Judgement

Consolidated Appeal (No. 12 of 1945) resulting from the consolidation of two appeals, appeal No. 5 of 1942 and appeal No. 6 of 1942, from two decrees of the High Court (October 28, 1941), which affirmed two decrees, one of the Court of the Special Judge, First Class, Shahjahanpur, and one of the Court of the Civil Judge, Shahjahanpur, both dated January 14, 1939.

The following facts are taken from the judgment of the Judicial Committee. Appeal No. 6 of 1942 arose out of a suit (suit No. 2 of 1938) instituted (by appellant No. 1 and one Fida Ali Khan, on whose death appellants Nos. 2 to 5 were brought in as his representatives, for the recovery of certain property in the Shahjahanpur District. The respondents Nos. 1 to 4, hereinafter called the Mahbub brothers, and their respective wives respondents Nos. 5 to 8, to whom they had purported to transfer parts of the said property, were the defendants in the said suit. The suit was dismissed by the Civil Judge, Shahjahanpur, and the dismissal was confirmed by the High Court on appeal. Appeal No. 5 of 1942 arose out of an application, dated July 27, 1936, by three of the respondents in the above appeal under s. 4 of the United Provinces Encumbered Estates Act, 1934 (United Provinces Act XXV of 1934). In their statement under s. 8 of the Act they claimed as their own the property claimed by the appellants in appeal No. 6. Appellant No. 1 and Fida Ali Khan filed objections under s. 11 of the Act claiming the property as their own. Whilst those proceedings under the Act were pending they filed suit No. 2 of 1938 above referred to. As that suit was dismissed the Special Judge held in the proceedings under the Encumbered Estates Act that they were not proprietors of the property claimed by them in the said proceedings. An appeal by the appellants to the High Court in those proceedings was dismissed on October 28, 1941, on the ground that their appeal against the decree in suit No. 2 of 1938 had been dismissed.

The decision of the Board in appeal No. 5 of 1942 would depend on its decision in appeal No. 6 of 1942, which was the main appeal before the Board. The only question for decision in the main appeal was whether suit No. 2 of 1938 instituted by appellant No. 1 and Fida Ali Khan, since deceased, was barred by Or. 2, r. 2, of the Code of Civil Procedure, 1908. Both courts in India held that it was barred. If the question was decided in favour of the appellants, the other issues left undecided by the High Court would have to be decided. Order 2, r. 2, was as follows —

" (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.) 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.) 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. 1,200. 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 for 1905 "or 1907."

The following pedigree elucidates the relationship of the parties —

Fazal Ali Khan

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x10080 | Muzaffar Ali Khan Amir Ali Khan

Gauhar Ali | |

Khan |

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Muhammad Amjad Ali Khan |

Gaus Khan | |

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