Judgement

AYYANGAR, J.: The facts giving rise to this appeal, by special leave, are briefly as follows: The respondent-Bhooralal-brought a suit-Civil Suit 20 of 1954- in the Court of the Subordinate Judge, First Class, Kekri against the appellant claiming possession of certain property which was described in the plaint and for mesne profits. The allegation in the plaint was that the plaintiff was the absolute owner of the said property of which the defendant was in wrongful possession and that in spite of demands he had failed to vacate the same and was therefore liable to pay the mesne profits claimed. In the plaint he made reference to a previous suit that had been filed by him and his mother (C. C. 28 of 1950) wherein a claim had been made against the defendant for the recovery of the mesne profits in regard to the same property for the period ending with February 10, 1950. It was also stated that mesne profits had been decreed in the said suit. In the Written Statement that was filed by the present appellant, besides disputing the claim of the plaintiff to the reliefs prayed for on the merits, a technical plea to the maintainability of the suit was also raised in these terms:

"That 0. 2 R. 2, civil Procedure code is a bar to the suit. When the suit referred to in paragraph 2 of the plaint was filed the plaintiff had a cause of action for the reliefs also. He having omitted to sue for possession in that suit, is now barred from claiming relief of possession. No second suit for recovery of mesne profits is maintainable in law. Since the plaintiff had lost his remedy for the relief of possession he cannot seek recovery of mesne profits also."

On these pleadings the learned Subordinate Judge framed 5 issues and of these the 4th issue ran:

"Whether O.2.R.2, Civil Procedure Code is a bar?".

Before evidence was led by the parties issue No. 4 was argued before the learned trial Judge as a preliminary issue and the Court recorded a finding that the suit was barred by the provision named and directed the dismissal of the suit.

2. The plaintiff preferred an appeal from this decree to the Additional District Judge and the appellate Court considered this plea as regards the bar under O. 2 R. 2, Civil Procedure Code on two alternative bases. In the first place, the learned District Judge pointed out that the pleadings in the earlier suit - C. S. 28 of 1950 - had not been filed in the case and made part of the record, so that it was not known what the precise allegations of the plaintiff in his previous suit were. For this reason the learned district Judge held that the plea of a bar under 0. 2. R. 2., Civil Procedure code should not have been entertained at all. He also considered the question as to whether, if the plea was available, it could have succeeded. On this he referred to the conflict of judicial opinion on this point and held that if the point did arise for decision he would have decided in favour of the plaintiff and treated the case of action for a suit for mesne profits as different from the case of action for the relief of possession of property from a trespasser. In view, however, of his finding on the first point as to there being no material on the record to justify the plea of a bar under 0. 2 R. 2 Civil Procedure Code the learned District Judge did not rest his decision on his view of the law as regards the construction of 0. 2 R. 2(3). In the circumstances he set aside the dismissal of the suit and remanded it to the trial Court for being decided on the merits in accordance with the law.

3. The defendant- the appellant before us-preferred a second appeal to the High Court of Rajasthan and the learned Single Judge dismissed this appeal. It is from this judgment that the appellants have preferred this appeal after obtaining special leave.

4. As already indicated, there is a conflict of judicial opinion on the question whether a suit for possession of immovable property and a suit for the recovery or mesne profits from the sa