Back
Rajasthan High Court
Wanchoo, C.J. & Bapna, J.
Inder Nath Modi - Appellant
Versus
Nand Ram - Respondents
D.B. Civil 1st Appeal No. 23 of 1949
Decided On : October 07, 1952
Order 2, rule 2 (3) Civil P.C. is applicable not only in cases where a person is entitled to more than one relief in respect of the same cause of action in the cumulative, but also in cases where he is no entitled to more than one relief in the alternative. (Para 15)
N mortgaged his house with possession to J and executed a rent note. On Ns failure to pay the rent J filed a suit against him and obtained a decree for arrears of rent and ejectment, in execution whereof he got possession of the house. Sometime after, alleging that Mst. Sarupi (Ns mother) had taken forcible possession of the house at the instigation of N, J filed a suit against N, Ns two sons and Mst. Sarupi. This suit was dismissed on the ground of limitation. J transferred his rights under the mortgage to S whose legal representative has filed the suit for possession of the house against N and his sons alleging that these persons have taken wrongful possession of the house after the death of Mst Sarupi. The respondents case is that the cause of action being the same in the two suits, the second suit is barred by the provisions of O. 2, R. 2 Civil P.C.
Held that though the plaintiff right to proceed against the mortgagor and trespasser arose from same set of facts, the two causes of action were different. Against the mortgagors as such the plaintiff got his remedy for recovery of his money by virtue of sec. 68 (c) of the Transfer of Property Act but as against the trespasser and persons claiming through such trespasser the remedy was under the general law whereby a person under a possessory title seeks to enforce his title against a trespasser. In the present suit the plaintiff wanted to enforce his possessory title against persons who have been found to derive their right to possess from a trespasser, although they happen to be the mortgagors. Plaintiffs suit was therefore not barred by the provisions of O. 2, R. 2, Civil P.C.
A rightful person is entitled to possession irrespective of the fact whether the property has changed hands from one trespasser himself to his successor-in- title, provided, the suit is within limitation.
Where the defendant intends to set up invalidity of the mortgage it is not enough for him to raise a vague plea that the mortgage was authenticated. He should point out the defects which make the alienation invalid. (Para 32)
2. One Nandram and his brother Achlu mortgaged two houses mentioned as A and B in the schedule annexed to the plaint, with one Jainarain for a sum of Rs. 3000/- on Baisakh Vadi 7, Svt. 1975 (22nd April 1919) and delivered possession thereof to the mortgagee in pursuance of the mortgage., Nandram took a lease of the house A from the mortgagee on the date of the mortgage and occupied the same as a tenant. On the failure of Nandram to pay rent, Jainarain sued for arrears of rent and ejectment and obtained a decree on the 12th of September 1929 and actual physical possession was delivered to him in execution of the decree on 19th of November 1931. It was alleged that Mst. Sarupi, mother of Nandram, committed trespass over the said house and dispossessed the mortgagee. Thereafter, Jainarain filed a complaint for house-trespass but Mst. Sarupi was acquitted on the ground that her action was in exercise of a bona fide right to be provided with a place for residence. It was alleged that Mst. Sarupi continued to be in possession of the house till her death in July 1942 but thereafter Nandram and his two sons Gauri Shanker and Jagdish got into possession of the property although they had no right to do so and it was the mortgagee Jainarain who was entitled to have possession over the property. Jainarain, however, transferred his rights under the deed of mortgage to Shri Shambhu Nath by a document dated 31st March 1944 and the present suit was instituted by Inder Nath who is the son and legal representative of the said Shri Shambhu Nath. It was alleged that the house B had been sold in connection with the recovery of Government dues outstanding against Nandram and after satisfying the Government debt a sum of Rs. 1,237/8/- was received by Jai Narain on Mah Sudi 6,Smt. 1976 but thereafter nothing was received by him or his successor Shri Shambhu Nath. On 7th June 1944 Shri Shambhu Nath called upon Nandram to deliver possession of the house but the defendant did not comply. The plaintiff claimed possession over house A and Rs. 570/- by way of mesne profits from July 1942 till date of suit at the rate of Rs. 15/- per month and further at the same rate till delivery of the possession. Gauri Shanker and Jagdish, the two sons of Nandram, were also impleaded as defendants. The present suit was filed on 1st of October 1945.
3. Jagdish alone contested the suit and it was pleaded that the house was ancestral property in the hands of Nandram and he had no authority to mortgage the same and the mortgage was invalid. It was also pleaded that Jagdish was in possession of the house from even before the death of Mst. Sarupi and the suit was barred by limitation. A further plea was taken that Jai Narain had filed a suit for recovery of mortgage money on 14th: of January 1944 in the court of District Judge No. 2, Jodhpur, which Was dismissed and as the relief for possession was not claimed in the previous suit, the present suit was barred under the provisions of Order II, rule 2, C.P.C. and on the principle of res judicata.
4. A rejoinder was filed on behalf of the plaintiff in which it was said that the house belonged to Nandram and Achlu and on partition between them it came to the share of Achlu. It was denied that Jagdish or any of the defendants came to be in possession of the property before the death of Mst. Sarupi and it was reiterated that the defendants had taken possession of the property as trespassers after the death of Sarupi. The plaintiff averred that the present suit was neither barred under O. 2, R. 2 of the Code nor on the principle of res judicata and further that it was within limitation. As to the former suit being dismissed, it was pointed out that it was dismissed solely under the bar of limitation. The allegation as to the invalidity of the mortgage was denied.
5. The trial court framed eleven issues. The first two put the plaintiff to the proof of
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
