Ramudu S/o Sanna Basappa H/o Gangamma Vs. K. Jayanth Kumar S/o Late Megharaj @ Kushalchand - Court Judgment

SooperKanoon Citationsooperkanoon.com/1232510
CourtKarnataka Dharwad High Court
Decided OnMar-17-2023
Case NumberRFA 100266/2015
JudgeSREENIVAS HARISH KUMAR AND P.N.DESAI
AppellantRamudu S/o Sanna Basappa H/o Gangamma
RespondentK. Jayanth Kumar S/o Late Megharaj @ Kushalchand
Excerpt:
- 1 - rfa no.100266 of 2015 r in the high court of karnataka, dharwad bench dated this the17h day of march, 2023 present the hon'ble mr justice sreenivas harish kumar and the hon'ble mr justice p.n.desai regular first appeal no.100266 of2015between:1. ramudu s/o. sanna basappa h/o. gangamma age:45 years 2. venkatesha s/o. nagappa h/o. hanumakka age:38 years 3. sooranna s/o. siddappa h/o. gangamma age:49 years hanumanthappa s/o. bommaiah, h/o. lakshmakka since deceased by his lrs4 maresha s/o. late hanumanthappa age:40 years 5. anjineya s/o. late hanumanthappa age:37 years - 2 - rfa no.100266 of 2015 6. mahadevi d/o. late hanumanthappa age:46 years aavula ningappa s/o nagappa, h/o gangamma since deceased by his lrs7 gangamma @ sanna gangamma w/o late aavula ningappa (since deceased by her.....
Judgment:

- 1 - RFA No.100266 of 2015 R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE17H DAY OF MARCH, 2023 PRESENT THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR AND THE HON'BLE MR JUSTICE P.N.DESAI REGULAR FIRST APPEAL No.100266 OF2015Between:

1. Ramudu S/o. Sanna Basappa H/o. Gangamma Age:45 years 2. Venkatesha S/o. Nagappa H/o. Hanumakka Age:38 years 3. Sooranna S/o. Siddappa H/o. Gangamma Age:49 years Hanumanthappa S/o. Bommaiah, H/o. Lakshmakka since deceased by his LRS4 Maresha S/o. Late Hanumanthappa Age:40 years 5. Anjineya S/o. Late Hanumanthappa Age:37 years - 2 - RFA No.100266 of 2015 6. Mahadevi D/o. Late Hanumanthappa Age:46 years Aavula Ningappa S/o Nagappa, H/o Gangamma Since deceased by his LRS7 Gangamma @ Sanna Gangamma W/o Late Aavula Ningappa (Since deceased by her LRS) 7(a). Smt. Tippakka, W/o.LIngappa Age:

32. years Occ: House Wife, U.Maran 7(b). S/o. Ningappa, Age:

29. years, Occ: Coolie, Appellant 7(a) and (b) amended vide court order dated 11.04.2016.

8. Nagendra S/o. Hanumanthappa H/o. Shivamma Age:42 years 9. Thimmappa S/o. Mareppa H/o. Saraswathi Age:49 years Appellants No.8 & 9 are deleted as per the court order dated 10.11.2016. Nallayya S/o. Sanna Thimmappa H/o. Bheemakka Since deceased by his LRS - 3 - RFA No.100266 of 2015 10. Thimmappa S/o. Late Nallayya Age:40 years 11. Nagappa S/o. Late Nallayya Age:38 years 12. Seena S/o. Late Nallayya Age:36 years 13. Raja S/o. Late Nallayya Age:34 years 14. Venkatesh S/o. Late Nallayya Age:30 years 15. Bheemakka W/o. Late Nallayya Age:62 years 16. Lakshamana S/o. Late Nallayya Age:28 years 17. Ramudu S/o. Lakshmaiah H/o. Gangamma Age:42 years 18. Nagaraj S/o. Mariyappa Age:44 years 19. Devanna S/o. Honnurappa H/o. Rathnamma Age:47 years - 4 - RFA No.100266 of 2015 20. Durugappa S/o. Ningayya H/o. Siddamma Age:51 years 21. Obanna S/o. Sanna Thimmappa H/o. Hanumakka Age:49 years 22. Hanumantha S/o. Sanna Obayya H/o. Anjinakka Age:41 years Marenna S/o. Mareyya H/o. Rudramma Since deceased by his LRS23 Rudramma W/o. Chowdappa Age:55 years 24. Hanumakka W/o. Venkatesh Age:55 years 25. Hulugappa S/o. Kenchappa H/o. Hampamma Age:55 years Ganganna S/o. Sannappayya H/o. Marekka Since deceased by his LRS26 Smt. Marekka W/o. Late Ganganna Age:66 years - 5 - RFA No.100266 of 2015 27. Smt. Gangamma D/o. Late Ganganna Age:45 years 28. Anjinappa S/o. Late Ganganna Age:41 years 29. Dodda Anjinamma D/o. Late Ganganna Age:38 years 30. Sanna Anjinamma D/o. Late Ganganna Age:36 years 31. Honnur Swamy S/o. Late Ganganna Age:24 years Thippanna S/o. Obayya H/o. Thubudhamma Since deceased by his LRS32 Rudra S/o. Thippanna Age:35 years 33. Honnura S/o. Thippanna Age:30 years 34. Thubudhamma W/o. Thippanna Age:63 years 35. Rathnamma D/o. Thippanna Age:28 years - 6 - RFA No.100266 of 2015 36. Lakshmi D/o. Thippanna Age:38 years 37. Marekka W/o. Lakkappa Age:46 years 38. Thubudhamma W/o Pennayya Age:52 years All are R/o. Ward No.VI, T.S.No.4/1, 3/2, 4/3 A and B, Block No.1, Opp. Nallacheruvu Petrol Bunk And Lorry Terminal, Behind Bandimote Mosque, Bellary-583101 …Appellants (By Sri K.L.Patil, Advocate) And:

1. K.Jayanth Kumar S/o. Late Megharaj @ Kushalchand Age:53 years 2. K.Chethan Kumar S/o. Late Megharaj @ Kushalchand Age:47 years 3. K.Mahendra Kumar S/o. Late Megharaj @ Kushalchand 4. K.Kushalchand S/o. Late Megharaj Age:71 years Respondent 4 deleted as per Court order dated 11.04.2016.-. 7 - RFA No.100266 of 2015 5. Smt. Narangi Bai W/o. Late Kushalchand Age:68 years Occ:Household Respondent 5 is deceased and Respondents No.1 to 3 are treated as her LRS vide court order dated 31.01.2018 All are R/o. Door No.200/1, Ward No.11, Flower Street, Bellary-583101 …Respondents (By Sri M.T.Nanaiah, Senior Advocate for Sri Shivaraj V.Hiremath, Advocate C/R1-R3) This RFA is filed under section 96 of CPC against the judgment and decree dated 15.10.2015, passed in O.S.No.250/2005, on the file of II Additional Senior Civil Judge at Ballari, decreeing the suit filed for partition and injunction. This RFA pertaining to Dharwad Bench having been heard & reserved on 13.01.2023, coming on for pronouncement this day, Sreenivas Harish Kumar J, sitting at Bengaluru Bench through video conferencing, pronounced the following:

JUDGMENT

The judgment and decree dated 15.10.2015 in O.S. 250/2005 on the file of II Additional Senior Civil Judge, Ballari, is assailed in this appeal by defendants No.5, 9, 10, 15, 16, 19, 20, 22, 23, 26, 27, 29, 32 and 33, and the - 8 - RFA No.100266 of 2015 legal representatives of defendants No.11, 13, 18, 28, 30 and 31.

2. Referring to the parties with respect to the ranks in the suit, the pleadings are summarized as below : Plaintiffs 1 to 3 are the sons of plaintiff No.4. The subject matter of the suit is property measuring 3 acres 4 cents in Ward No.VI, T.S.No.4/1, 4/2, 4/3A and 4/3B situated near Bengaluru-Bypass Road, Ballari. This entire property is described in schedule ‘A” to the plaint. Schedule ‘B’ property is a part of schedule ‘A’ property.

3. The original owner of schedule ‘A’ property was Mr. Azeez Sab. After his demise, the property was divided among his three legal representatives namely Mr. S.Wahid, Mr.S.Hameed and Mr. Khadir. Mr.S.Wahid and Mr.S.Hammed sold their shares to Smt.Rama Subbamma under two registered sale deeds dated 26.5.1998 and 4.6.1999. Mr.Khadir sold his share to Smt.P.Shanthi and P.Swapna, the daughters of Mr. P.Narayanappa under two separate registered sale deeds dated 26.5.1998.-. 9 - RFA No.100266 of 2015 Thereafter the plaintiffs purchased the entire ‘A’ schedule property under three registered sale deeds dated 31.5.2000 from Smt. Rama Subbamma, P.Shanthi and P.Swapna for valid consideration. Thus the plaintiffs claim to have become absolute owners of ‘A’ schedule property and possessed it.

4. Some time four years before the suit was filed, the Government undertook the work of widening the tank bund road. By the side of tank bund road there were many hutment dwellers and when the road widening work was taken up, some of them tried to put up huts unauthorizedly on the southern side of schedule ‘A’ property. To prevent 232 hutment dwellers from occupying schedule ‘A’ property, the plaintiffs filed a suit, O.S.618/2001 in the Court of II Additional Civil Judge (Junior Division), Ballari and obtained an order of ad- interim injunction on 17.12.2001. The road widening work went on about a month; majority of the hutment dwellers residing beside the road relocated themselves to a place - 10 - RFA No.100266 of 2015 shown to them by the Government. But the defendants shifted their huts to schedule ‘B’ property, which forms southern portion of schedule ‘A’ property, in the last week of December 2001 when the plaintiffs were out of town. Defendants also tried to obtain power supply to their huts and at that time the plaintiffs filed the suit O.S.100/2002 in the Court of III Additional Civil Judge (Junior Division), Ballari, against KPTCL to restrain the latter from giving power supply to the huts and they obtained a decree also. Gradually the defendants made efforts to extend their huts to the adjacent land in schedule ‘A’ property without the consent of the plaintiffs and at that time the plaintiffs filed the suit O.S.153/2002 in the Court of II Additional Civil Judge (Junior Division), Ballari, to prevent them from altering or extending their huts beyond ‘B’ schedule property. The suit was dismissed on the ground that the plaintiffs ought to have sought the relief of possession and a suit for bare injunction was not maintainable. After dismissal of the suit, the defendants tried to extend their huts on the remaining land of schedule ‘A’ property in - 11 - RFA No.100266 of 2015 spite of resistance from the plaintiffs. Therefore the plaintiffs brought the suit against the defendants claiming reliefs in the following manner : - “a) Directing the defendants to deliver actual, physical vacant and peaceful possession of the suit property to the plaintiffs, in case if the defendants fails to deliver the same may be delivered through the process of the court. b) Directing the defendants to remove or demolish the encroached huts from the suit property by way of mandatory injunction. In case the defendants fails to remove, the same may be removed through the process of the court. c) For grant of permanent injunction restraining the defendants, their men, agents, servants, assignees, relatives and all such other persons having power through them, from altering or repairing or extending their huts from existing place to the open space belongs to the plaintiffs situated on the northern side to the schedule ‘B’ property in the interest of justice.-. 12 - RFA No.100266 of 2015 d) Award costs of the suit and e) Grant such other reliefs which the Hon’ble Court deem fit and proper in the circumstances of the case.

5. Defendants No.5, 9, 10, 11, 13, 18, 19, 20, 22, 26, 27, 28, 29, 30 and 33 filed separate written statements denying the plaint averments and taking up a common specific plea that they had been residing in the suit property for the last several years by putting up huts and nobody objected when they put up the huts. Neither the plaintiffs nor their predecessors in the title objected to their residence. Some of the defendants stated that their parents were residents of nearby villages and they came over to Ballari about 45 or 50 years back in search of livelihood and started living in the suit property by constructing huts. Some other defendants also pleaded that they were born and brought up in that place. They contended that even if the plaintiffs claim to be having any right or title, they lost it as their possession in the suit - 13 - RFA No.100266 of 2015 property was hostile to the interest of the plaintiffs and thereby they perfected their title by adverse possession. They also contended that the suit was not maintainable in view of clear bar contained in Order II Rule 2 CPC.

6. The trial court framed nine issues and one additional issue. The first plaintiff adduced evidence as PW1 from plaintiffs’ side and produced documents as per Exs. P1 to P64. DW1 to DW23 are the witnesses from the defendants’ side and Exs. D1 to D114 are the documents that they got marked. Answering issues No.1, 2, 6, 7 and 8 in affirmative, and issues 3, 4, 5 and the additional issue in negative, the trial court decreed the suit directing the defendants 5, 9, 10, 11(a) to (c), 13(a), 18(a) to (g), 19, 20 (a), (b), 22, 23, 26, 27, 28(a), (b), 29, 30 (a) to (f), 31 (a) to (e), 32 and 33 to remove the huts and hand over vacant possession of plaint schedule ‘B’ property to the plaintiffs within 60 days from the date of judgment.

7. It is to be noted here that we heard arguments for the first time on 5.1.2021 and reserved the appeal for - 14 - RFA No.100266 of 2015 judgment. After going through the evidence, as we felt that a commissioner’s report would help take proper decision, on 12.1.2021 we suo motu appointed a commissioner acting under Order 26 Rule 9 CPC. After the commissioner submitted his report, we again heard arguments of learned counsel for the appellants and the respondents.

8. The main points urged by Sri K.L.Patil, learned counsel for appellants are: - (i) The plaintiffs had earlier filed a suit, O.S.153/2002 for permanent injunction against the same defendants. That suit was dismissed with a finding that the plaintiffs ought to have sought the relief of possession. Thereafter the plaintiffs preferred an appeal which they withdrew. (ii) As a result of withdrawal of the appeal, the decree in O.S.153/2002 became final. And since at the time of withdrawing the appeal, the - 15 - RFA No.100266 of 2015 plaintiffs did not seek leave of the court under Order 23 Rule 3 CPC, they could not have filed the present suit based on the same cause of action. (iii) When the plaintiffs filed the suit O.S.153/2002, they were not in possession of plaint ‘B’ schedule property. The huts belonging to the defendants were very much in existence, and in fact the fore fathers of some of the defendants started living in that area quite a long time ago by putting up huts. By the time the plaintiffs purchased ‘A’ schedule property, the defendants were in possession. When the plaintiffs filed the suit O.S.153/2002, they should have claimed the relief of possession. They omitted to claim that relief, and they did not seek leave of the court to file a suit for possession subsequently. Therefore the present suit is hit by Order II Rule 2 CPC.-. 16 - RFA No.100266 of 2015 (iv) The commissioner’s report also clearly shows a number of huts and structures being present in schedule ‘B’ property. In fact in the schedule of the sale deeds produced by the plaintiffs, the existence of huts in the slum area is clearly mentioned. (v) The trial court failed to notice that the suit is not maintainable in view of bar under Order II Rule 2(3) CPC, its finding on additional issue is incorrect and therefore the appeal deserves to be allowed and the suit, dismissed.

9. Sri M.T.Nanaiah, learned senior counsel who argued on behalf of Sri. V Shivaraj Hiremath for the respondents argued the following points : - (i) In the schedule of the sale deeds what is written is that the properties are surrounded by huts, that means the huts were not inside the - 17 - RFA No.100266 of 2015 plaint schedule property and they were situated outside the schedule property. (ii) The earlier suit, O.S.153/2002 was a simple suit for injunction and it was filed for a limited purpose. Its dismissal has no effect on the present suit. The causes of action in both suits are different. In that view it was necessary for the plaintiffs to have obtained leave under Order 23 Rule 3 CPC for instituting another suit. And for the same reason Order 22 Rule 2(3) CPC is also not applicable. (iii) The trial court has negatived the issue on adverse possession and for this reason the defendants are bound to deliver vacant possession of schedule ‘B’ property to the plaintiffs who are true owners.

10. Since the learned counsel confined their arguments on the findings of the trial court on additional issue, the point that arises for discussion is, - 18 - RFA No.100266 of 2015 “Has the trial court correctly held that the suit is not hit by Order II Rule 2 CPC?.

11. Before answering the point, the findings recorded by the trial court on the additional issue may be referred to here. The findings are that the defendants should establish with cogent evidence that the cause of action in the previous suit and the present suit are identical, that the plaintiffs omitted to claim a relief in the former suit, and that for deciding the issue with regard to applicability of Order II Rule 2 CPC, the defendants have to produce the pleadings of the earlier suit. Having opined so, the trial court referred to Exs. D6, D7, D8, D9 and D24 and some decided cases cited before it, and held that the date of dismissal of the suit O.S.153/2002 was the cause of action for the present suit and therefore causes of action are not same to say that the suit is hit by Order II Rule 2 CPC.-. 19 - RFA No.100266 of 2015 12. The documentary evidence brought on record shows that the plaintiffs purchased ‘A’ schedule property on 31.5.2000 which transaction is evidenced by Exs.P2, P10 and P18, the sale deeds executed by their vendors namely Smt. Rama Subbamma, Smt. P.Shanti and Smt. P.Swapna. Exs.P1 and P9 are the sale deeds under which Smt. Rama Subbamma purchased the property and Exs.P16 and P17 are the sale deeds under which Smt.P.Shanti and P.Swapna purchased the property from erstwhile owners. The plaintiffs have produced many other documents which indicate the plaintiffs having obtained revenue katha to their names, and payment of tax by them. Of course these documents were produced by them to prove and assert their ownership over ‘A’ schedule property. The oral evidence of PW1 is to the same effect.

13. The defendants too produced umpteen documents to prove their possession over ‘B’ schedule property for quite a long time. In fact some documents - 20 - RFA No.100266 of 2015 show that the defendants were in possession of ‘B’ schedule property even before the plaintiffs purchased. Suffice it to say that this is the inference that can be drawn about defendants’ possession. The plaintiffs’ assertion in the plaint that the defendants’ occupied schedule ‘B’ property at the time of road widening work lacks evidence. The interference as to factual position is that the defendants were in possession of ‘B’ schedule property even before the plaintiffs purchased schedule ‘A’ property. However, the plea of adverse possession taken by the defendants does not stand. The trial court has answered issue No.3 in negative, and in fact in O.S.153/2002, an issue regarding adverse possession had been framed and answered in negative. In the appeal filed by the plaintiffs questioning the judgment in O.S.153/2002, the defendants had a chance to question the finding on the issue regarding adverse possession, but the plaintiffs withdrew their appeal and therefore the findings on all the issues in O.S.153/2002 attained finality.-. 21 - RFA No.100266 of 2015 14. Now the question regarding applicability of Order II Rule 2 CPC is to be examined. Before that, some decisions which the counsel for parties have relied on may be referred here. Sri K.L.Patil has relied on three decisions on this point. In Mohammad Khalil Khan and Others vs Mahbub Ali Mian and Others [AIR (36) 1949 PC78, it is held, “61. The principles laid down in the cases thus far discussed may be thus summarised : (1) The correct test in cases falling under Order II, Rule 2, is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit."

(Moonshee Buzloor Ruheem v. Shumsunnissa Begum, supra.) (2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. (Read v. Brown, supra.) (3) If the evidence to support the two claims is different, then the causes of action are also different. (Brunsden v. Humphrey, supra.) - 22 - RFA No.100266 of 2015 (4) The causes of action in the two suits may be considered to be the same if in substance they are identical. (Brunsden v. Humphrey, supra.) (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers … to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. (Muss. Chandkour v. Partab Singh, supra). This observation was made by Lord Watson in a case under Section 43 of the Act of 1882 (corresponding to Order II, Rule 2), where plaintiff made various claims in the same suit.

15. The Hon’ble Supreme Court in the case of Gurbux Singh vs Bhooralal [AIR1964SC1810, has held, “6. In order that a plea of a bar under 0.

2. r. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to - 23 - RFA No.100266 of 2015 more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under 0.

2. r. 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits……….” - 24 - RFA No.100266 of 2015 16. In N.V.Srinivasa Murthy and Others vs V.Mariyamma (Dead) by proposed L.Rs and Others [AIR2005SC2897 also, comparing the pleadings in the suits, the Hon’ble Supreme Court has observed as below : “12. The averments in paragraph 12 of the plaint concerning the mutation proceedings before the revenue authorities did not furnish any fresh cause of action for the suit and they appear to have been made as a camouflage to get over the bar of limitation. The dispute of mutation in the revenue court between the parties arose only on the basis of registered sale deed dated 5.5.1953. The orders passed by Tehsildar/Assistant Commissioner did not furnish any independent or fresh cause of action to seek declaration of the sale deed of 5.5.53 to be merely a loan transaction. The foundation of suit does not seem to be the adverse orders passed by revenue courts or authorities in mutation proceedings. The foundation of suit is clearly the registered sale deed of 1953 which is alleged to be a loan transaction and the alleged oral agreement of - 25 - RFA No.100266 of 2015 re-conveyance of the property on return of borrowed amount.

13. In paragraph 11 of the plaint, the plaintiffs have stated that they had earlier instituted original suit No.557 of 1990 seeking permanent injunction against defendants and the said suit was pending when the present suit was filed. Whatever relief the petitioners desired to claim from the civil court on the basis of averment with regard to the registered sale deed of 1953 could and ought to have been claimed in original civil suit No.557 of 1990 which was pending at that time. The second suit claiming indirectly relief of declaration and injunction is apparently barred by Order 2, Rule 2 of the Code of Civil Procedure.” (emphasis supplied) 17. Though Sri M.T.Nanaiah has placed reliance on many decisions, we refer here only such of those decisions as they pertain to applicability of Order II Rule 2 CPC. In Pramod Kumar and Another vs Zalak Singh and Others [(2019) 6 SCC621, it is held, - 26 - RFA No.100266 of 2015 “27. Thus, in respect of omission to include a part of the claim or relinquishing a part of the claim flowing from a cause of action, the result is that the plaintiff is totally barred from instituting a suit later in respect of the claim so omitted or relinquished. However, if different reliefs could be sought for in one suit arising out of a cause of action, if leave is obtained from the Court, then a second suit, for a different relief than one claimed in the earlier suit, can be prayed for. There are three expressions which are found in Order II Rule 2. Firstly, there is reference to the word "cause of action", secondly the word "claim is alluded to" and finally reference is made to "relief".

28. The defence, which is set up by the defendants, would be irrelevant to determine what cause of action means. The reliefs, which are sought by the plaintiffs, will not be determinative of what constitutes cause of action. Cause of action, as explained by the Privy Council in Mohammad Khalil Khan case (supra), means the Media through which the plaintiff seeks to persuade the Court to grant him relief. It could, therefore, be said to be the - 27 - RFA No.100266 of 2015 factual and legal basis or premise upon which the Court is invited by the plaintiff to decide the case in his favour. It is also clear that the cause of action, in both the suits, must be identical. In order that it be identical, what matters, is the substance of the matter.

18. Sri M.T.Nanaiah has also placed reliance on Gurbux Singh. The other two decisions referred to by him are Sidramappa vs Rajashetty [Laws (SC)-1969-12- 13]. and Narashalli Kempanna vs Narasappa [LAWS (Kar)-1987-3-29].. In Narashalli Kempanna’s case, it is held, “6. ……... Though the plea relating to O. II,R. 2,C.P.C. was raised by way of amendment and an-'additional issue No.7 was raised in this regard, but the defendants did not produce the pleadings of the previous suits. In order to establish that the suit is barred by O. II,R. 2, C.P.C. the pleadings of the previous suit are necessary. The defendants 2 to 5 ought to have produced the pleadings of the previous suit. The principle embodied in O. II, R. 2,C.P.C. is that every suit shall include whole of the claim - 28 - RFA No.100266 of 2015 which the plaintiff is entitled to make in respect of the cause of action. But the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. If the plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not be entitled to sue afterwards in respect of the portion so omitted or relinquished. It also further provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of the reliefs, but if he omits to sue for all such reliefs without obtaining leave of the Court for the same, he is precluded from suing for any such relief/s omitted without the leave of the Court. Thus the very basis for attracting the bar contained in O. II, R. 2, C. P.C. is the identity of the causes of action. If, on the basis of the cause of action pleaded in the previous suit, the plaintiff was entitled to the relief claimed in the subsequent suit and he had not obtained the leave of the Court for omitting to claim that relief in the previous suit, he is precluded to claim that relief on the very same-cause of action in the subsequent suit. The cause of action referred to in - 29 - RFA No.100266 of 2015 O.II,R.2,C.P.C.is the one pleaded by the plaintiff in the previous suit and not the one which the Court can infer on reading the other evidence on record other than the plaint in the previous. Therefore, it is necessary to produce the pleadings of the previous suit to prove the identity of cause of action pleaded, in the previous and the present suit.

19. The above decisions make it amply clear that there must be two suits, that if bar under Order II Rule 2 CPC is pleaded in the second suit, the court must examine that plea with reference to the pleadings in both the suits to find out whether causes of action are identical, and whether the plaintiff could have claimed in the first suit the relief which he claimed in the second suit and he omitted to sue for that relief or intentionally relinquished any portion of claim. If cause of action pleaded in the second suit is found to be identical with cause of action pleaded in the first suit, and if leave of the court had not been obtained in the first suit to claim in the second or - 30 - RFA No.100266 of 2015 subsequent suit a relief which had been omitted in the first suit, Order II Rule 2 CPC operates.

20. Now in the case on hand, the certified copies of plaint, written statements, the depositions and judgment in O.S.153/2002 were produced by the defendants and they were marked Exs.D7, D8, D9 and D24 respectively. The relief claimed in O.S.153/2002 is extracted below : “(a) For grant of permanent injunction restraining the defendants, their men, agents, servants, assignees, relatives and all such other persons having power through them, from altering or extending their huts from existing place to the open space which belongs to the plaintiffs or obstructing the construction of the compound wall by the defendants who are unauthorisedly put up their huts in the suit schedule property, in the interest of justice.” (underlining by me) 21. The relief No.(c) claimed in the present suit is same as the relief claimed in O.S.153/2002. Then para 7 of the plaint in O.S.153/2002 is also necessary to be - 31 - RFA No.100266 of 2015 extracted here as it indicates the cause of action for that suit. Para 7 states as follows : “7. The defendants high handedly illegally put up their huts unauthorisedly on the southern side to the suit schedule property about 2 years back. The plaintiffs are also taking necessary steps for vacating them as provided under the law. It is reliably learnt that the said hutment dwellers who are unauthorisedly put up their huts in the suit schedule property are making frantic efforts to alter or extend their huts further without consent of the plaintiffs. As a matter of fact the defendants high handedly tried to alter or extend their existing huts on 29.04.2002 and the same is resisted by the plaintiffs. The defendants also threatened the plaintiffs with dire consequences and also threatened the watchmen of the plaintiffs.

22. In paras 5 and 10 of the plaint of the present suit, the plaintiffs have stated as below : - 32 - RFA No.100266 of 2015 “5. From the date of purchase the plaintiffs are in peaceful possession and enjoyment of the same. After purchasing the suit properties the same was mutated in the names of the plaintiffs in the survey and municipal records. The plaintiffs are also paying the municipal taxes to the municipality in respect to the suit schedule property from the date of their purchase. The plaintiffs are herewith producing the sale deeds, survey records and municipal records for kind perusal of the honorable court.

10. It is reliably learnt that the said hutment dwellers who are unauthorisedly put up their huts in the suit schedule property are making frantic efforts to alter or extend their huts to the adjacent remaining property situate on the northern side to the suit property which is shown in Schedule ‘A’ property without consent of the plaintiffs. In fact the plaintiffs have filed a suit in O.S.No.153/2002 on the file of the II Additional Civil Judge Bellary for permanent injunction restraining the defendants from altering or extending their huts to the adjacent remaining property situate - 33 - RFA No.100266 of 2015 on the northern side to the suit property. The said suit was dismissed on flimsy ground that without seeking possession bare suit for injunction is not maintainable and the plaintiffs have already filed an appeal against the said impugned decree and judgment.

23. Based on evidence, on issue No.3 in O.S.No.153/2002, the court held as below, “13. Section 41(h) of Specific Relief Act 1963 provides that an injunction cannot be granted when equal efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. In this suit the plaintiffs are claiming relief by virtue of registered sale deeds by alleging that, the defendants have illegally, high handedly erected huts towards the southern portion of their purchased property. By this admission, it is clear that, they are not in possession of the property and the defendants are in possession of the same. When the plaintiffs are not in possession of the property, then alternative efficacious remedy available to them is to seek the relief of possession. The plaintiffs have also - 34 - RFA No.100266 of 2015 pleaded that they will take necessary steps against the defendants, but till today they have not initiated any such steps against the defendants. When the plaintiffs are having alternative efficacious remedy of recovery of the possession, then without seeking such relief, they are not entitled for a relief of bare injunction. The plaintiffs can claim the relief of injunction in a suit filed for recovery of possession and even though they are having the knowledge that they are not in the possession of the property, but they have not claimed the recovery of the property till today. Under these circumstances, I come to the conclusion that the defendants have proved this issue and hence I answer Issue No.3 in affirmative.” (underlining by me) 24. Therefore on comparison of the plaints in both the suits and the findings of the court which decided the suit O.S.No.153/2002, it becomes clear that on the day O.S.153/2002 was filed, the plaintiffs were not in possession of schedule ‘B’ property. Cause of action for - 35 - RFA No.100266 of 2015 filing that suit was the attempt made by the defendants to alter or extend their huts which were in existence on the southern side of the suit property i.e., entire 3 acres 4 cents of land which is same as property described in schedule ‘A’ of the present suit. Property described in schedule ‘B’ of the present suit is the southern portion of schedule ‘A’. That means, even according to plaintiffs, as they stated in the plaint in O.S.No.153/2002, the huts were already there. The sketch drawn by the commissioner appointed by us also show very clearly that many huts and like structures are in existence in the southern portion of schedule ‘A’ property. The sketch drawn by the commissioner is not disputed by either side. So, if the plaintiff did not think of claiming the relief of possession when they filed O.S.153/2002, it can only be said that they omitted to claim that relief. Cause of action for the suit O.S.153/2002 and the present are same. Cause of action must be deciphered from the material facts pleaded; events that culminated into driving the plaintiff to approach the court for relief or reliefs constitute - 36 - RFA No.100266 of 2015 cause of action. But the trial court has simply held that the date of dismissal of the suit O.S.No.153/2002 is the cause of action for the present suit, which finding is highly erroneous. The date of dismissal of the suit can never be considered as cause of action. Therefore analysis of facts shows that the causes of action for both suits are identical. Except stating that necessary steps would be taken for vacating them, the plaintiffs did not make an application under Order II Rule 2(3) CPC in O.S.No.153/2002 seeking leave to file a suit for possession at a later date. This assertion in the plaint shows that they were aware that they should claim possession, but they omitted doing so.

25. The very nature of injunctory relief claimed in O.S.No.153/2002 shows that the plaintiffs did not want the defendants extending their occupation beyond the place where the huts were in existence, that means they had no objection if the defendants remained there. If they acquiesced in the defendants’ possession and waived their right to take possession, it was nothing but intentional - 37 - RFA No.100266 of 2015 relinquishment. For all these reasons Order II Rule 2 CPC comes into play, and thus the present suit is hit by Order II Rule 2 CPC.

26. It is curious that in the present suit, relief at Sl.No.(c) is inconsistent with relief (a). If they wanted possession, it is not understandable as to why they claimed injunctory relief which is same as the relief in O.S.No.153/2002. For all the above reasons, we now arrive at a conclusion that the appeal deserves to be allowed. Hence appeal is allowed with costs. Judgment in O.S.No.250/2005 is set aside. Suit is dismissed. SD JUDGE SD JUDGE CKL List No.:

19. Sl No.: 1