ABDUL HAKIM AND 2 OTHERS Versus SAADULLAH KHAN AND

1. SAJJAD AHMAD, J .-This appeal by special leave, has been brought in the following circumstances :

2. On 8-1-1961, respondents 1 and 2 herein, sued the appellants for possession of agricultural land measuring 15 kanals and 9 marlas, bearing Khasra Nos. 42 and 52/2, situated in the area of village Pirsado, in the District of Mardan. It was alleged that the respondents aforesaid were the owners of this land which the appellants had occupied illegally as trespassers in collusion with the respondents' tenants within a year of the institution of the suit.

3. The suit was resisted by the appellants on two main grounds, firstly, that it was barred under Order II, rule 2 of the Civil Procedure Code, and secondly, that it was barred by time. It was also averred that the appellants have held the land adversely to the plaintiffs for more than 12 years before institution of the suit and have thus gained a title to it by prescription. The relevant issues framed on these contentions in their serial order were as follows:-

(1) Whether the suit was within time?

(4) Are the plaintiffs the owners of the land in suit and thus entitled to its possession?

(5) Have the defendants 1, 2 and 3, prescribed their title to the land in suit by adverse possession?

(6) Is the suit liable to dismissal under Order II, rule 2 of the Civil Procedure Code?

4. The trial Court (Civil Judge, Mardan) disposed of the suit on issue No. 6 as a preliminary issue and held that the suit as barred under Order II, rule 2 of the Code. This conclusion as based on the reasoning that the plaintiff-respondents' had brought a Civil Suit (No. 135/1) against the defendant-appellants earlier on the 25th of May 1951, for possession of 105 kanals and 6 marlas of land, of which forcible possession had been taken by the appellants and as they had omitted to include in that suit the land now in dispute, of which the appellants had also taken forcible possession, the present suit is barred under Order II, rule 2 of the Code. In consequence of this finding, the suit of the plaintiff-respondents was dismissed. The respondents filed an appeal against this order which was accepted by the learned Additional District Judge, Mardan, on the 1st of December 1962. He held that the land in dispute in the second suit, according to the revenue records, bad remained in possession of the respondents through their lessee one Momin Shah, and since it was not in the possession of the defendant-appellants at the time of the institution of the first suit, no cause of action had arisen for its inclusion in the earlier suit. The learned Additional District Judge reversed the judgment of the trial Judge in issue No. 6 and remanded the case for a fresh decision on the other issues. The appellants did not challenge this remand order in further appeal or revision.

5. After remand, the trial Judge decreed the suit in favour of the respondents, holding them to be its owners. The appellants preferred an appeal to the Court of the Additional District Judge, Mardan, where issue No. 6 was sought to be agitated once again. The learned Additional District Judge held that the appellants had not challenged the decision of this issue made by the remand order of the 1st of December 1962, they were precluded from raising it. In the result he confirmed decree of the trial Court and dismissed the appeal, agreeing with the learned trial Judge on all the issues, including the issue limitation.

6. The appellants preferred a second appeal in the High Court, which was dismissed in limine by a learned Single Judge who concurred with the view of the learned Additional District Judge that the appellants were precluded from re-agitating the bar under Order II, rule 2 of the Civil Procedure Code, as that issue was finally determined between the parties by the judgment of the Additional District Judge, dated the 1st of December 1962 against which they had failed to take their proper remedy. Thereafter, the appellants moved a petition in this Court for special leave to appeal, which was allowed to consider whether on the facts and circumstances of the case, the bar of Order II, rule 2, Civil Procedure Code, stood in the way of the second suit filed by the respondents, as contended for by the appellants.

7. The remand order dated the 1st December 1962, referred to above was made by the learned Additional District Judge under Order XLI, rule 23 of the Code, which is an appealable order as provided for in Order XLIII, rule 1-U of the Code. As no appeal was filed, the order became final, as far as the objection under Order II, rule 2 is concerned and its re-agitation is precluded by subsection (2) of section 105 of the Code, which reads as follows :- .

8. U(2) Notwithstanding anything contained in subsection (1), where any party aggrieved by an order of demand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."

9. The objection even on the merits, is baseless. The plaintiffs did not need to sue the defendants for the land now in dispute, in the earlier suit, because the land at the time was in their own possession arid there was no sense in putting it into litigation, with their other land of which the defendants had taken forcible possession furnishing them a cause of action for their eviction therefrom.

10. The expression "cause of action" in Order II, rule 2, C. P. C. means the cause of action for which a suit is brought. In order that the cause of action for the two suits may be the same, it is necessary not only that the facts which would entitle the plaintiff to ' the right claimed must be the same but also that the infringement of his right at the hands of the defendants B complained against in the two suits, must have arisen in substance out of the same transaction. In considering the application of this bar regard is to be had to the allegations in the two suits without reference to the defence that may be set up by the defendants. As laid down by their Lordships ' of the Privy Council in Muhammad Khalil Khan and others v. Mahbub Ali Mlan and others (I) "the bar under Order II, rule 2 refers entirely to the grounds set out in the plaint as the cause of action or in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour". A rough test, although not a conclusive one is to see whether the same evidence will sustain both suits which would be the case if both the suits are founded on continuous and inseparable incidents in the same transaction. The question, however, is to be examined in substance and not merely on form as the cause of action in the two suits may be found

(1) P L P 1948 PC 131 to be the same, in spite of the facts alleged not being exactly identical in the two cases. It is not open to the plaintiff to up the parts really constituting the same cause of action file different suits in respect of them. In other words, a plaintiff must ask for all his reliefs which flow from the grievances caused to him by the infringement of his rights by defendant in the course of the same transaction, but he cannot and is under no obligation to add to his grievances did not occur in that transaction. If two trespasses are against a defendant,' both in the course of the same transaction, a plaintiff must seek his remedy in one suit against and he cannot split up his cause of action to sue for trespass in one suit and for the other in a subsequent. But where the two trespasses allegedly have taken place different occasions and the second was not in existence the time of, the first suit, as in this case, there was neither occasion nor any necessity for the plaintiff to seek his for the second trespass in the first suit. The second trespass which was committed by the appellants in the present after the first suit had been filed, gave a fresh cause of action to the plaintiff-respondents which validly formed the subject-matter of their second suit. The plea that the second was berred under Order II, rule 2 of the Civil Procedure Code, in the circumstances, is wholly misconceived.

11. As this was the only point on which leave to appeal was granted by this Court and as it has been decided against the appellants, their appeal has to be dismissed, which we hereby do costs.

12. K. B. A. Appeal dismissed.