. Costs made easy.