IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.76 of 2000. Judgment reserved on: 01.03.2011. Date of Decision: 8.3.2011 Mausi Ram and others ..Appellants Versus Amar Nath and another ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes For the Appellant(s): Mr. Ashok Sharma, Advocate. For the Respondent(s): Mr.N.K. Thakur, Advocate. Deepak Gupta, J. 1. This Regular Second Appeal by the plaintiff is directed against the judgment and decree dated 27.9.1999 delivered by learned District Judge, Chamba in Civil Appeal No.53 of 1998 whereby he dismissed the appeal of the appellants and confirmed the judgment and decree dated 13.5.1998 passed by learned Senior Sub Judge, Chamba dismissing the suit of the plaintiff. 2. Briefly stated the facts of the case are that the plaintiff filed a suit that he is owner in possession of the suit land measuring 1-8 bighas and comprised in khasra Nos.372, 374 and 1168 corresponding to earlier khasra numbers 1, 12, 9, 125, 225, 244, 246, 255, 277, 294 and 219. According to the plaintiff - 2 - this land was coming in the possession of the grand father Sh.Udara and after the death of Udara, Sh.Sali Ram father of the plaintiff was in possession. The plaintiff further averred that he had come to know about wrong entries in the revenue papers in the month of June, 1992 and thereafter he knocked the doors of justice but the plaintiff’s suit was dismissed on 5.3.1994 without knowledge and consent of the plaintiff. The plaintiff being an illiterate villager, rustic and old person did not know how his suit had been dismissed and came to know about this fact only after obtaining certified copy of the order dated 5.3.1994 and thereafter he filed the fresh suit on 4.10.1994. 3. In the written statement, it was denied that the plaintiff or his grand father were ever owners in possession of the suit land. It was specifically averred that the plaintiff had nothing to do with the suit land. One of the defences taken was that since the earlier suit of the plaintiff had been dismissed the second suit was not maintainable. 4. Both the Courts below have come to the conclusion that the plaintiff has failed to prove - 3 - that his predecessors were ever owners in possession of the suit land. 5. This appeal was admitted on the following questions of law: “1.Whether the present suit could be said to be barred in view of the provisions of Order 2 Rule 2 CPC when the relief claimed in the earlier suit and in the present suit is same and identical? 2.Whether the plaintiff could be non-suited on the ground that the identity of the new and old khasra numbers was not established whereas as per the pleadings there is no dispute about such identity. 3. Whether the suit could be dismissed on the ground of want of proof of the alleged fraud without framing an issue regarding the alleged fraud?” 6. As far as the first question is concerned, Sh.Ashok Sharma, learned counsel for the appellants submits that when a defendant takes a plea that the suit is bared under Order 2 Rule 2 then the burden is totally on the defendant to place on record the pleadings of the previous suit and must show that the second suit was in respect of the same cause of action. He relies upon the judgment of the Constitution Bench of the Apex Court in Gurbux Singh vs. Bhooralal, AIR 1964 SC 1810, wherein the Apex Court held as follows: “6. In order that a plea of a bar under O. 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 - 4 - previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to 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 O. 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……” 7. He has also placed reliance on the law laid down by the Apex Court in Bengal Waterproof Limited vs. Bombay Waterproof Manufacturing company and another, (1997) 1 SCC 99, wherein the Apex Court held that it was the duty of the defendant to place on record the pleadings of the earlier suit and merely because the plaintiff had in the second plaint made a mention about the earlier suit, was not sufficient to draw an inference that the second suit was barred under Order 2 Rule 2 CPC. - 5 - 8. In the present case also, the defendants did not place on record the pleadings of the first suit. No doubt the plaintiff had stated that he had filed an earlier suit which was withdrawn but from the pleadings of the parties it was not clear what was the prayer made in the earlier suit and it is also not clear what were the issues in the said suit. Therefore, I am of the considered view that both the Courts below erred in holding that the present suit was barred by Order 2 Rule 2 CPC. 9. However, as far as the second issue is concerned, I am of the considered view that the plaintiff has miserably failed to show that he or his predecessors were owner in possession of the suit land. No doubt the plaintiff in his plaint had stated that khasra Nos.372, 374 and 1168 corresponded to earlier khasra numbers 1, 12, 9, 125, 225, 244, 246, 255, 277, 294 and 219 but this averment was denied by the defendants in no uncertain terms. It was for the plaintiff to prove what were the old khasra numbers and what were the new khasra numbers assigned to them. This could have been done by producing the missal haquiat or other revenue records. In the - 6 - present case, the plaintiff has miserably failed to link khasra Nos.372, 374 and 1168 with the older khasra numbers. When a plaintiff files a suit it is his duty to identify the suit land and trace it back so that he could relate it to the earlier revenue record produced by him. No such effort has been made by the plaintiff. Therefore, the second question of law is decided in favour of the plaintiff. 10. As far as the third question of law is concerned, any party who pleads fraud must not only plead fraud but must set-out the particulars of fraud in the plaint itself. The plaint is totally lacking in this regard and therefore the plaintiff has miserably failed to prove that the earlier judgment and decree was obtained by fraud. 11. In view of the above discussion, the appeal is dismissed. No order as to costs. March 8, 2011. ( Deepak Gupta ), J. PV