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CASE NO.: Appeal (civil)  838 of 2004

PETITIONER: Kunjan Nair Sivaraman Nair       

RESPONDENT: Narayanan Nair and Ors.          

DATE OF JUDGMENT: 06/02/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: JUDGMENT

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

ARIJIT PASAYAT, J.

       Leave granted.

       Appellant questions correctness of judgment rendered by  learned Single Judge of the Kerala High Court which  dismissed the Second Appeal filed under Section 100 of the  Code of Civil Procedure, 1908 (in short ’the Code’). The  appellant was defendant no.1 in the suit for recovery of  possession on the strength of title, instituted by 7 persons   as plaintiff seeking recovery of possession.  There were two  defendants originally. As the first defendant died during  the pendency of the first appeal before the Principal Sub  Judge, Kottayam, his legal heirs were impleaded as  respondents 9 to 13.   

       Case of the plaintiffs in nutshell was that the plaint  schedule property originally belonged to their deceased  father Narayanan Nair and his mother Kunjupennamma on the  basis of a partition.  On the death of mother, her right  also devolved on Narayanan Nair who died on August, 1975.   The suit was filed in Munsiff’s Court, Palai on the ground  that the plaintiffs are only legal heirs and hence they had  title over the plaint schedule property.  Defendant no.1  filed an application before the Land Tribunal, Palai to  purchase the jenmam right claiming to be cultivating tenant.   The same was dismissed.  An appeal against the said order  was also dismissed.  The plaintiffs had earlier filed OS  208/77 seeking a decree for declaration of right and title  to the plaint schedule property and their possession.   Though their title was upheld but prayer for injunction was  rejected as possession was not found. Appeal against the  judgment in question did not bring any relief.   Subsequently, the suit to which the present dispute relates  was filed claiming recovery of possession with mesne  profits.  The appellant resisted the suit saying that he was  a co-owner, as Narayanan Nair was his uncle.  Both Narayanan  Nair and his mother were looking after him and after the  partition which took place when he was very young, Narayanan  Nair gave the plaint schedule property to him and since then  he was in possession and in enjoyment of the property.  Though the application before the Land Tribunal and the  appeal were dismissed, the rights obtained from Narayanan  Nair and his mother remained unaffected.  Even if title of  the plaintiffs has been found in the earlier suit that was

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no longer in operation.  It was further stated that his son  is residing in the property by constructing a building and  effecting improvements and, therefore, he is entitled to get  value of the building and the improvements.  Reference was  made to the Kerala Compensation for Tenants Improvements  Act, 1958 (in short ’the Compensation Act’).  It was pointed  out that the suit was barred in terms of Order II Rule 2 of  the Code.  The Trial Court framed 3 issues revolving round  the question regarding applicability of Order II Rule 2 of  the Code, and  entitlement for the improvements claimed to  have been made.  The Courts below had found that the first  suit was one for mere title and injunction, and the cause of  action was not the same as that of the later suit;  therefore, Order II Rule 2 of the Code had no application.   Similarly, it was held that the provisions of Compensation  Act had no application to the facts of the case as there was  no material regarding any improvement.  In any event, the  appellant was not a tenant as defined under the Compensation  Act.

       Mr. P. Krishnamoorthy, learned senior counsel appearing  for the appellant submitted that the conclusions of the  Courts below are erroneous.  Cause of action for both the  suit was identical. In any event, the plaintiffs in the  subsequent suit have claimed reliefs which were sought for  in the earlier suit.  To get the benefit of Section 2(d) of  the Compensation Act the appellant is clearly eligible and,  therefore, the Courts below were not correct in rejecting  the stand.

       In response, Mr. T.L.V. Iyer, learned senior counsel  appearing for the respondents submitted that the High Court  has recorded categorical findings regarding ineligibility of  the appellant to get benefit under the Compensation Act.   Cause of action of the two suits were entirely different.   The first one was for confirmation of possession, and  present is one for recovery of possession.  So, the High  Court was justified in its conclusions about not  applicability of Order II Rule 2 of the Code.

       We shall first deal with the question regarding  applicability of Order II Rule 2 of the Code.  Said  provision lays down the general principle that suit must  include whole claim which the plaintiff is entitled to make  in respect of a cause of action, and if he does not do so  then he is visited with the consequences indicated therein.  It provides that all reliefs arising out of the same cause  of action shall be set out in one and the same suit, and  further prescribes the consequences if the plaintiff omits  to do so.  In other words Order II Rule 2 centers round one  and the same cause of action.

Order II Rule 2 with its sub rules and illustration  reads as follows: "2. Suit to include the whole claim. - (1)  Every suit shall include the whole of the  claim which the plaintiff is entitled to  make in respect of the cause of action; but  a plaintiff may relinquish any portion of  his claim in order to bring the suit within  the jurisdiction of any Court.  (2) Relinquishment of part of claim. - Where  a plaintiff omits to sue in respect of, or  intentionally relinquishes, any portion of  his claim, he shall not afterwards sue in

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respect of the portion so omitted or  relinquished.  (3) Omission to sue for one of several  reliefs. - A person entitled to more than  one relief in respect of the same cause of  action may sue for all or any of such  reliefs; but if he  omits, except with the  leave of the Court, to sue for all such  reliefs, he shall not afterwards sue for any  relief so omitted.  Explanation. - For the purposes of this rule  an obligation and a collateral security for  its performance and successive claims  arising under the same obligation shall be  deemed respectively to constitute but one  cause of action.  Illustration  A lets a house to B at a yearly rent of Rs.  1200. The rent for the whole of the years  1905, 1906 and 1907 is due and unpaid. A  sues B in 1908 only for the rent due for  1906. A shall not afterwards sue B for the  rent due for 1905 or 1907."  

A mere look at the provisions shows that once the  plaintiff comes to a court of law for getting any redress  basing his case on an existing cause of action, he must  include in his suit the whole claim pertaining to that cause  of action. But if he gives up a part of the claim based on  the said cause of action or omits to sue in connection with  the same, then he cannot subsequently resurrect the said  claim based on the same cause of action. So far as sub-rule  (3) is concerned, before the second suit of the plaintiff  can be held to be barred by the same, it must be shown that  the second suit is based on the same cause of action on  which the earlier suit was based and if the cause of action  is the same in both the suits and if in the earlier suit  plaintiff had not sued for any of the reliefs available to  it on the basis of that cause of action, the reliefs which  it had failed to press into service in that suit cannot be  subsequently prayed for except with the leave of the court.  It must, therefore, be shown by the defendants for  supporting their plea of bar of Order II, Rule 2, sub-rule  (3) that the second suit of the plaintiff filed is based on  the same cause of action on which its earlier suit was based  and that because it had not prayed for any relief and it had  not obtained leave of the court in that connection, it  cannot sue for that relief in the present second suit. A  Constitution Bench of this case of Gurbux Singh v. Bhooralal  (1964 (7) SCR 831) in this connection has laid down as  under:  "In order that a plea of a bar Order 2, Rule  2(3), Civil Procedure Code should succeed  the defendant who raises the plea must make  out (1) that the second suit was in respect  of the same cause of action as that on which  the previous suit was based, (2) that in  respect of that cause of action the  plaintiff was entitled to more than one  relief, (3) that being thus entitled more  than one relief the plaintiff, without leave  obtained from the Court, omitted to sue for  the relief which the second suit had been  filed. From this analysis it would be seen  that the defendant would have to establish

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primarily and to start with, the precise  cause of action upon which the previous suit  was filed, for unless there is identity  between the cause of action on which the  earlier suit was filed and that on which the  claim in the later suit is based there would  be no scope for the application of the bar.  No doubt, a relief which is sought in a  plaint could ordinarily be traceable to a  particular cause of action but this might,  by no means, be the universal rule. As the  plea is a technical bar it has to be  established satisfactorily and cannot be  presumed merely on basis of inferential  reasoning. It is for this reason that we  consider that a plea of a bar under Order 2,  Rule 2, Civil Procedure Code can be  established only if the defendant files in  evidence the pleadings in the previous suit  and thereby proves to the Court the identify  of the cause of action in the two suits. It  is common that the pleadings in C.S. No. 28  of 1950 were not filed by the appellant in  the present suit as evidence in support of  his plea under Order 2, Rule 2, Civil  Procedure Code. The learned trial Judge,  however, without these pleadings being on  the record inferred what the cause of action  should have been from the reference to the  previous suit contained in the plaint as a  matter of deduction. At the stage of the  appeal the learned District Judge noticed  this lacuna in the appellant’s case and  pointed out, in our opinion rightly, that  without the plaint in the previous suit  being on the record, a plea of a bar under  Order 2, Rule 2, Civil Procedure Code was  not maintainable."  

The above position was again illuminatingly highlighted  by this Court in Bengal Waterproof Limited v. Bombay  Waterproof Manufacturing Company and Another (1997 (1) SCC  99).

Order II Rule 2, sub-rule (3) requires that the cause  of action in the earlier suit must be the same on which the  subsequent suit is based. Therefore, there must be identical  cause of action in both the suits, to attract the bar of  Order II sub-rule (3). The illustrations given under the  rule clearly brings out this position. Above is the ambit  and scope of the provision as highlighted in Gurbux Singh’s  case (supra) by the Constitution Bench and in Bengal  Waterproof Limited (supra). The salutary principle behind  Order II Rule 2 is that a defendant or defendants should not  be vexed time and again for the same cause by splitting the  claim and the reliefs for being indicated in successive  litigations.  It is, therefore, provided that the plaintiff  must not abandon any part of the claim without the leave of  the Court and must claim the whole relief or entire bundle  of reliefs available to him in respect of that very same  cause of action.  He will thereafter be precluded from so  doing in any subsequent litigation that he may commence if  he has not obtained the prior permission of the Court.

Rule of res judicata is contained in Section 11 of the

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Code. Bereft of all its explanations, namely, Explanations I  to VIII, Section 11 is quoted below :  "11. Res judicata. - No court shall try any  suit or issue in which the matter directly  and substantially in issue has been directly  and substantially in issue in a former suit  between the same parties, or between parties  under whom they or any of them claim,  litigating under the same title, in a court  competent to try such subsequent suit or the  suit in which such issue has been  subsequently raise, and has been heard and  finally decided by such court."  

"Res judicata pro veritate accipitur" is the full maxim  which has, over the years, shrunk to mere "res judicata".  Section 11 contains the rule of conclusiveness of the  judgment which is based partly on the maxim of Roman  Jurisprudence "Interest reipublicae ut sit finis litium" (it  concerns the State that there be an end to law suits) and  partly on the maxim "Nemo debet bis vexari pro una at eadem  causa" (no man should be vexed twice over for the same  cause). The section does not affect the jurisdiction of the  court but operates as a bar to the trial of the suit or  issue, if the matter in the suit was directly and  substantially in issue (and finally decided) in the previous  suit between the same parties litigating under the same  title in a court, competent to try the subsequent suit in  which such issue has been raised.  The above position was noted in Deva Ram and Another v.  Ishwar Chand and Another (1995 (6) SCC 733).

The doctrine of res judicata differs from the principle  underlying Order II Rule 2 in that the former places  emphasis on the plaintiff’s duty to exhaust all available  grounds in support of his claim, while the latter requires  the plaintiff to claim all reliefs emanating from the same  cause of action.  Order II concerns framing of a suit and  requires that the plaintiffs shall include whole of his  claim in the framing of the suit.  Sub-rule (1), inter alia,  provides that every suit shall include the whole of the  claim which the plaintiff is entitled to make in respect of  the very same cause of action.  If he relinquishes any claim  to bring the suit within the jurisdiction of any Court, he  will not be entitled to that relief in any subsequent suit.   Further sub-rule (3) provides that the person entitled to  more than one reliefs in respect of the same cause of action  may sue for all or any of such reliefs; but if he omits,  except with the leave of the Court, to sue for such relief  he shall not be afterwards  be permitted to sue for relief  so omitted.

The expression "cause of action" has acquired a  judicially-settled meaning. In the restricted sense cause of  action means the circumstances forming the infraction of the  right or the immediate occasion for the action. In the wider  sense, it means the necessary conditions for the maintenance  of the suit, including not only the infraction of the right,  but the infraction coupled with the right itself.  Compendiously the expression means every fact which it would  be necessary for the plaintiff to prove, if traversed, in  order to support his right to the judgment of the Court.  Every fact which is necessary to be proved, as distinguished  from every piece of evidence which is necessary to prove  each fact, comprises in "cause of action".

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In Halsbury’s Laws of England (Fourth Edition) it has  been stated as follows:

       "’Cause of action’ has been defined as  meaning simply a factual situation the  existence of which entitles one person to  obtain from the Court a remedy against  another person. The phrase has been held  from earliest time to include every fact  which is material to be proved to entitle  the plaintiff to succeed, and every fact  which a defendant would have a right to  traverse. ’Cause of action’ has also been  taken to mean that particular act on the  part of the defendant which gives the  plaintiff his cause of complaint, or the  subject matter of grievance founding the  action, not merely the technical cause of  action."

       As observed by the Privy Council in Payana v.  Pana Lana (1914) 41 IA 142, the rule is directed to  securing the exhaustion of the relief in respect of a  cause of action and not to the inclusion in one and  the same action or different causes of action, even  though they arise from the same transaction. One great  criterion is, when the question arises as to whether  the cause of action in the subsequent suit is  identical with that in the first suit whether the same  evidence will maintain both actions. (See Mohammad  Khalil Khan v. Mahbub Ali Mian (AIR 1949 P.C. 78)    

In Inacio Martins (deceased through LRs.) v. Narayan  Hari Naik and Ors.  (1993 (3) SCC 123), an almost identical  question arose. In that case, the plaintiff had prayed for  protection of his possession by a prohibitory injunction.   That prayer was refused.  Subsequent suit was for recovery  of possession.  This Court held that in the former suit the  only relief that the Court could have granted was in regard  to the declaration sought for which the Court could not have  granted in view of the provisions of Specific Relief Act.   The cause of action for the first suit was based on the  apprehension about likely forcible dispossession.  The cause  of action of the suit was not on the premise that he had, in  fact, been illegally and forcefully dispossessed and needed  the Courts’ assistance for restoration of possession.  In  that background this Court held that subsequent suit was  based on a distinct cause of action not found in or formed  the subject matter of the former suit. The ratio of the  decision has full application to the facts of the present  case.

In Deva Ram’s case (supra) it was held that where the  previous suit was for recovery for loan which was dismissed  on the ground that the document on the basis of which the  suit was filed was not a sale deed but agreement for sale,  subsequent suit for recovery of possession on the basis of  title was not hit by Order II Rule 2 as the cause of action  in the two suits were not identical or one and the same.  

The Courts below were, therefore, justified in holding

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that Order II Rule 2 of the Code had no application to the  facts of the case.  Consequently, the decree passed in  favour of the plaintiffs for recovery of possession shall  stand affirmed and the appeal to that extent shall stand  dismissed.   

That brings us to the residual question about  eligibility of the appellant to make a claim for  compensation for the alleged improvements made. Section 2(d)  of the Compensation Act reads as follows:-

"2(d): "Tenant" \026 "tenant" with its  grammatical variations and cognate  expressions includes \026

(i) a person who, as lessee, sub-lessee,  mortgagee or sub-mortgagee or in good faith  believing himself to be lessee, sub-lessee,  mortgagee, or sub-mortgagee of land, is in  possession thereof.

(ii)    a person who with the bona fide  intention of attorning and paying a  reasonable rent to the person entitled to  cultivate or let waste-land, but without the  permission of such person, brings such land,  under cultivation and is in occupation  thereof as cultivator; and

(iii) a person who comes into possession of  land belonging to another person and makes  improvements thereon in the bona fide belief  that he is entitled to make such  improvements."  

It is to be noted that the three clauses of Section  2(d) use different expressions to meet different situations  and class of persons. While clause (i) refers to a person  who is a lessee or sub-lessee, or mortgagee or sub-mortgagee  or in "good faith" believing himself to be any one of the  above such persons, clause (ii) deals with a person with  "bona fide intention" by doing any one of the things  enumerated is in occupation as cultivator, and clause (iii)  deals with a person who comes into possession of land  belonging to another and makes improvement thereon in the  "bona fide belief" that he is entitled to make such  improvements.  According to the appellant, both clauses (i)  and (iii) are applicable to him.  Clause (i) deals with the  person who bona fide believes himself to be a lessee in  respect of land in question. The fact that he asserted a  claim for purchase of jenmam rights, irrespective of the  rejection of the claim would go to show that at any rate he  was believing in good faith to be one such person viz.,  lessee. Clause (iii) encompasses a person who come into  possession of land belonging to another person and makes  improvements thereon with the bona fide belief that he is  entitled to make such improvements. The appellant was  claiming himself to have been put in possession as the  nephew of late Narayanan Nair, and as a person in such  possession - claims to have made certain improvements.  Indisputably he was in possession. Though, in view of the  judgments of the Courts below his claim to assert a title in  him has been rejected and his possession cannot be a lawful  possession to deny the right of the real owner to recover

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possession or assert any adverse claim against the lawful  owner to any longer squat on the property \026 his initial  induction or entering into possession cannot be said to be  by way of encroachment. Whether such a person could not  claim to have entertained a bona fide belief that he is  entitled to make such improvements has to be factually  determined with reference to the point of time as to when he  really made such improvements. If the alleged improvements  are found to have been made after the disputes between  parties commenced then only it may not be in bona fide  belief. Improvements made, if any, even thereafter only  cannot fall under clause (iii). The Court dealing with the  matter is required to examine the claim and find out whether  the prescriptions in the different clauses individually or  cumulatively have any application to the claim of the  appellant for improvements alleged to have been made, if so  really made.  The Courts below have noted that the appellant  made a claim that he was a lessee and thereafter made the  improvements.  The Courts below do not appear to have  considered the issues arising at any rate in respect of the  claim for alleged improvements said to have been from  aforesaid angle.  As factual adjudication is necessary as to  whether appellant acted in good faith or with bona fide  belief as envisaged, has to be decided taking into  consideration the materials placed before the Court in that  regard.  It is, therefore, appropriate that the Trial Court  should consider this aspect afresh uninfluenced by any  observation made by it earlier or by the Appellate Courts.  We also do not express any conclusive opinion on the merit  of the claim except indicating the parameters relevant for  such consideration. For that limited purpose, the matter is  remitted to the Trial Court which shall make an endeavour to  adjudicate the matter within six months from the date of  judgment, after allowing the parties to place material in  support of their respective stands.

The appeal is partly allowed to the extent indicated  and in other respects shall stand dismissed. Costs made  easy.                                25881