THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL Nos.172, 285, 286 and 418 OF 2010 16.06.2010 Between: Bushi Raja Rao and others ….Appellants AND Tayi Subba Rao …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL Nos.172, 285, 286 and 418 OF 2010 COMMON JUDGMENT: The dispute in these cases is between Tayi Subba Rao (hereafter called, plaintiff) who is admittedly owner and Bushi Raja Rao and his three sons Yesurathnam, Solman Raju and Abraham (hereafter called, defendants) in respect of double crop wet land admeasuring Acs.3.00 in R.S.No.835 of Bandarugaruvu, Hamlet of Tundurru Village, Bhimavaram, West Godavari District. Defendants allege that first defendant was inducted as cultivating tenant by the father of plaintiff and that they are entitled to the benefits under Andhra Pradesh (Andhra Area) Tenancy Act, 1956. The plaintiff, however, denies the status of defendants. He alleges that they are encroachers liable to be evicted in the due process of law and liable to pay compensation for the use and occupation of agricultural lands. Plaintiff succeeded substantially before the trial Court as well as appellate Court. Defendants filed three second appeals and plaintiff also filed second appeal against refusal of the first appellate Court in allowing cross-objections in one of the matters. The brief background of common case is as follows. Plaintiff filed O.S.No.82 of 1987 on the file of the District Munsif, Narsapur, for permanent injunction alleging that he has been in possession of property having inherited the same under Will executed by his father and that Raja Rao is threatening to encroach upon the suit land. Initially his prayer for interlocutory injunction in I.A.No.531 of 1987 was rejected on 13.04.1988. But, he was successful in getting favourable order in C.M.A.No.7 of 1988 on the file of the Court of the Subordinate Judge, Narsapur on 16.02.1990. Defendant Raja Rao filed C.R.P.No.631 of 1990 which was dismissed by this Court. Subsequently, plaintiff filed O.S.No.66 of 1990 for damages towards the value of paddy realised by defendants from November, 1987 to 1990 in a sum of Rs.50,266/- alleging that defendants encroached into the land in April, 1988. Presumably for this reason, the suit from Narsapur Court was transferred to the Court of Subordinate Judge, Bhimavaram to be tried along with O.S.No.66 of 1990. Plaintiff instituted yet another suit being O.S.No.139 of 1993 for recovery of a sum of Rs.66,000/- towards damages for the period 1990 - 1993 being the value of paddy and coconuts. Yet again the plaintiff filed another suit being O.S.No.5 of 1995 for recovery of damages of Rs.31,800/- for 1993-1994 and 1994-1995 towards the value of the coconuts and future profits. Thus, altogether four suits came to be filed. Learned trial Judge clubbed all the suits. Evidence was recorded in O.S.No.5 of 1995. Plaintiff examined four witnesses – himself being P.W.1. As many as twenty documents were marked for him. First defendant gave evidence as D.W.1 besides producing three more witnesses and marking Exs.B.1 to B.4. Considering the evidence on record, the trial Court by Judgment and decree dated 04.06.2001 dismissed the injunction suit and decreed O.S.Nos.66 of 1990, 139 of 1993 and 5 of 1995 for possession and payment of Court granted damages. Be it noted, O.S.No.118 of 1990 (originally filed as O.S.No.82 of 1987 on the file of the Court of the District Munsif, Narsapur) was dismissed in view of the suit for possession. Defendants preferred appeals against three suits except O.S.No.118 of 1990. Unlike the trial Court, appellate Court, namely, the Court of III Additional District Judge (FTC), Bhimavaram delivered three separate Judgments. All the appeals were dismissed. The cross objections filed by plaintiff in A.S.No.110 of 2002 (against O.S.No.66 of 1990) was also not considered. Therefore, defendants and the plaintiff filed appeals, the details of which are mentioned in the table below. Sl. No. O.S.No. Relief in the suit A.S.No. S.A.No. 1. 66 of 1990 For damages of Rs.50,266/- from 11/87 to 1990 & value of coconuts 110 of 2002 285 of 2010 2. 66 of 1990 -do- “ 418 of 2010 3. 139 of 1993 For Rs.66,000/- being the value of paddy during 1990-1993 and value of coconuts 111 of 2002 280 of 2010 4. 5 of 1995 For possession and past and future profits 109 of 2002 172 of 2010 Before noticing submissions of the counsel, it is necessary to summarise the findings by appellate Court as well as trial Court. First defendant was not in possession of suit schedule land on the date of filing of O.S.No.118 of 1990 but only after interlocutory injunction granted by trial Court in I.A.No.531 of 1987, which was confirmed in C.M.A.No.7 of 1988 (Ex.A.7) and confirmed by High Court in S.A.No.631 of 1990 (Ex.A.8). The first defendant cannot claim as cultivating tenant and he came into possession of the land after the trial Court granted injunction. All the cases filed by first defendant before the Tenancy Tribunal were dismissed and therefore, the defendants cannot dispute the title of plaintiff. The civil Court’s jurisdiction thus is not barred. After entering into possession of the suit schedule property some how or other, defendants cultivated the lands and also enjoyed usufruct of 14 or 15 coconut trees and did not pay any amount to plaintiff. The entire produce was taken by defendants. In the absence of any evidence like Adangal extracts, the version of defendants that crops were damaged due to excessive rains and floods cannot be believed. In O.S.No.5 of 1995; corresponding to A.S.No.109 of 2002 – the plea of defendants that the suit for possession is barred by limitation and that Order II Rule 2 of Code of Civil Procedure (CPC) bars successive suits was rejected. Counsel for defendants submits that plaintiff failed to prove the possession and therefore, defendants cannot be treated as encroachers. When injunction suit was filed in 1988 alleging that he is in possession and injunction was granted in favour of plaintiff, subsequently the suit was not amended into one seeking possession even though it was alleged that defendants trespassed into the land. Therefore, subsequent suit for possession is not maintainable and barred under Order II Rule 2 of CPC. Both the Courts below calculated mesne profits in a perverse and unsustainable manner and plaintiff never adduced any evidence with regard to yield from suit schedule land. He placed reliance on Saghir Hassan v Tayab Hasan[1], Lucy Kochuvareed v Mariappa Gounder[2] and K.Chennaiah v K.Balaiah[3]. Counsel for plaintiff who also filed S.A.No.418 of 2010 submits that in the absence of plea that subsequent suit is also based on the same cause of action, Order II Rule 2 of CPC does not bar a suit for possession. He would urge that when injunction was in force, plaint was dismissed and therefore, he was compelled to file a comprehensive suit for possession and future profits in addition to the suits for damages for subsequent periods. In such an event, the plea of bar under Order II Rule 2 pf CPC cannot be countenanced by the Court. The trespass by defendants after their dismissal of civil revision petition itself is a fresh cause of action, and therefore, both the Courts came to conclusion correctly. All along, defendants have been contending that first defendant was inducted into possession by the father of plaintiff and therefore, even if the Will, Ex.A.6 is not believed by appellate Court, it is not relevant especially when there is no rival claim as against plaintiff. The counsel placed reliance on Gurbux Singh v Bhooralal[4], Abburi Rangamma v Chitrapu Venupurnachandra Rao[5] and Ramchander Naik v Linga Ramachanderiah[6]. In a recent decision in S.Nazeer Ahmed v State Bank of Mysore[7], the facts are as follows. State Bank of Mysore (SBM) advanced Rs.1,10,000/- to Nazeer Ahmed against hypothecation of the post and equitable mortgage of immovable property. There was default necessitating SBM filing O.S.No.131 of 1984 for recovery. It was decreed and execution was taken out to proceed against the hypothecated bus. As the bus could not be traced, the Bank tried to proceed against mortgaged properties. The borrower’s objection that there was no decree on mortgaged property was upheld. The SBM then instituted O.S.No.35 of 1993 for enforcement of equitable mortgage. The suit was resisted relying on Order II Rule 2 of CPC. The trial Court rejected the plea but dismissed the suit as barred by limitation. SBM’s appeal was allowed. Before the Supreme Court inter alia it was pleaded that second suit was hit by Order II Rule 2 of CPC. Rejecting the plea, Supreme Court held that as cause of action for the second suit is different, the suit is not hit by principle of Order II Rule 2 of CPC. Relying on Mohammad Khalil Khan v Mahbub Ali Mian[8] and the decision of Constitution Bench of Supreme Court in Gurbux Singh and M/s.Bengal Waterproof Limited v M/s.Bombay Waterproof Manufacturing Company[9], Supreme Court observed as under (paras 9 and 14). Now, we come to the merit of the contention of the appellant that the present suit is hit by Order 2 Rule 2 of the Code in view of the fact that the plaintiff omitted to claim relief based on the mortgage, in the earlier suit OS No. 131 of 1984. Obviously, the burden to establish this plea was on the appellant. The appellant has not even cared to produce the plaint in the earlier suit to show what exactly was the cause of action put in suit by the Bank in that suit. That the production of pleadings is a must is clear from the decisions of this Court in Gurbux Singh v Bhooralal and Bengal Waterproof Ltd. v Bombay Waterproof Mfg. Co. From the present plaint, especially Paras 10 to 12 thereof, it is seen that the Bank had earlier sued for recovery of the loan with interest thereon as a money suit. No relief was claimed for recovery of the money on the foot of the equitable mortgage. In that suit, the Bank appears to have attempted in execution, to bring the mortgaged properties to sale. The appellant had objected that the suit not being on the mortgage, the mortgaged properties could not be sold in execution without an attachment. That objection was upheld. The Bank was therefore suing in enforcement of the mortgage by deposit of title deeds by the appellant. … Applying the test so laid down, it is not possible to come to the conclusion that the suit to enforce the equitable mortgage is hit by Order 2 Rule 2 of the Code in view of the earlier suit for recovery of the mid-term loan, especially in the context of Order 34 Rule 14 of the Code. The two causes of action are different, though they might have been parts of the same transaction. Even otherwise, Order 34 Rule 14 read with Rule 15 removes the bar if any that may be attracted by virtue of Order 2 Rule 2 of the Code. The decision of the Rangoon High Court in Pyu Municipality v U.Tun Nyein[10]relied on by learned counsel for the appellant does not enable him to successfully canvass for the position that the present suit was barred by Order 2 Rule 2 of the Code, as the said decision itself has pointed out the effect of Order 34 Rule 14 and in the light of what we have stated above. In view of the above precedent, it is not necessary to refer to various authorities referred to across the bar. In this case also though plaintiff initially filed suit for injunction, subsequently he filed suits for recovery of damages for use and occupation of suit schedule property and filed a comprehensive suit for recovery of possession, future and mesne profits. Therefore, the suit is not barred under Order II Rule 2 of the CPC. Insofar as mesne profits are concerned, it is a question of fact and trial Court as well as appellate Court did not commit any error nor ignored principles of law in determining past and future profits. It is a question of fact which cannot be agitated in second appeal. For this reasoning, the second appeal filed by plaintiff being S.A.No.418 of 2010 also does not merit any consideration. In the result, for the above reasons, all the four appeals are dismissed without any order as to costs. _______________ (V.V.S.RAO, J) 16.06.2010 Pln [1] AIR 1940 Allahabad 524 [2] AIR 1970 SC 1214 [3] 1990 (2) APLJ 25 (SN) [4] AIR 1964 SC 1810 : (1964) 7 SCR 831 [5] AIR 1966 AP 325 [6] AIR 1971 AP 395 [7] (2007) 11 SCC 75 : AIR 2007 SC 989 [8] AIR 1949 Privy Council 78 [9] (1996) Supp 8 SCR 695 [10] AIR 1933 Rangoon 158