Judgment:
Mahesh Grover, J.
1. This Regular Second Appeal is directed against the judgments and decrees dated 10.1.2007 and 18.4.2007 passed respectively by the Additional Civil Judge (Senior Division), Ganaur (hereinafter described as 'the trial Court') and the Additional District Judge, Sonepat (referred to hereinafter as 'the First Appellate Court') whereby the suit and the appeal of the plaintiff-appellant were dismissed.
2. The appellant had filed a suit for redemption against the defendants-respondents. It was pleaded that the father of the appellant was owner in possession of agricultural land, which was described in the plaint; that the said land was mortgaged by him in lieu of mortgage money of Rs. 600/- on 28.6.1944 with Pema son of Kunja, grand-father of respondent Nos. 1 & 2; that mutation No. 1350 was sanctioned in that regard on 10.9.1944; that during the consolidation proceedings, land measuring 21 kanals 12 mar-las had been allotted to the mortgagee in lieu of the land mortgaged which was cultivated by him till 1962; that the father of the appellant had redeemed the land in dispute from the said Pema on payment of mortgage money of Rs. 600/-; that thereafter, the father of the appellant mortgaged with possession the suit land along with his other land situated in the village, total measuring 68 kanals 12 marlas, for an amount of Rs. 14000/- with one Maman son of Ranpat vide registered conditional mortgage deed dated 6.4.1964/25.9.1964 and that father of the appellant could not get the said land redeemed within the stipulated period and the right of redemption was foreclosed.
3. It was the further case of the appellant that he and his brother-Jai Parkash had filed a suit for possession by way of preemption and the said suit was decreed vide judgment dated 9.8.1967 and they had become the owners of land measuring 68 kanals 12 marlas including the land in dispute measuring 21 kanals 12 marlas and the legal representatives of Pema (since deceased) became the mortgagees under them and that the legal representatives of Pema transferred the mortgagee rights qua the suit land in favour of respondent Nos. 1 & 2 through family settlement vide order dated 11.9.1991 which was illegal and not binding on their rights.
4. The appellant had also pleaded that respondent Nos. 1 & 2 had got transferred land measuring 4 kanals 2 marlas out of the suit land in favour of respondent Nos. 3 to 7 through a decree dated 23.3.1994 passed in Civil Suit No. 37 of 1994 which was also illegal and not binding on his rights. He had averred that mortgage created on 28.6.1944 was a usufructuary mortgage and no period was prescribed for its redemption.
5. Upon notice, the respondents appeared and filed their written statement controverting the allegations of the appellant. It was pleaded that the suit was barred by the provisions of Order II Rule 2 of the C.P.C. as well as the principles of res judicata because the appellant had also filed Civil Suit No. 552 of 1984 for possession in respect of the same land against Ran Singh, father of respondent Nos. 1 & 2and Ors. on 15.3.1982, but the same was dismissed vide judgment dated 22.1.1987 which was maintained in appeal as well. It was alleged that the appellant had filed the instant suit by concealment of material facts and it was liable to be dismissed on this ground as well.
6. The parties went to trial on the following issues:
1. Whether the plaintiff is entitled to a decree for redemption of the suit property with its possession as prayed for? OPP
2. Whether the suit of the plaintiff is barred by the principles of res judicata and by provisions of Order II Rule 2 CPC as alleged? OPD
3. Whether the suit of the plaintiff is not maintainable in the present form because the defendants are owners in possession of the suit land as alleged? OPD
4. Whether the suit has been filed by the concealment of material facts and accordingly, it is liable to be dismissed with special costs under Section 35A CPC? OPD
5. Whether the suit is liable to be dismissed under Order VII Rule l(j) CPC? OPD
6. Relief.
7. After appraisal of the entire evidence on record, the trial Court dismissed the suit.
8. In appeal, the findings of the trial Court were affirmed by the First Appellate Court. Apart from the findings which were recorded by the trial Court, the First Appellate Court also held that the suit was barred by the principle of res judicata, as also under the provisions of Order II Rule 2 as well as Section 11 of the CPC, i.e., constructive res judicata.
9. Hence, this Regular Second Appeal.
10. Learned Counsel for the appellant has assailed the findings of the Courts below by contending that the earlier suit was merely for possession, whereas the instant suit was for redemption of the suit land which is totally a distinct relief and, therefore, it could not be held that the provisions of Order II Rule 2 or Section 11 of the CPC were attracted or that the principle of res judicata was applicable. He referred to the prayer made in the earlier suit, which reads as under:
That the plaintiffs pray that a decree for possession of the land comprised in khewat No. 326, khata No. 378, Rect. and Killa No. 19/7 (7-12), 19/8/2(5-11), 19/12/2 (3-17), 19/13/2 (2-11), 19/14/1 (1-18) and 19/15/1 (0-3), measuring 21 kanals 12 marlas situated in village Rajlu Tehsil & District Sonepat be passed in favour of the plaintiffs against the defendants with costs.
He further referred to the prayer made in the instant suit, which is reproduced be-low:
It is, therefore, prayed that a decree for redemption of the agriculture land comprised in khewat No. 341/326, Khata No. 393, Rect. & Killa Nos. 19/7(7-12), 19/8/2(5-11), 19/12/2(3-17), 19/13/2(2-11), 19/14/1(1-18), 19/15/1(0-3), total measuring 21 kanals 12 marlas situated in the revenue estate of Vill. Rajlu Tehsil Ganaur, Distt. Sonepat may kindly be passed on payment of Rs. 600/- as mortgage amount or any other amount as the Hon'ble Court deems fit and proper and the defendants may also be directed to hand over the vacant possession over the suit land to the plaintiff in the interest of justice with costs.
Any other relief as this Hon'ble Court deems fit and proper be also awarded in favour of the plaintiff and against the defendants.
On the basis of the above extracted prayers, learned Counsel for the appellant submitted that since the two prayers were distinct from each other, the findings of the Courts below that the present suit was barred by the principle of res judicata was liable to be set aside.
11. I have thoughtfully considered the contentions/submission of the learned Counsel for the appellant and have gone through the impugned judgments.
12. The copy of the plaint filed in the previous suit has been perused by this Court which reveals that in the pleadings, the appellant and his brother had set up the following case in paragraphs 1 & 2:
1. That the agricultural land measuring 68 kanals 12 marlas comprising in Khewat No. 146, 183, 43, 242, 314, 315, 316, 335, 336, 337, Khata 173, 214, 48, 284, 367, 368, 369, 389, 390, 391, Rect. And Killa Nos. 20/11/3(1-16), 20/11/2(0-8), 20/11/1(2-8), 20/11/4(2-0), 20/21/2(3-15), 20/21/1(3-16), 19/16/2(4-0), 19/15/2(4-13), 19/7(7-12), 19/8/2(5-11), 19/12/2(3-17), 19/13/2(2-11), 19/14/1(1-18), 19/15/1(0-3), 19/24/2(6/16), 19/16/1(24), 19/16/3(1-16), 19/25(8-0), 22/4/3(5/8) situated in village Rajlu, Teh & Distt. Sonepat was mortgaged with conditional sale by defendant No. 2 to Maman son of Rampat, resident of Rajlu, Tehsil and District Sonepat for a consideration of Rs. 14,000/- (Rupees Fourteen thousand) vide registered mortgage deed dated 6.4.64 registered on 25.9. (sic.25.9.1964) which was not redeemed and right to redeem of defendant No. 2 were foreclosed.
2. That the land detailed in para 1 of the plaint was pre-empted by the plaintiffs vide case No. 499 of 1966 Jai Parkash etc. v. Maman etc. date of decision 9.8.67 and the actual possession was also taken in execution vide Rapat Roznamcha Wakiati No. 159 dated 30.10.67 through Girdawar Halka by Smt. Brahmi mother of the plaintiffs on behalf of the plaintiffs who were minors at the relevant date and the plaintiffs continued to be in possession of the land detailed in para 1 of the plaint through Smt. Brahmi.
13. If the above reproduced pleas of the appellant and his brother are read, it is abundantly clear that although they had stated about the mortgage of the suit land by their father, but they specifically pleaded about the foreclosure of his right to redeem the mortgage and it is on this count, as also on the count that they had become owners by way of pre-emptive right that they claimed ownership and possession of the suit property. In the instant case, again a prayer has been made claiming ownership of the suit property by pleading that the appellant was competent to redeem the mortgage by paying the mortgage amount. Such a plea was available to the appellant when he along with brother filed the previous suit, but no such prayer was raised by him.
14. Order II Rule 2 of the C.P.C. reads as under:
2. Suit to include the whole claim.- (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) Relinquishment of part of claim.- 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) Omission to sue for one of several reliefs.- 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.
15. In view of the above extracted provisions of law, once the appellant did not raise a plea which was available him, the subsequent suit would obviously be hit by the principle of constructive res judicata.
16. Therefore, the dismissal of the suit of the appellant by both the Courts below can hardly be faulted with.
17. The following question of law arises for determination in this appeal:
Whether if a person does not raise a plea which is available to him in one proceedings, is he competent to raise the same in the subsequent suit or in such an eventuality, are the subsequent proceedings hit by the provisions of Order II Rule 2 C.P.C?
18. The aforesaid question of law is answered against the appellant on the basis of the discussion made hereinabove and the appeal is dismissed being without any merit.