JUDGMENT

Dalal, J C - One Abdul Ghafur at the time of his death in 1900 owned eight properties. He left as heirs three sons, three daughters and a widow and a sister who claimed that part of the property held by him was hers. The three sons divided the properties and subsequently suits were brought by the other claimants who obtained decrees jointly against the three brothers. There was every reason for confusion of the worst type specially as claims were made in the rotation of sehams according to Muhammadan Law and the shares in the Khewat were shown as divisions of a bigha. The remarkable mathematical calculations displayed by the plaintiff in the statement attached to the plaint indicate the very intricate nature of the puzzle. The three sons were Mohammad Muzammil, Asmat Ullah and Mohammad Ibrahim. In 1916 Mohammad Ibrahim sitting down to calculate his share discovered that the share entered in the khewat in his name was much less than what he was entitled to. He applied to the Revenue Court for correction of the Khewat of the eight properties making Mohammad Muzammil's successors-in-interest parties defendants to his application. A joint application was made by him and by Asmat Ullah. When the complication was so great the Revenue Court wisely directed that each brother should apply separately for every revenue-paying property.

2. This was done and Mohammad Ibrahim's several applications each relating to a separate property were dismissed on 11th August, 1916 on the ground that he should proceed in the Civil Court. On 23rd August, 1916 he brought a civil suit against the successors-in-interest of Mohammad Muzammil with respect to five out of the eight properties and obtained a decree. The present suit instituted on 3rd August, 1920 was for recovery of his deficient share in three of the properties making Asmat Ullah as well as the successors-in interest of Mohammad Muzammil, defendants to the suit. A decree was passed by the Court of first instance of the Subordinate Judge of Rai Bareli whereupon Asmat Ullah appealed to the District Judge by Appeal No. 108 of 1921 and the defendant Abdul Wahab on his own behalf and on behalf of four other defendants by Appeal No. 109 of 1921.

3. The learned District Judge decreed both the appeals on the one point that the suit of the plaintiff was barred by the provisions of Order 2, Rule 2, Civil Procedure Code.

4. The judgment of the lower Appellate Court is very vague and loses in value by want of repetition of the fact of the case in the judgment. I fail to understand how a suit can be barred against Asmat Ullah when he was no party to any previous suit. The learned Judge may have some reason for decreeing Asmat Ullah's appeal but that reason is not to be discovered by the help of provisions of Order 2, Rule 2.

5. Whatever cause of action the plaintiff may have against Asmat Ullah he has never before sued Asmat Ullah on that cause of action. So he had no occasion previously to include his present claim in any previous suit. What the rule says is "Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action" meaning thereby that a subsequent suit for a portion of the claim on the same cause of action will be barred. So, to create the bar, there should be two suits, one a previous suit and the other a subsequent suit. There was no previous suit against Asmat Ullah, which can bar the present suit by reason of the provisions of Order 2, Rule 2.

6. I agree that the suit is barred against the other defendants who, I am assured by the learned Counsel of both parties, are successors-in-interest of Mohammad Muzammil. It is true that the plaintiff bases his cause of action on the rejection of his application separately for every property by the Revenue Court. That, however, is not his real cause of action. He went to seek a remedy to a Court which had no jurisdiction and any order by that Court does not give him a fresh cause of acti