MUHAMMAD YATEEM Versus GHULAM NABI

1. A suit was filed by Muhammad Yateem for possession through pre-emption of the property in dispute. In this suit against the vendor Ghulam Nabi and the vendees Muhammad Din and Muhammad Yaqub, Feroze was a rival pre-emptor. The suit was decreed in favour of the plaintiff. In this suit it was further ruled that the rival pre-emptor would be entitled to take the property if the present plaintiff failed to deposit the money in time therefore the plaintiff lost his right to get the land on the basis of pre-emption and the rival pre-emptor having deposited the price got the property.

2. Having thus failed to get the property by way of pre-emption, the present plaintiff filed this usual suit under the Customary Law seeking a declaration that the sale made by Ghulam Nabi in favour of Muhammad Din and IE4uhammad Yaqub was without legal necessity, without considera tion against law and custom and wag ineffective and void qua his reversionary rights after the death of Ghulam Nabi, defendant No. 1.

3. Several issues were framed. The learned Senior Civil Judge, Jhelum, by his judgment dated 30th January 1960, dismissed the suit, but left the parties to bear their own costs. An appeal filed by Muhammad Yateem before the learned District Judge met the same fate on the 30th July 1960. Hence this Second Appeal.

4. The only issue that has been pressed before me is issue No. 5 which runs as follows :---

5. "Whether the plaintiff is estopped from bringing this suit because he pre-empted the sale in question."

6. In Bohla v. Sheo Chand and others (106 I C 1927) Shadi and Mathra two of the proprietors brought a representative suit on behalf of the proprietary body against one lust. Ladho on the ground that after the death of Har Dayal his land reverted to the proprietary body. Sheo Chand and others who were also members of the proprietary body were plaintiffs in that suit. The suit was decreed. The proprietors then applied for the partition of the Shamilat including the land in suit. Sheo Chand etc. then filed a suit for a declaration that they were the sole owners of the land in dispute and it cannot be partitioned. It was held that-----

7. "I certainly consider that the plaintiffs are now estopped from taking any position contrary to what they alleged in the previous plaint . . . . . it is well known rule of law that when a party has asserted a certain position in a previous litigation he cannot re-agitate the matter on the assumption of fresh facts against persons who were parties whether as plaintiffs or defendants in the previous suit."

8. The proposition of law adumberated in this ruling is undisputed. Even otherwise section 115 of the Evidence Act is attracted only if a person intentionally causes and permits another person to believe a thing to be true and to act upon such belief, he would not be allowed to deny the truth of that thing. In the present case, the right of Ghulam Nabi who sold the property not being in issue the plaintiff cannot even be said to have done something which could have led the other party to believe that Ghulam Nabi had the uninhibited right to alienate the property in dispute and the further and most important condition of "acting upon such belief " by the defendants in that suit does not exist.

9. In the present case, however, the previous suit was a suit for pre-emption and the question raised in the present suit was not in dispute. The only question was whether the property could have been sold by him to a person upon whom the law gave preference to the present plaintiff. The question whether the present plaintiff was a reversioner of Ghalam Nabi or whether the sale was bad in custom was never raised or brought into issue in it. To say, therefore that the plaintiff's conduct in the pre-emption suit estopped him from taking the stand that he did in the present suit is far from legally correct.

10. So far as Order II, rule 2 of the Code of Civil Procedure is concerned, the following decisions need consideration :----

11. Ziaul Haq v. Muhammad Ibrahbn A I R 1920 Lah. 184----

12. "In our opinion, the appellant's contention that the earlier suit is in bar of the present suit cannot succeed. The cardinal condition of the applicability of Order II, rule 2, Civil P. C., is that the cause of action in both cases shall be identical. Moreover, it is essential that the plaintiff should have been bound to sue in the earlier case for the relief for which he prays in the subsequent case. Now though we have no doubt that in the first case the plaintiff was bound to sue for the partition of the immovable property, we see no reason to hold that he was bound to sue for its partition by metes and bounds . . . . ."

13. Inder Singh v. Kartar Singh A I R 1915 Lah. 184----

14. "The learned Divisional Judge in his judgment says that the two defendants gave the plaintiff only a singe cause of action viz., the sale and the transfer of possession of the house as a whole, it appears to me that though a part of the cause of action in the present case is the same as in the previous one, the whole cause of action is not the same, in the former case the cause of action was the alienation of the house in which, it was alleged, the widow had only a life-interest, the alienation not having been made for valid necessity. In the present case the cause of action is the sale coupled with the entry of the vendee, Mir Haider, into possession. In the former suit it was not necessary to allege that the vendee had taken possession as that fact was not an essential part of the plaintiff's cause of action. In the present case Mir Raider's entry into possession is an essential part of the cause of action. It has been held that a second suit shall not be barred unless the same cause of action is to be found within the four corners of the plaint in the first suit, and I am clear that the whole of the plaintiff's present cause of action is not to be found within the four corners of the plaint in the previous suit. Bhagat Gobind Das, for the appellant, has cited Khairati v. Akko (1882) 108 P R 1882 in which it was held that a previous suit for declaration in regard to a sale by a widow did not bar a subsequent suit for pre-emption. It was pointed out in that case that the act of the widow was an infringement of two distinct rights possessed by the plaintiffs, viz, their right as reversionary heirs of the widow's husband and their right of pre-emption; although the act of the widow in selling the house was single act. it really gave rise to distinct causes of action, upon which separate suits comprising distinct subject matters might be brought."

15. Khairati and another v. Akko 1882 P R 108-----

16. "We think that the act of the widow may from the plaintiff's point of view be regarded as an infringement of two distinct rights possessed (assuming them to have been possessed) by the plaintiffs, viz. their right as reversionary heirs of the widow's husband and their right of pre-emption, and that although the act of the widow in selling the house was a single act, it really gave rise to distinct causes of action, upon which separate suits comprising distinct subject-matters might be brought."

17. Shuja-ud-Din v. Siraj Din A I R 1941 Lah. 139-----

18. "As held by the Division Bench in 1935, the plaint in 1931 suit was based on failure of consideration, not on the mortgage deed at all. Accordingly, the cause of action in the present suit based on the execution of the mortgage deed is different, and Cl. (3) of Order II, rule 2, Civil P. C., has no application. As held by their Lordships of the Privy Council in 12 I A 116 and 9 Lah. 451, a suit shall include the whole claim with respect to one and the same cause of action, but need not include every cause of action or every claim which the plaintiff may have had against the defendant at the time."

19. Muhammad Khalil Khan and others v. Mahbub Ali Mian and others P L D 1948 P C 131---

20. "The principles laid down in the cases thus far discussed may be thus summarized;

(1) The correct test in cases falling under Order 11. 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 (1868) 11 M I A 551: 2 Sar. 259 (P C).

(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 (1889) 22 Q B D 128 : 58 L J Q B 120.

(3) if the evidence to support the two claims is different, then the causes of action are also different-Brunsden v. Humphrey (1884) 14 QBD141:53LJQB476.

(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, 1884 14QBDI41 :53LBQJ476.

(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 -Mst. Channkour v. Pertab Singh 15 1 A 156 : 16 Cal. 98 (P C). This observation was made by Lord Wastson 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."

21. The transaction out of which the suit for pre-emption and the present suit arose was no doubt the sale and, therefore, one, it is, however, the sameness of the cause of action which attracts the provisions of Order II, rule 2. The cause of action in the previous suit was furnished by the superior right of pre-emption claimed by the plaintiff. In the present suit, the cause of action was based upon reversionary rights and inhibition upon transfer of ancestral property under Custom. These being two distinct causes of action having nothing in common no duty was cast upon the plaintiff to have prayed for both the reliefs in the first suit. Order II, rule 2 is consequently not a bar to this suit.

22. Besides this, only issues Nos. 6 and 9 were decided against the plaintiff by the learned trial Court. Issues Nos, 5 and 9 are, in fact, the same and the stand of the plaintiff-appellant on issue No. 6 has not been disputed by the learned counsel for the respondents before me.

23. The plaintiff did not do anything in the pre-emption suit which could be said to estop him from taking up the plea that the sale made by Ghulam Nabi was ineffective qua him on the death of the former because Ghulam Nabi had no right to sell the property without consideration or legal necessity. Order II, rule 2 of the Civil Procedure Code is also not attracted. I, therefore, decide this issue in favour of the plaintiff-appellant.

24. This appeal is consequently accepted with costs throughout and the suit of the plaintiff is decreed.

25. S. A. H. Appeal accepted.