Case: Bapusaheb Chimasaheb Naik-Nimbalkr(Dead Through Lrs.)  Vs. Mahesh Vijaysinha Rajebhosale

cause of action that had arisen to plaintiff on the death of her mother on 2.9.1968, obviously under Article 65(b) but the same was again a case where mother was having a life interest. In the instant matter, as Shakuntalabai was not having a life interest, Article 65(b) of the Act has no application.12. Article 65(b) applies where the female was a `limited owner with regard to the disputed property. Hence, if the sale is not for legal purposes, it would not be binding on the estate, the husbands heirs who would be entitled to inherit the estate after the widows death, would be entitled on such death to sue for the recovery of the property from the purchaser. As their right would be one derived from the husband and not from the widow, it would be independent of the widow and they would be the persons "entitled to sue for possession of the property on the death of the widow" within the meaning of Explanation (b) to Article 65. Hence, the above Explanation will apply to their suit and they would be entitled to a period of 12 years from the widows death within which to bring the suit as held by Full Bench verdicts in Amar Singh & Ors. v. Sewa Ram & Ors. AIR 1960 Punjab 530, Harak Singh v. Kailash Singh and Anr. AIR 1958 Pat. 581 ; and Mt. Lukai W/o Katikram and Ors. v. Niranjan Dayaram and Ors. AIR 1958 MP 160 .13. In the instant case possession never became adverse to the plaintiffs. There is concurrent finding recorded that the plaintiffs were in joint possession of the disputed land on the date of filing of the suit. The defendants have taken the plea of ouster and the suit has been filed beyond 12 years of death of Shakuntalabai but they have not been able to prove their adverse possession. On the contrary the finding is that Chimasaheb admitted the title of Anandibai. The finding is that till 1976, Chimasaheb never denied the title of Anandibai. Be that as it may. As adverse possession has not been concurrently found by the three courts and in this case the starting point of limitation would not be the date of death of Shakuntalabai in the year 1962 as she was full owner, as such suit could not be said to be barred by limitation.14. Coming to the second question raised on behalf of the appellants as to the suit being barred by Order 2, Rule 2 of the CPC, suffice it to say that the earlier suit based on different cause of action for a declaration for one-half of the share in certain other properties was filed by Anandibai in the year 1963. At that time the property in question was not included in the suit. It had been found by courts below, the suit of 1963 was based on different cause of action on the basis of deed of 1957 whereas in the instant case, cause of action is different. It is on the basis of death of absolute owner Shakuntalabai in the year 1962, Anandibai became owner and plaintiffs had in turn inherited from Anandibai. Thus the cause of action of the suit in the present case for partition is different and dispute as to mutation had been subsequently decided. Thus, the suit for partition as filed, could not be said to be barred by Order 2, Rule 2 CPC. The defendants were trying to sell the property in the year 1979 as such the plaintiffs in the suit prayed for partition and separate possession. Plaintiffs could not have claimed interest in the land in the life-time of Anandibai and the cause of action in the previous suit for declaration of title filed by Anandibai was materially different.15. Rule 2 Order 2 CPC does not apply if the cause of action in the subsequent suit is different from that of the former suit as held by this Court in State of M.P. v. State of Maharashtra (1977) 2 SCC 288. In State of Maharashtra v. National Construction Co. (1996) 1 SCC 735 , when the first suit was filed to enforce bank guarantee whereas second suit to claim damages for breach of underlying contract, this Court laid down that the subsequent suit was not barred by Order 2, Rule 2 CPC. In the case of continuing or recurring wrong there would be corresponding continuing or recurring causes of action when the first suit was based on infringement of plaintiffs trade mark, second suit was on the continuing act or infringement of its trade mark and continuous passing of action subsequent to filing of the earlier suit, in Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co. (1997) 1 SCC 99 , it was held that the cause of actions in two suits were different as such the bar of Order 2, Rule 2 CPC was not attracted. The essential requirement for applicability of Order 2, Rule 2 CPC is to establish the identity of causes of action in the previous suit and the subsequent suit so as to attract the bar as held in Deva Ram v. Ishwar Chand 1995(3) R.R.R. 717 : (1995) 6 SCC 733 and Gurbux Singh v. Bhooralal AIR 1964 SC 1810 .16. In the instant case it cannot be said that the second suit for partition was in respect of the same cause of action as that on which the previous suit was based. In respect of the cause of action of the previous suit plaintiff was not entitled to more than one relief. Hence, it could not be said that the plaintiff has omitted to sue for relief for which second suit has been filed. Suit for partition with respect to joint property is based on continuing cause of action, as such the suit for partition could not be said to be barred by Order 2, Rule 2 CPC. Submission to the contrary is too tenuous to be accepted.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We are unable to accept the submission as Explanation (b) to Article 65 of the Act is applicable only in the case where property is not claimed through the female but independently of woman who has died. The word "entitled" contained in Explanation (b) to Article 65 clearly means a person is entitled independently of the right of the Hindu or Mohammedan female. In case she is absolute owner Article 65(b) will have no application. In other words, it is necessary to trace the right to someone else and not to the Hindu or Mohammedan female, as the case may be. In the instant case, Shakuntalabai, daughter of Shankara Rao became absolute owner of the property on 6.2.1958 and on her death on 1.10.1962, the right accrued to Anandibai on the basis of inheritance made from Shakuntalabai who was the owner of the ½ share in question. When the property is claimed from a woman, Hindu or Mohammedan, who was the full owner, it could not be said that Anandibai or the plaintiffs became entitled to the property independently of the rights of female i.e. Shakuntalabai. Thus the suit filed by such heir of female for separate possession/partition would not be governed by Explanation (b) to Article 65. In such a case limitation would not commence as per Explanation (b) to Article 65 on death of female Hindu. However, the starting point of limitation for computation of 12 years would be the date of start of adverse possession otherwise.In the instant case possession never became adverse to the plaintiffs. There is concurrent finding recorded that the plaintiffs were in joint possession of the disputed land on the date of filing of the suit. The defendants have taken the plea of ouster and the suit has been filed beyond 12 years of death of Shakuntalabai but they have not been able to prove their adverse possession. On the contrary the finding is that Chimasaheb admitted the title of Anandibai. The finding is that till 1976, Chimasaheb never denied the title of Anandibai. Be that as it may. As adverse possession has not been concurrently found by the three courts and in this case the starting point of limitation would not be the date of death of Shakuntalabai in the year 1962 as she was full owner, as such suit could not be said to be barred by limitation.14. Coming to the second question raised on behalf of the appellants as to the suit being barred by Order 2, Rule 2 of the CPC, suffice it to say that the earlier suit based on different cause of action for a declaration for one-half of the share in certain other properties was filed by Anandibai in the year 1963. At that time the property in question was not included in the suit. It had been found by courts below, the suit of 1963 was based on different cause of action on the basis of deed of 1957 whereas in the instant case, cause of action is different. It is on the basis of death of absolute owner Shakuntalabai in the year 1962, Anandibai became owner and plaintiffs had in turn inherited from Anandibai. Thus the cause of action of the suit in the present case for partition is different and dispute as to mutation had been subsequently decided. Thus, the suit for partition as filed, could not be said to be barred by Order 2, Rule 2 CPC. The defendants were trying to sell the property in the year 1979 as such the plaintiffs in the suit prayed for partition and separate possession. Plaintiffs could not have claimed interest in the land in the life-time of Anandibai and the cause of action in the previous suit for declaration of title filed by Anandibai was materially different.15. Rule 2 Order 2 CPC does not apply if the cause of action in the subsequent suit is different from that of the former suit as held by this Court in State of M.P. v. State of Maharashtra (1977) 2 SCC 288.   In State of Maharashtra v. National Construction Co. (1996) 1 SCC 735  , when the first suit was filed to enforce bank guarantee whereas second suit to claim damages for breach of underlying contract, this Court laid down that the subsequent suit was not barred by Order 2, Rule 2 CPC. In the case of continuing or recurring wrong there would be corresponding continuing or recurring causes of action when the first suit was based on infringement of plaintiffs trade mark, second suit was on the continuing act or infringement of its trade mark and continuous passing of action subsequent to filing of the earlier suit, in Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. Co. (1997) 1 SCC 99  , it was held that the cause of actions in two suits were different as such the bar of Order 2, Rule 2 CPC was not attracted. The essential requirement for applicability of Order 2, Rule 2 CPC is to establish the identity of causes of action in the previous suit and the subsequent suit so as to attract the bar as held in Deva Ram v. Ishwar Chand 1995(3) R.R.R. 717 : (1995) 6 SCC 733     and Gurbux Singh v. Bhooralal AIR 1964 SC 1810  .16. In the instant case it cannot be said that the second suit for partition was in respect of the same cause of action as that on which the previous suit was based. In respect of the cause of action of the previous suit plaintiff was not entitled to more than one relief. Hence, it could not be said that the plaintiff has omitted to sue for relief for which second suit has been filed. Suit for partition with respect to joint property is based on continuing cause of action, as such the suit for partition could not be said to be barred by Order 2, Rule 2 CPC. Submission to the contrary is too tenuous to be accepted.