-A Ji^ ^< .5 a. Smt. Sahodra widow of Late Pyarelal, aged about 68 f^ , years, resident of Village Ranisagar, Sarangarh, District Raigarh (CG) Jugal Kishor, son of Late Pyarelal, aged 39 years , resident or Village Tata, Post Manpasar, Tahsil Bilaigarh, District Raipur. Kamal Kishor, son of Late Pyarelal, age about 45 years, resident of Village Ranisager, Sarangarh, Disrict Raigarh (CG). c. d. Nawal Kishor, son of Late Pyarelal, aged 43 years, Village Ranisagar, Sarangarh , District Raigarh (C.G.). f. Smt. Durgesh Nandini , Daughter of Late Pyarelal , Wife of Shri Anil Kesharwani , aged 47 years , resident of Shivrinarayan , District Janjgir -Champa (C.G.). Smt. Rajni , daughter of Late Pyarelal and Wife of Shri Vijay Keshrwani , aged 45 years , resident of Shivrinarayan , District Janjgir -Champa ( C.G.) ^.^^ ^s.^ f^ tri%i?%'A ^ "@) o ^-. -. \fl IN THE HIGH_COURT OF JUbICATURE AT BILASPUR CIVIL REVISION N0. °1 OF 2009 ^ APPLICANTS Defendant No.l to 3 -^e^ k:?^\ c.U^-^-, .f ^^^^'•^^^.p^ ^••^^^^f^'a ^^5;^ar ^ 4. ^ RESPONbENTS Plaintiffs % ^e^ ^ ^ t//^^ i^^ ^ ^-' .> --^^- ^s.^^) Vs 1. Ramlal, son of Shri Tarachand Kesharwani, aged 71 years. rPyarelal, son of Shri Tarachand Kesharwani, aged 76 years. 3. Bhagwan Prasad, son of Shri Tarachand Kesharwani, aged 64 years. All are residents of Village Tata, Tehsil Bilaigarh, District Raipur (CG). 1. Ashok Kumar, son of Shri Ratan Lal Kesharwani, aged 42 years. 2. Devendra Kumar, son of Shri Ratan Lal Kesharwani, aged 32 years. 3. Mahendra Kumar, son of Shri Ratan Lal Kesharwani, aged 30 years. No.l to 3 are residents of Village Tata, Tehsil Tehsil Bilaigarh, District Raipur, presently residing at Ashok Photo Copiers (Photocopy \ shop), Purani Basti, Near Lohar Chowk, Raipur- 493001 CP Defendant No.4 4. State of Chhattisgarh, through the Collector, Raipur. CIVIL REVISION UNDER SECTION 115 OF THE CODE OF CIVIL PROCEbURE. 1908 HIGH COURT OF CHHATTISGARH AT BILASPUR z^ Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra ClviLRevision No.1 of 2009 Applicants Non-ApDlicants versus Ramlal and others Ashok Kumar and others Present: Shri Rajeev Shrivastava and Shri Malay Shrivastava, counsel for the applicants. Shri C.R.Sahu, counsel for non-applicants No.1 to 3. Shri Sameer Behar, Panel Lawyer for the State/non-applicant No.4. ^ Civil Revision under Section 115 ofthe Code of Civil Procedure, 1908 ORDER (Passed on 17th August, 2010) The trial Court has dismissed the defendants' application under Order 7 Rute 11 of the Code of Civil Procedure, 1908 (henceforth 'the Code'), which the defendants/applicants had preferred on the submission that the present subsequent suit is barred under Order 2 Rule 2 of the Code. 2. The earlier suit was preferred by the plaintifTs Ashok Kumar, Devendra Kumar and Mahendra Kumar, all sons of Ratan Lal Kesharwani on 6-1-2003 against 15 defendants including Ramlal, Pyarelal and Bhagwan Prasad, who are the 3 defendants in the present subsequent suit. 3. In the earlier suit, the plaintiffs claimed title on the basis of the Will executed by Itwari Prasad on 22-8-1994, whereas the defendants' ••^.^'"•'^ ,^y<u^f\ <": i' . ^ :.. 1 .."'t .1 %^w-^^\/ claims are based on the Will executed by Radhabai, widow of Itwari Prasad on 18-3-2000. In the earlier suit, the plaintiffs have stated in paragraph 15 of the plaint that the cause of action arose because the defendants are creating dispute on the strength of the Will executed by Radhabai and have instituted revenue proceedings before the Tahsildar, Bhatgaon. The plaintiffs have prayed for a declaration that the Will executed by Radhabai is not binding on them and is ineffective and void and that defendants No.1 to 3 do not derive any right, title or interest in the suit property. They have also prayed for grant of a decree of permanent injunction. 4. In the subsequent suit filed on or about 7-5-2008, Ramlal, Pyarelal and Bhagwan Prasad have been arrayed as defendants. The allegations in the plaint in the subsequent suit is that the defendants have filed one Istgasa before the Sub-Divisional Magistrate under Sections 145, 146 of the Code of Criminal Procedure in 2004 in which the Magistrate passed an order on 16-6-2004 for attachment of the property. This order was set aside by the 1st Additional Sessions Judge, Baloda Bazar in Criminal Revision No.397/2004. According to the plaintiffs, the Will executed by Itwari Prasad is the last Will, however, the defendants No.1 to 3 have put on a board at the spot, i.e., on the suit land to the effect that no other person except the defendants should tryto cultivate the land and if any such steps are taken by any other person, he shall be solely responsible. This board was put by defendants No.1 to 3 in April, 2008 and treating this as a cause of action, the present subsequent suit has been filedon or about 7-5-2008. '^^-..,„•;..•'" •^.^- ^' 5. Learned counsel for the applicants has relied on Dadu Dayalu Mahasabha, Jaipur (Trust) vs. Mahant Ram Niwas and another, (2008) 11 SCC 753 and has drawn attention of this Court to paragraphs 22, 25, 27 and 28 of the report. Learned counsel would submit that the present subsequent suit is apparently barred under Order2 Rule 2 ofthe Code. 6. Learned counsel for non-applicants No.1 to 3 has submitted that both the suits are based on different causes of action, therefore, provision under Order 2 Rule 2 of the Code is not applicable. 7. Sub-rule (1) of Rule 2 of Order 2 of the Code provides that 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. Sub-rule (2) of Rule 2 of Order 2 of the Code provides that where a ptaintiff omits to sue in respect of, or intentionally reliriquishes, any portion of his claim, he shall not afterwards sue in respect ofthe portion so omitted or relinquished. 8. From the contents of both the suits, as mentioned earlier in this order, it would be apparent that both the suits are based on different causes of action. Though the basis of the suit, as claimed by the plaintiffs, is the Will executed by Itwari Prasad but the cause of action for claiming the relief in both the suits are different. The proceedings before the revenue Court under Sections 145, 146 of the Code of Criminar Rrocedure was initiated by defendants No.1 to 3 in the year / 2004, whereas the earlier suit was filed on or about 6-1-2003. > ^.^,,<... 4 9. In view of the above, since both the suits are based on different causes of action, the present subsequent suit is not barred under Order 2 Rule 2 of the Code. 10. The civil revision fails and is hereby dismissed. There shall be no order as to costs. Sd/- Prashant Kumar Mishra Judge Gopal