1. The present Second Appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellant herein
- original plaintiff to quash and set aside the judgement and decree dated 14/10/2011 passed by learned Additional District Judge, Navsari in Regular Civil Appeal No.52 of 2006, by which, learned Appellate Court has allowed the said appeal preferred by respondent No.1 herein - original defendant No.1 and has quashed and set aside the judgement and decree dated 12/05/2006 passed by learned Trial Court in Regular Civil Suit No.206 of 2002.
2. Facts leading to the present second appeal, in nutshell, are as under:
It appears that the appellant herein - original plaintiff and respondent Nos.2 to 5 herein - original defendant Nos.2 to 5 are brothers and sisters and original defendant No.1 is uncle. It was the case on behalf of the plaintiff that his father namely Rameshchandra Kansara and his uncle - original defendant No.1 were doing the business in the name and style of "M/s.Ramesh Brothers" and they were parters. It was the case on behalf of the plaintiff that the suit property was purchased from the income of "M/s.Ramesh Brothers" and the suit property was situated at Plot No.B/2 in Navsari Udhyognagar Sahkari Sangh Limited. It was the case on behalf of the plaintiff that the lease deed was executed by father of the plaintiff and original defendant No.1. It was the case on behalf of the plaintiff that M/s.Ramesh Brothers firm is also doing business in the name and style of "National Industries" in the suit property. According to the plaintiff, father of the plaintiff died on 21/10/1988. It was the case on behalf of the plaintiff that agreement dated 03/08/1988 was executed between the father of the plaintiff and original defendant No.1, by which, it was agreed that defendant No.1 shall have 45% share and father of the plaintiff have 55% of share in the suit property. That property was not divided as per the agreement dated 03/08/1988.
It appears that appellant herein - original plaintiff instituted Regular Civil Suit No.238 of 1992 against the respondents herein - original defendants inclusive of defendant No.1 for a declaration that as per the agreement dated 03/08/1988 the plaintiff and original defendant Nos.2 to 5 have 55% share in the suit properties. At this stage, it is required to be noted that in the meantime, father of the plaintiff died and, therefore, plaintiff instituted the aforesaid suit for himself and for his brothers and sisters for getting their shares as per agreement dated 03/08/1988. It appears that the said suit came to be decreed and it was declared that plaintiff and original defendant Nos. 2 to 5 in the aforesaid suit are entitled to 55% share in the suit properties as per agreement dated 03/08/1988.
3. That thereafter the plaintiff instituted Regular Civil Suit No.206 of 2002 (Old Special Civil Suit No.43 of 1998) in the Court of learned Principal Senior Civil Judge, Navsari against the defendants for partition of the suit property and for declaration that the plaintiff and defendant Nos.2 to 5 are entitled to obtain 11% share from the suit property and for mesne profit and entitled to receive Accounts from the defendant No.1. It is required to be noted that the aforesaid Suit is absolutely based upon judgement and decree passed by the learned Civil Court in Regular Civil Suit No.238 of 1992 declaring that the plaintiff and his brothers and sisters have 55% share in the suit property. That the said suit was resisted by defendant No.1 by submitting that the said suit was barred under Order II Rule 2 of the Code of Civil Procedure as prayer for partition of the suit property could have been prayed by the plaintiff in earlier Suit. Despite the above, the learned Principal Senior Civil Judge, Navsari vide judgement and order dated 12/05/2006 has partly allowed the said Suit and granted the following reliefs:
"(1) The plaintiff's suit is partly allowed.
(2) The plaintiff and defendants No.2 to 5 are each entitled to obtain 11% share from the suit properties.
(3) The defendants no.2 to 5 directed to affix the deficit court fee stamp as per the plaintiff.
(4) The plaintiff is also entitled to receive Accounts from the Defendant No.1.
(5) A Commissioner be appointed for making partition of the suit properties and other acts to be done and submit his report within one month from the date of this order.
(6) The plaintiff is directed to deposit Rs.2000/- towards remuneration of the commissioner.
(7) On payment of P.F. and Commissioner's fee, commission patra be issued accordingly.
(8) Defendant No.1 shall pay cost of plaintiff and bear his own.
(9) Preliminary decree be drawn accordingly, after defendants No.2 to 5 affix the deficit Court Fee stamp."
4. Being aggrieved by and dissatisfied with the judgement and decree dated 12/05/2006 passed by learned Principal Senior Civil Judge, Navsari in Regular Civil Suit No.206 of 2002 (Old Special Civil Suit No.43/1998), respondent No.1 herein - original defendant No.1 has preferred appeal before learned Additional District Judge, Navsari and learned Additional District Judge, Navsari by judgement and order dated 14/10/2011 has allowed the said appeal and has quashed and set aside the judgement and decree dated 12/05/2006 passed by the learned Trial Court in Regular Civil Suit No.206 of 2002 on the ground that the suit filed by the plaintiff was barred under Order II Rule 2 of the Code of Civil Procedure.
Being aggrieved by and dissatisfied with the judgement and order dated 14/10/2011 passed by learned Appellate Court in quashing and setting aside the judgement and decree passed by learned Trial Court, the appellant herein - original plaintiff has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
5. Mr.Ravish Bhatt, learned advocate appearing on behalf of the appellant herein has vehemently submitted that learned Appellate Court has materially erred in holding that the suit filed by the appellant herein - plaintiff was barred under Order II Rule 2 of the Code of Civil Procedure. It is submitted that the Appellate Court has not properly appreciated that prayer/relief sought in the earlier suit was for declaration only and relief sought in the present suit is for partition, which is altogether different relief and, therefore, the subsequent suit for partition cannot be said to be barred under Order II Rule 2 of the Code of Civil Procedure. Mr.Bhatt, learned advocate appearing on behalf of the appellant has heavily relied upon the decision of the Patna High Court rendered in the case of Mukha Singh and others V/s. Ram Chariter Singh and others reported in AIR 1956 PATNA 143 in support of his above submissions. By making above submissions and relying upon above decision, it is requested to allow the present Second Appeal.
6. Heard Mr.Bhatt, learned advocate appearing on behalf of the appellant at length and considered the impugned judgement and orders passed by both the Courts below.
7. At the outset, it is required to be noted that when the plaintiff earlier filed the suit against the defendants more particularly defendant No.1 being Regular Civil Suit No.238 of 1992, for declaration that the plaintiff and defendant Nos.2 to 5 i.e. his brothers and sisters have 55% share in the suit properties in question on the basis of the agreement dated 03/08/1988 executed between father of the plaintiff and his uncle (defendant No.1) - partners of "M/s.Ramesh Brothers", at that stage, the plaintiff ought to have prayed the relief for partition and possession also. Admittedly, appellant herein - original plaintiff did not ask for relief of partition and/or even the possession with respect to their shares, which they have claimed in the suit premises. After the said suit was decreed, thereafter, the plaintiff instituted the present suit for partition basically claiming relief against defendant Nos.2 to 5 for declaration that the plaintiff and defendant nos.2 to 5 have 11% share and for partition of the same, though it was required to be noted that the entire suit property is in possession of defendant No.1. Therefore, it appears that though in the subsequent suit the relief has been sought against defendant Nos.2 to 5 only but in fact effect of the said relief would be against defendant No.1, who is in possession of the entire property. It appears that only with a view to get out of bar under Order II Rule 2 of the Code of Civil Procedure, the suit is cleverly drafted and relief is sought against defendant Nos.2 to 5 which will affect defendant No.1, who is in possession of the suit premises. Under the circumstances, when the learned Appellate Court has held that the present suit was barred under Order II Rule 2 of the Code of Civil Procedure by observing that relief of partition and possession ought to have been prayed by the plaintiff in the earlier suit being Regular Civil Suit No.238 of 1992 and when consequently the Appellate Court has quashed and set aside the judgement and decree passed by the learned Trial Court decreeing the Suit, it cannot be said that the learned Appellate Court has committed any error and/or illegality. The appellate Court has rightly held that the suit was barred under Order II Rule 2 of the Code of Civil Procedure.
8. In the facts and circumstances of the case, reliance placed upon by learned advocate appearing on behalf of the appellant upon the decision of the Patna High Court in the case of Mukha Singh and others (supra), the same would not be of any assistance to the appellant as such it is required to be noted that in the case before Patna High Court, the earlier suit for declaration of title and confirmation of possession is dismissed for default and second suit for partition and whether second suit is barred or not under Order II Rule 2 of the Code of Civil Procedure, to that Patna High Court has held that fresh suit is not barred. Considering the aforesaid facts and circumstances of the present case, the aforesaid decision would not be of any assistance to the appellant herein - original plaintiff.
9. In view of the above, there is no substance in the present Second Appeal and the same deserves to be dismissed and is accordingly dismissed.
[M.R.SHAH,J] *dipti Top