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1942 Supreme(Cal) 129
CALCUTTA HIGH COURT
Pal, J.
Sher Ali Mridha - Appellant
Versus
Torap Ali & Ors. - Respondent
Decided On : 06-02-1942
The main legal point established in the given judgment is the interpretation and application of Order 2, Rule 2, Civil P.C. in determining whether a suit for recovery of possession was barred by the provisions of the rule.
Headnote:
Possession - Suit Barred by Order 2, Rule 2, Civil P.C. - [Possession] - [Order 2, Rule 2, Civil P.C.] - The court discussed the applicability of Order 2, Rule 2, Civil P.C. in a suit for recovery of possession. The main question raised by the defendants was whether the present suit in respect of certain lands was barred by the provisions of Order 2, Rule 2, Civil P.C. The Court of first instance found that the plaintiff was in possession of the other lands when the previous suit was brought and that he was dispossessed from this land subsequent to the decision of that suit. Consequently, it held that the present suit was not barred by principles of Order 2, Rule 2, Civil P.C. However, the Court of appeal below came to the finding that the plaintiff was not in possession of the other lands on the date of the previous suit and that the cause of action in respect of which the present suit was instituted is the same as the one in respect of which the previous suit was instituted. On these findings, it held that the present suit was barred under Order 2, Rule 2, Civil P.C. and consequently, dismissed the plaintiff's claim in respect of lands of schedule 'Ka' of the plaint.
Fact of the Case:
The plaintiff brought a suit for recovery of possession on declaration of title to the suit land. The main dispute was whether the present suit in respect of certain lands was barred by the provisions of Order 2, Rule 2, Civil P.C.
Finding of the Court:
The Court of first instance found that the plaintiff was in possession of the other lands when the previous suit was brought and that he was dispossessed from this land subsequent to the decision of that suit. Consequently, it held that the present suit was not barred by principles of Order 2, Rule 2, Civil P.C. However, the Court of appeal below came to the finding that the plaintiff was not in possession of the other lands on the date of the previous suit and that the cause of action in respect of which the present suit was instituted is the same as the one in respect of which the previous suit was instituted. On these findings, it held that the present suit was barred under Order 2, Rule 2, Civil P.C. and consequently, dismissed the plaintiff's claim in respect of lands of schedule 'Ka' of the plaint.
Issues: The main question raised by the defendants was whether the present suit in respect of certain lands was barred by the provisions of Order 2, Rule 2, Civil P.C.
Ratio Decidendi: The Court of first instance found that the plaintiff was in possession of the other lands when the previous suit was brought and that he was dispossessed from this land subsequent to the decision of that suit. Consequently, it held that the present suit was not barred by principles of Order 2, Rule 2, Civil P.C. However, the Court of appeal below came to the finding that the plaintiff was not in possession of the other lands on the date of the previous suit and that the cause of action in respect of which the present suit was instituted is the same as the one in respect of which the previous suit was instituted. On these findings, it held that the present suit was barred under Order 2, Rule 2, Civil P.C. and consequently, dismissed the plaintiff's claim in respect of lands of schedule 'Ka' of the plaint.
Final Decision: The appeal was allowed, the judgment and decree of the Court of appeal below were set aside, and the case was sent back to that Court for re-hearing of the appeal according to law. Costs of this appeal will abide the result.
JUDGMENT
Pal, J. - This appeal is by the plaintiff and it arises out of a suit for recovery of possession on declaration of the plaintiff's title to the suit land. The land in suit appertains to a raiyati holding belonging to one Meru Shaikh. Meru Shaikh died leaving his widow Moyna alias Nowabjan and two sons Abdul Ali and Akub Ali. In 1916 the two sons of Meru Shaikh mortgaged their 14 annas share in the holding to one Benode Behari Shaha. In 1920, Akub Ali's son Turab Ali who is defendant 1 in the present suit, created a usufructuary mortgage in favour of the present plaintiff in respect of the land of this holding. In 1921, the widow of Meru Shaikh, Moyna alias Nowabjan, who is defendant 6 in the present suit sold her 2 annas share in the holding to Maniruddin and Kalimuddin who on their part sold this interest to the present plaintiff on 31st May 1923. In 1922, the mortgagee of the 14 annas interest instituted a suit for enforcement of the mortgage, obtained a decree in that suit and-in execution of that decree purchased the holding himself in 1923. The present plaintiff as a usufructuary mortgagee thereupon deposited the decretal amount and got the said sale set aside. Thereafter on 5th May 1925, the plaintiff instituted a suit for recovery of the money deposited by him in satisfaction of the mortgage dues and obtained a decree against the sons of Meru Shaikh and ultimately in execution of that decree put their 14 annas interest in the holding to sale and purchased the same himself on 14th June 1928. The plaintiff then took delivery of possession through Court of this 14 annas share on 20th December 1928.
2. Thereafter in 1930, the present plaintiff instituted a suit for recovery of possession of one kani of land of the holding basing his title on his purchase dated 31st May 1923 and auction purchase dated 14th June 1928, alleging that after thus acquiring title, he came in actual possession of the entire holding but was subsequently dispossessed from the one kani of land by the defendants on 20th March 1929. This was Suit No. 130 of 1930, of which the plaint is Ex. 2 (b) and the judgment is Ex. F in the present case. In this suit, it was found that the story of plaintiff's getting into actual possession of the land and of subsequent dispossession on 20th March 1929, was a myth. His claim however was decreed on 16th March 1931, on the strength of his title as aforesaid and he succeeded in obtaining possession of that one kani of land in execution of this decree on 13th April 1932. After this there appear to have been disputes between the present plaintiff and defendant 1 regarding the possession of the land of the holding and ultimately defendant 1 instituted a proceeding u/s 145, Criminal P.C., in July 1936 and this proceeding was decided in his favour on 6th November 1936.
3. The present suit was instituted by the plaintiff on 8th July 1937, on the strength of his title by amicable purchase of 1923 and auction purehase of 1928 and symbolic delivery of possession of 20th December 1928, again alleging that after the delivery of the symbolic possession he came in actual possession of the land of the holding, was dispossessed from only one kani of land of which the possession was recovered by him by his title suit No. 130 of 1930, thereafter continued in peaceful possession of the entire holding for some time after which disturbance was caused by the defendants and the order in the proceeding unifier Section 145, Criminal P.C., threw cloud on his title and compelled him to come to the civil Court. The lands of the previous suit are given in Schedule 'Kha' of the present plaint and the remaining lands are given in Schedule 'Ka.' Both the Courts have found title with the plaintiff and that question is not in dispute in the present appeal. The main question raised by the defendants in the case is that the present suit in respect of the lands given in Schedule 'Ka' of the plaint is barred by the provisions of Order 2, Rule 2, Civ
