Nair Sivaraman Nair Vs. Narayanan Nair & Ors  Insc 79 (6 February 2004)
Raju & Arijit Pasayat
out of SLP (Civil) No. 7653/2002) ARIJIT PASAYAT, J.
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.
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.
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.
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.
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.
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.
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 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.
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.
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
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.
of action of the two suits were entirely different.
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.
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.
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.
II Rule 2 with its sub rules and illustration reads as follows:
Suit to include the whole claim. –
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
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.
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.
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.
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:
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
the second suit was in respect of the same cause of action as that on which the
previous suit was based,
in respect of that cause of action the plaintiff was entitled to more than one
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
this 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.
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).
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.
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 :
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".
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.
above position was noted in Deva Ram and Another v. Ishwar Chand and Another
(1995 (6) SCC 733).
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.
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.
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.
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
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
Laws of England (Fourth Edition) it has been stated as follows:
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
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.
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.
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
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.
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" "tenant"
with its grammatical variations and cognate expressions includes
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.
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
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.
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 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.
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.
appeal is partly allowed to the extent indicated and in other respects shall
stand dismissed. Costs made easy.