Sir Madhavan Nair.-

This is a consolidated appeal 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 of Judicature at Allahabad dated 28th October, 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 14th January, 1939.

Appeal No. 6 of 1942 arises 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 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 arises out of an application dated 27th July, 1936, by three of the Respondents in the above appeal under section 4 of the United Provinces Encumbered Estates Act, 1934 (United Provinces Act XXV of 1934). In their statement under section 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 section 11 of the Act claiming the property as their own. Whilst these 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 these proceedings was dismissed on 28th October, 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 will depend on its decision in Appeal No. 6 of 1942, which is the main appeal before the Board.

The only question for decision in the main appeal is whether the Suit No. 2 of 1938, instituted by Appellant No. 1 and Fida Ali Khan, since deceased, is barred by Order 2, rule 2,‘of the Code of Civil Procedure, 1908. Both Courts in India held that it was barred. If the question is decided in favour of the Appellants, the other issues left undecided by the High Court will have to be decided.

Order 2, r. 2, is 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 rent due for 1906. A shall not afterwards sue B for the rent for 1905 or 1907,The following pedigree will serve to elucidate the relationship of the parties:-

Rani Barkatunnissa in the above pedigree, a Mohammedan lady of the Sunni sect, died on 13th April, 1927, leaving the land concerned in the appeal situate in the District of Shahjahanpur in the Province of Agra, and also land and

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