1. This is an appeal by defendants 2, 11, 17, 19 to 24, 31, 35, 38, 46 and 104 in O.S. No. 65 of 1952 of the court of the Subordinate Judge of Tellicherry. The suit was for the recovery of possession of the items of property described in the schedule to the plaint on the strength of the plaintiff's title, of Rs. 1,200 as mesne profits for the three years immediately preceding the suit and of future mesne profits at the same rate, i.e., Us. 400 per year.
2. The contentions of the plaintiff are summarised as follows in paragraph 2 of the judgment under appeal :
'The plaint schedule properties belong in jenm to Kizhakkadath Kovilakam. These properties were in the possession of Pakaadavath Chandu on kanom Kuzhikanom right under the Kovilakam as per kanom document dated 5-5-1919. The rights of Chandu were acquired by the plaintiff by assignments dated 3-4-1943 and 23-12-1944 from the heirs of Chandu. The plaintiff obtained a renewal from Kizhakkadath Kovilakam as per document dated 27-4-1943. The plaintiff instituted O. S. 4 of 1945 on the file of this court for a declaration, of his title and for a permanent injunction against defendants 1 to 12 and others when they attempted to trespass upon these properties,
In that suit, this court held that the plaintiff has got title to the plaint schedule properties and issued a permanent injunction against those defendants. At the time of that suit, the properties were in the possession of Kayyanna amson adhikari as Receiver appointed by the Sub-Divisional Magistrate, Kozhikode under Section 146 of the Criminal procedure Code, The Receiver surrendered his possession to the plaintiff after the decree. After the said decree, defendants 1 to 12 trespassed upon the plaint schedule properties and also persuaded the remainmg defendants to trespass upon property. The plaintiff is therefore entitled to recover possession with past profits. The plaintiff estimates the mesne profits at Rs. 400-0-0 per year'.
3. Ext. A-41 dated 5-5-1919 is a copy of ths wiarupat executed by Chandu in favour of the Ko-vilakom. Ext. A-2 is the assignment deed of 3-4-1943. One of the heirs of Chandu was not a party to that document. He assigned his rights to one Mohammed and the document of 23-12-1944 mention-ed by the Judge is Ext. A-11, a deed of surrender executed by the said Mohammad in favour of the plaintiff. The document of 27-4-1943 is Ext. A-6.
4. All the 14 appellants filed written statements contesting the plaintiffs claim. Of these only 4--defendants 2, 11, 24 and 104--were parties to O. S. No. 4 of 1945.
5. Ext. A-39 is the plan prepared by the Commissioner in O. S. No. 4 of 1945 and Ext. A-40 is a copy of his report. Exts. A-41 and A-43 dated 17-3-1948 are copies of the judgment and decree of the trial court in that suit and Ext. A-42 dated 25-9-1950 19 a copy of the judgment in the appeal filed by the plaintiff before the District Judge of North Malabar, A. S. No. 297 of 1948.
6. In Ext. A-41 the Subordinate Judge of Tellicherry held :
'There will be a decree declaring the plaintiff's right to the plots marked an A2, B, B1, B2. A3(a), the portion of C1 to the north of Cherupuzha, plots D1, E2, F, F1 and F2 in the Commissioner's plan, Ext. A-39 and an injunction restraining defendants 1 to 30 from trespassing on these plots'.
and in Ext. A-42 the District Judge said :
'On my finding above, this appeal is allowed in part and the lower court's decree is modified by giving the plaintiff a decree for declaration and injunction with regard to plot A1 as forming part of item 1 in the plaint and tile plot described as 150 acres in extent in the plan lying to the east of plots E2 and B to the south of plots C series and west of plot F2 as part of items 5 in the kanom kuzhi-kanom demise. In other respects the decree of the lower court is confirmed'.
The matter was taken up before the High Court of Madras. Both the second appeal--S. A. No. 1809 of 1951--and the memorandum of objections were dismissed (see Exts. A-53 and A-54).
7. The plaintiff was examined as P.W. 1 and the Commissioner who prepared the plan Ext, A-39 and submitted the report Ext. A-40 as P.W, 3. Defendant 2 was examined as D.W. 3, defendant 11 as D.W. 12, defendant 24 as D.W. 22 and defendant 104 as D.W. 4.
8. The lower court considered the evidence adduced and held ;
'The plaintiff is entitled to a decree for recovery of possession from the defendants who are found in possession of the various plots, except from those defendants who are in possession or Kallar Kuzhi. The suit is decreed for recovery of possession of plots A1, A2, A3(a), B, B1, C1, north of Cheru Puzha, plots D1, E2, F, F1 and 150 acres and F2 excluding Kallar Kuzhi in the plan Exhibit A39'.
It is the correctness of this decision that is challenged before us.
9. The first contention of the appellants is that in view of the decree in O. S. No. 4 of 1945 granting a prohibitory injunction the plaintiff should have invoiced Order 21, Rule 32 (5) of the Code of Civil Procedure, 1908, and that the present suit is hit by Section 47(1) of that Code. Order 21, Rule 32 (5) (omitting the illustration) reads as follows:
'Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.';
and Section 47(1)
'All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit'.
10. In Sachi Prasad v. Amarnalh Roy, ILR 46 Cal 103: (AIR 1919 Cal 674), Richardson, J. said ;
'Clause (1) of Rule 32 clearly applies to injunctions both mandatory and prohibitory. In the present Code the words 'for an injunction' take the place in the old Code of the words 'for the performance or abstension from any other particular act'. I can see no reason why Clause (5) should be limited to mandatory injunctions'.
The other Judge who was a party to the order --Beachcroft, J.--contented himself by saying :
'I express no opinion whether Order XXI. Rule 32(5} applies to prohibitory as well as to mandatory injunctions'.
11. In Hem Chandra v. Narendra Nath, AIR 11934 Cal 402, Mukherji, J. (with whom Chose, J., agreed) said :
'1 am not inclined to agree in the view expressed by Richardson, J., (concurrence in which was withheld by Beachcroft, J.) in ILR 46 Cal 103: (AIR 919 Cal 674), that Clause 5, Order 21, R, 32 applied to prohibitory as well as mandatory injunctions. With all deference to the learned Judge I am of opinion that notwithstanding that the word 'injunction' is used in Clause 5 without any qualification or restriction, that clause cannot be read as embracing prohibitory injunction';
and :
'If a simple prohibitory injunction is disobeyed, a fresh cause of action arises for which adequate remedy, by a mandatory injunction or in some other way has to be sought for in a suit'.
In Angad v. Madho Ram, AIR 1938 All 416, the Court was of the same opinion--'that Clause (5), Rule 32 of Order 21 does not apply to prohibitory injunctions'--and in Toon Lal v. Sonoo Lal, AIR 1938 Pat 522, the Court said :
'The relief to which the party is entitled under C!. (5) is a relief to which he will be entitled only in the case of a mandatory injunction'.
12. In Chinnabba Chetty v. Chengalroya Chetty, AIR ] 950 Mad 237, Panchapakesa Ayyar, J., referred to all the cases mentioned above and said ;
'I have no doubt that Sub-rule (5) by its wording, clearly excludes the possibility of its being applied to prohibitory injunctions. I agree, therefore, with the bench rulings of the Allahabad, Calcutta, and Patna High Courts referred to above and hold that Sub-rule (5) will not apply to this case which is a case of prohibitory injunctions'.
13. To the same effect are the words of Hida-yatulla and Kaushalendra Rao, JJ. in Ajabrao v. Atmaram, AIR 1954 Nag 245 :
'With all due respect, the much dissented dictum of Richardson, J. does not appeal to us. The words of Sub-rule (5) of Rule 32 clearly indicate that they are apposite only to mandatory injunctions and not to prohibitory injunctions'.
14. We are in respectful agreement with this view. The words 'act required to be done' in the sub-rule definitely indicate that it applies only to mandatory injunctions and we must hold that the suit is not hit by the provisions of Section 47(1) of the Code of Civil Procedure, 1908, as contended by the appellants before us.
15. The second contention of the appellants is that the suit is bad for multifariousness. The allegation in the plaint is :
(Passage in Malaya lam omitted}.
It is admitted that these allegations are sufficient to sustain the plaint, The contention is that the lower court had not found a joint trespass by the defendants and the cause of action as against each of them has hence to be considered as distinct and separate.
16. If is settled law that the determination of the question as to whether a suit is open to such an objection depends solely on the allegations made in the plaint. Chitaley states the law as follows : .
'The question of misjoinder of defendants in any particular case must be judged from the fact whether it is alleged in the plaint that there is against the defendants any right to relief arising out of the same act or transaction. Whether that allegation is right or wrong is not a question to be considered; the question is whether upon the facts as alleged in the plaint and having regard to the relief asked for, there is any misjoinder. It does not depend upon the defence set up or on the evidence or on the decree awarded to the plaintiff.' (C. P. C., 6th Edition, Vol. 2, Page 1899.)
17. Under the practice of the old Court of Chancery, a bill of complaint was open to a demurrer for multifariousness- when it attempted to embrace too many objects or causes of suit. The current provision which permits the joinder of defendants is Order 1, Rule 3 of the Code of Civil Procedure, 1908 :
'All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise.'
There is no doubt that this provision applies both to joinder of parties and causes of action (See Govindraja v. Alagappa, ILR 49 Mad 836: (AIR 1926 Mad 911) (FB) and that both the conditions mentioned in the rule must be satisfied in order to justify the joinder provided therein.
18. In Nundoo Kumar Naskar v. Banomali Cayan, ILR 29 Cal 871, the question as to whether the cause of action of a plaintiff suing in ejectment is in any way affected by the title under which the defendants profess to hold possession came up for consideration, The Court said:
'The question is whether the plaintiff, suing as he did on his lease for the recovery of the land thereby demised to him, was wrong in making those persons defendants whom he found in actual possession of the land. It was said that he was wrong on two main grounds'--firstly because the titles under which the respondents professed to hold possession were distinct, and the plaintiff's cause of action against each of them was therefore distinct and secondly, because the plaintiff had failed to establish that the respondents had combined for the purpose of dispossessing him. Neither of these reasons appears to us to be satisfactory.
The cause of action of a plaintiff suing in eject-ment cannot so far as we can perceive, be affected by the title under which the defendant professes to hold possession. It matters not to the plaintiff how the defendant may explain the fact that he is in possession or seek to defend his possession. What concerns the plaintiff is that another is wrongfully in possession of what belongs to him, and that fact I gives him his cause of action. If this is so, where there is but one person in possession, can there be a difference when the land is in the possession of more than one? We think not.
It appears to us, so far as the plaintiffs cause of action is concerned, that it is a matter of indifference to him upon what grounds the different per-eons in possession may seek to justify the wrongful detention of what is his. What he is entitled to claim is the recovery of possession of his land as a whole and not in fragments, and we think that all persons who oppose him in the enforcement of that right, are concerned in his cause of action and ought accordingly to be made parties to a suit in which he seeks to give effect to it.' ILR 29 Cal 871 was followed in Umabai v. Vithal, JLR 33 Bom 293, Laxmi Narayan v. Ramratan, AIR 1924 Nag 55 (dissenting from, Afzal Shah v. Lachmi Narain, ILR 40 All 7: (AIR 19L8 All 425)) and Ranganatham v. Mariappa, AIR 1942 Mad 334.
19. It is true that ILR 29 Cal 871 was based on Section 28 of the Code of 1882, and that this case has to he decided under the provisions of Order 1, Rule 8 of the Code of Civil Procedure, 1908. Tho differences in wording, however, do not make the decision inapplicable. As pointed out by Patanjali Sastri, J., in AIR 1942 Mad 334 :
'It is no doubt true that the decision (ILR 29 Cal 871) was under the old Civil Procedure Code where the test was whether the right to relief arose out of 'the same matter' hut as pointed out by Ramesam J., in ILR 49 Mad 836 at p. 847: (AIR 1926 Mad 911 at p. 915), the object underlying the change in the language of the corresponding provision in the new Code was to widen the scope of the rule permitting joinder. The tendency of the later decisions, both in England and in this country based on more or loss similar provisions is to construe them liberally, and I think it may safely he stated, as a general rule, that where substantial common questions of fact are involved in different claims against different parties, their joinder in one suit will not be regarded as multifarious.'
20. In these circumstances we must repel the contention and hold that the suit is not bad for misjoinder of parties or causes of action.
21. The third contention also is based on the submission that the 'joint' trespass alleged in the plaint has not been found to he true by the trial court. The contention of the appellants is that in the absence of such a finding no relief should have been granted to the plaintiff.
22. They rely on the maxim judicis est judicare secundum allegate ct probata (It is the duty of the Judge to decide in conformity with the pcadings and the proofs) and draw our attention to the following passage in Eshen Chunder Singh v. Shamachuru Bhutto, 1.1 Moo Ind App 7 (PC):
'This case is one of considerable importance, and their Lordships desire to take advantage of it, for the purpose of pointing out the absolute necessity that the determination in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case thereby made.';
and the following passage in Trojan and Co. v. Nagappa Chettiar. AIR 1953 SC 235 :
'It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case. The allegations on which the plaintiff claimed relief in respect of these shares arc clear and emphatic. There was no suggestion made in the plaint or even when its amendment was sought at one stage that the plaintiff in the alternative was entitled to this amount on the ground of failure of consideration. That being so, WG see no valid grounds for entertaining the plaintiff's claim as based on failure of consideration on the case pleaded by him.''
23. The trial court has stated in paragraph 62 of its judgment :
'I hold that the trespass alleged is true and that the plaintiff and his predecessor-in-interest had possession of the properties within 12 years of the suit.'
Even if we assume that there is no finding of a 'joint' trespass or that the evidence on record is not sufficient to find such a trespass, we are not confronted in this case with a different or alternative prayer to the one made in the plaint. The suit is for the recovery of possession on the basis of the plaintiff's title and as already pointed out it is a matter of indifference to him how the defendants came to be in wrongful possession of his property.
24. It follows that the third contention also is without force, and has to be negatived.
25. The fourth and last contention urged before us on behalf of the appellants is that the judgment is based on inadmissible and irrelevant materials and should not hence be sustained. If Ext. A-39, the plan prepared by the Commissioner in O. S. No. 4 of 1945, and the judgments in that suit. Exts. A41 and A42, are admissible in evidence, they will certainly be sufficient to establish the plaintiff's case as far as those defendants who were parties to that suit are concerned, namely, defendants 2, 11, 24 and 104.
26. The plan Ext. A-39 is an integral part of both the trial and appellate judgments in O. S. No. 4 of 1945. Even if it is not, it is quite clear that it is admissible in evidence to render those judgments intelligible (see Dinomoni v. Brojornohini, ILR 29 Cal 187 (PC)). That is the only purpose to which the lower court has used Ext. A-39 and it has to be held that such a user is in accordance with the law.
27. The extent to which judgments not inter partes can be used has been dealt with by us in our judgment in Ahdulla v. Ktmhammad, A.S. No. 209 of 1955 (M): (AIR 1960 Kerala 123). The evidence on record, as far as the appellants who were not parties to O. S. No. 4 of 1945 are concerned, is not sufficient to come to a definite conclusion. The decision as against them has hence to be set aside and the case remanded to_ the trial court for a fresh determination after the issue of a fresh commission and in the light of the evidence already on record and such further evidence as those defendants and the plaintiff may deem fit to adduce in support of their respective contentions. We decide accordingly.
28. The present defendants 2, 11, 24 and 104 were defendants 4, 27, 26 and 5 respectively in O.S. No. 4 of 1945. As far as they are concerned the decision in the prior suit should be considered as conclusive and their present contentions as barred by res judicata under Section 11 of the Code of Civil Procedure, 1908. The current controversy was directly and substantially in issue in the former suit and Section 40 of the Indian Evidence Act, 1872, clearly provides that a previous judgment, order or decree is relevant when it is tendered in evidence in support of a plea of res judicata in civil cases, or of autrefois acquit or autrefois convict in criminal cases.
29. Apart from the contention that the prior judgment does not operate as res judicata as against defendants 2, 11, 24 and 104 the further submission on their behalf was that the plea of res judicata was not specifically before the court below and should not hence be allowed to be agitated before us. This is not correct. In paragraph 44 of the judgment under appeal, for example, it is stated :
'The question whether the plaintiff has title to the properties included in Exhibit A1, had once to bo decided by this court in O.S. 4 of 1945 and since that judgment is binding on the parties to that suit, and also on Kizhakkedath Kovilakam, I shall first consider the finding of this court and the appellate court in that suit, before proceeding into the contentions raised by the defendants who are not parties to that suit';
and in paragraph 45 :
''file properties identified as belonging to the plaintiff and decreed in his favour cannot he questioned by the defendants who are parties to that suit.'
30. As a matter of fact the contention of the) defendants was apparently not that the earlier suit! did not operate as res judicata; but that the plaintiff was bound by the earlier decision and that he should not be allowed to claim anything more than what had been decreed in that suit. This is clear from issue No. 5 :
'Whether the plaintiff is barred from claiming title to entire properly by reason of decision in O.S. 4 of 1945. Sub Court, Tellicherry?'
31. There is some confusion of ideas in paragraph 77 of the judgment under appeal. We entertain no doubt, however, that what the learned Judge meant to say was that the prior judgment did operate as res judicata in respect of defendants 2, 11, 24 and ] 04, and that it did not so operate in respect of the other defendants before him.
32. Quite apart from the plea of res judicata, it cannot be gainsaid that the decision in O. S No., 4 of 1945 casts a heavy burden on the defendants who were parties to that suit to displace the conclusion reached in that case, and that the said burden has not been discharged. It is true that the Indian Evidence Act, 1872, does not draw any distinction between a judgment which is not inter partes and a judgment which is inter partes except where the judgment is clearly res judicata. But as pointed out by Monir,
'Although a finding in a previous suit inter partes does not operate as res judicata it is the paramount duty of the party against whom it is given to displace that finding.' (Principles and Digest of the Law of Evidence, 4th Edn., Vol. I, page 334)
The authority cited for the proposition is Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy, AIR 1922 P.C. 241.
33. Of the 14 appellants, three--defendants E2, 23 and 31--have not claimed value for improvements in the written statements filed by them. Counsel for the plaintiff contended before us that they should not be allowed to agitate the question afresh. We see considerable force in this contention, and are satisfied that it should be upheld.
34. The claim for compensation of the other appellants does arise for consideration. We direct that the same be considered by the court below.
35. Issue No. 6 reads as follows:
'Whether plaintiff is entitled to any and what mesne profit?'
This issue has to be considered and disposed of afresh by the trial court. We direct accordingly.
36. The appeal will stand disposed of as above. The parties will bear their costs in this court. The costs after the remand herein directed will be in the discretion of the court below.