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1959 Supreme(Kar) 56
Karnataka High Court
Judges : Ahmed Ali Khan
BHIMANGOUDA - Appellant
Versus
SANGAPPA IRAPPA PATIL - Respondent
Second Appeal 123 Of 1956
Decided On : 08/28/1959
The cause of action cannot be said to be identical in both the suits. Consequently, the suit O. S. No. 323 of 1950 does not come within the purview of O. 2, R. 2, sub-rule (2) of the c. P. C. The plaintiff's suit is decreed to the extent of half portion of the suit property together with the mesne profits thereon. Second Appeal No. (B) 123 of 1956 becomes unmaintainable due to the conclusive findings of fact that the alleged transaction is not a mortgage transaction.
Headnote:
withdrawal - suit - O. S. 190 of 1947, O. S. 147 of 1950, O. S. 323 of 1950 - The court allowed the plaintiff to withdraw the suit O. S. No. 190/47 with liberty to bring a fresh suit in respect of the same cause of action. Plaintiff filed suit No. O. S. 147 of 1950 for accounts under S. 15-D of the Dekkhan Agriculturists Relief Act and O. S. No. 323 of 1950 for setting aside the alienation under the sale deed on the ground of want of legal necessity. The lower appellate Court held that the suit is barred by O. 2 R. 2 of the Civil Procedure Code. The High Court found that the cause of action cannot be said to be identical in both the suits. Consequently, the suit O. S. No. 323 of 1950 does not come within the purview of O. 2, R. 2, sub-rule (2) of the c. P. C. The plaintiff's suit is decreed to the extent of half portion of the suit property together with the mesne profits thereon. Second Appeal No. (B) 123 of 1956 becomes unmaintainable due to the conclusive findings of fact that the alleged transaction is not a mortgage transaction.
Fact of the Case:
The plaintiff filed suit O. S. 190 of 1947 for accounts under S. 15-D of the Dekkhan Agriculturists Relief Act and O. S. No. 323 of 1950 for setting aside the alienation under the sale deed on the ground of want of legal necessity. The lower appellate Court held that the suit is barred by O. 2 R. 2 of the Civil Procedure Code. The High Court found that the cause of action cannot be said to be identical in both the suits. Consequently, the suit O. S. No. 323 of 1950 does not come within the purview of O. 2, R. 2, sub-rule (2) of the c. P. C. The plaintiff's suit is decreed to the extent of half portion of the suit property together with the mesne profits thereon. Second Appeal No. (B) 123 of 1956 becomes unmaintainable due to the conclusive findings of fact that the alleged transaction is not a mortgage transaction.
Finding of the Court:
The court found that the cause of action cannot be said to be identical in both the suits. Consequently, the suit O. S. No. 323 of 1950 does not come within the purview of O. 2, R. 2, sub-rule (2) of the c. P. C. The plaintiff's suit is decreed to the extent of half portion of the suit property together with the mesne profits thereon. Second Appeal No. (B) 123 of 1956 becomes unmaintainable due to the conclusive findings of fact that the alleged transaction is not a mortgage transaction.
Issues: The issues revolved around the withdrawal of the suit O. S. No. 190/47 with liberty to bring a fresh suit, the applicability of O. 2 R. 2 of the Civil Procedure Code, and the maintainability of Second Appeal No. (B) 123 of 1956.
Ratio Decidendi: The court held that the cause of action cannot be said to be identical in both the suits. Consequently, the suit O. S. No. 323 of 1950 does not come within the purview of O. 2, R. 2, sub-rule (2) of the c. P. C. The plaintiff's suit is decreed to the extent of half portion of the suit property together with the mesne profits thereon. Second Appeal No. (B) 123 of 1956 becomes unmaintainable due to the conclusive findings of fact that the alleged transaction is not a mortgage transaction.
Final Decision: The plaintiff's suit is decreed to the extent of half portion of the suit property together with the mesne profits thereon. Second Appeal No. (B) 123 of 1956 becomes unmaintainable due to the conclusive findings of fact that the alleged transaction is not a mortgage transaction.
( 2 ) THE plaintiff in the original suits is the appellant before us in both the second appeals. The facts material for the disposal of these second appeals may be briefly stated as follows: bhimangouda alias Bhimshappa Patil filed a suit bearing No. O. S. 190 of 1947 in the Court of the Civil Judge, Junior Division, Muddebihal against the first defendant Sangappa Irappa Patil and his genitive father Gadigeppa for accounts under S. 15-D of the Dekkhan Agriculturists relief Act claiming himself to be the adoptive son of Bhimshappa Patil. He alleged that his adoptive mother Ningawa alienated the suit properties on 28-1-1934 in favour of the first defendant Sangappa Irappa Patil by executing a sale deed in his favour. But the transaction evidenced by the sale deed was in the nature of a mortgage though it was purported to be a sale. As an alternative relief he claimed than even if the transaction is regarded to be a sale, the alienation being without legal necessity it was not binding on him. It appears from the record that he abandoned his alternative claim in that suit i. e. , to set aside the transaction on the ground that it was not for legal necessity and consequently the issues which were framed with regard to this allegation were struck off by the Court. Subsequently he made an application to the Court for withdrawal of his suit. Eventually on 23-3-1950 the Court allowed his application and passed an order which runs as follows:
"plaintiff wants to withdraw, (See Exhibit 57 ). He is permitted to withdraw his suit with liberty to bring a fresh suit in respect of the same cause of action. Plaintiffs to pay legal cost (1/4) to the defendants in one set only and bear his own. Plaintiff to pay Court fee to Government which he would have paid in case he was not allowed to sue in forma pauperis. Yadi to be sent to the collector along with a copy of this order to recover the Court fees from the plaintiff".
After the withdrawal of the suit O. S. No. 190/47 he filed suit No. O. S. 147 of 1950 in the same court for accounts under S. 15-D of the Dekkhan Agriculturists Relief Act and O. S. No. 323 of 1950 for setting aside the alienation under the sale deed on the ground of want of legal necessity against the 1st defendant Sangappa Irappa Patil, 2nd defendant Appasaheb Gadigeppa Patil, 3rd defendant Bhimawa kom Gadigeppa Patil and 4th defendant Ningawa Kom Bhimangouda Patil in the Court of the Civil Judge, Junior Division Muddebihal.
( 3 ) IN Original suit No. 147 of 1950 the plaintiff alleged that on 4-1-1943 he was adopted by the 4th defendant Ningawa as a son to her and deceased husband Bhimangouda Patil under the registered Adoption Deed dated 5-1-1943. After the death of Bhimangouda Patil the first defendant induced the fourth defendant Ningawa (his adoptive mother) by promising to pay off the debts due by Bhimbandouda Patil, the deceased and that he (first defendant) would reconvey the property to her on repayment of the principal and interest. On his representation, the 4th defendant executed an ostensible sale deed dated 21-8-1943 in his favour. It was contended by the plaintiff that the sale was norimal and the transaction was in fact a mortgage transaction. Therefore, he prayed for relief of accounts under S. 15-D of the Dekkhan agriculturists Relief Act. Defendants Nos. 1 and 2 in their written statements denied the plaintiff's adoption and contended that the transaction evidenced by the sale deed dated 21-8-1943 was an absolute sale and not a mortgage. They also denied that there was an oral agreement to reconvey the prop
