MANU/MH/0608/2009

Equivalent Citation: 2009(4)ALLMR884

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 142 of 1989
Decided On: 03.07.2009
Appellants: Yamunabai Purushottam Deogirikar and Ors.
Vs.
Respondent: Mathurabai Nilkanth Choudhari and Ors.
Hon'ble Judges/Coram:
V.R. Kingaonkar, J.
Counsels:
For Appellant/Petitioner/Plaintiff: R.N. Dhorde and R.L. Kute, Advs.
For Respondents/Defendant: P.M. Shah, Sr. Counsel, i/b., Mukul Kulkarni, Adv. for
respondent Nos. 8, 9 and 11
Case Note:
Limitation - Time Barred Suit - Articles 59 and 109 of Limitation Act, 1963 -
Whether suit is barred by limitation? - Held, transfers have not been challenged
within period of limitation in view of Article 109 of Act - Contention of plaintiffs is
that sale deed executed in favour of defendant No. 2 is vitiated by fraud -
Assuming that suit is covered by Article 59 of Act, then also, it is barred by
limitation - Suit filed by plaintiffs is barred by limitation in as much as setting
aside sale transactions is sought after period of three years from date of
transaction and that relief of possession is claimed after twelve years of delivery
of possession to contesting defendants in respect of suit lands - Hence, suit was
barred by limitation Civil - Res Judicata - Omission to Seek Relief in Earlier Suit -
Order II Rule 2 of Code of Civil Procedure, 1908 (CPC) - Whether first Appellate
Court committed patent error while holding that suit was barred by principle of
'res judicata' and whether suit is untenable in view of Order II Rule 2 of CPC and
could be dismissed without any specific pleadings raised by defendants? - Held,
omission to sue for one of several reliefs, arising out of same cause of action,
would create legal bar in filing second suit for relief which was omitted in earlier
suit - No leave was obtained in earlier suit and, therefore, subsequent suit cannot
be entertained - Failure of plaintiffs-appellants to seek declaration that sale deeds
were invalid in context of earlier suit, would bar them in raising such plea - They
omitted to seek relief for setting aside sale transactions - They omitted to
specifically seek alternative relief of partition - Object of Order II Rule 2 of CPC is
to prevent plaintiff from vexing defendant again and again in multiple proceedings
on basis of assumptive division of cause of action - It also prohibits plaintiff from
suing separately for each relief arising out of same cause of action - Intention of
legislature is to discourage multiplicity of litigation on basis of same cause of
action - Thus, it is explicit that same cause of action cannot be permitted to be
minced and multiple suits cannot be allowed when identity of cause of action is
same - Omission of deceased plaintiff to seek above referred reliefs in earlier suit
would, therefore, operate as 'bar' as enumerated under Order II Rule 2 of CPC -
Hence, first Appellate Court rightly came to conclusion that suit was barred by
principle of 'res judicata' and also in view of omission to seek same reliefs under
Order II Rule 2 of CPC in earlier round of litigation - Appeal dismissed accordingly
JUDGMENT
V.R. Kingaonkar, J.
1 . Challenge in this appeal is to judgement and order rendered by 3rd Additional District

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Judge, Ahmednagar, in Regular Civil Appeal No. 350 of 1985 whereby and whereunder
judgement of dismissal of suit (R.C.S. No. 270/1978) by the Civil Judge (J.D.), Newasa,
came to be reversed. The trial Court decreed the suit whereas the first Appellate Court
dismissed the same.
2 . The litigation has a chequered history. The parties litigated in various proceedings and
some of the suits and proceedings are still pending. The initial disputes sparked off in the
early months of 1968.
3. The following pedigree table is uncontroverted.

4 . The property in dispute comprises of three (3) agricultural lands bearing Gat No. 136,
admeasuring 10 hectares 19 Ares, called 'bandhani', Gat No. 138, admeasuring 3 hectares 24
Ares, called 'belacha mala' and 'pandhari' and Gat No. 139, admeasuring 1 hectare 17 Ares,
called 'kapili'. These lands are situated at village Najik Chincholi under Newasa Tahsil,
District Ahmednagar. The land Gat No. 138 is consolidated after amalgamation of old survey
Nos. 51 and 50 called 'belacha mala' and 'pandhari', respectively. Land Gat No. 139 is
consolidated from old survey No. 71 called 'kapili' and land Gat No. 136 is consolidated from
old survey No. 52/A called 'bandhani'. These lands would be referred to hereinafter as the
suit land No. I, II and III, respectively.
5 . Indisputably, the suit lands were originally held by deceased Govindappacharya as his
ancestral properties. The appellants are original plaintiffs of the suit (R.C.S. No. 270/1978.
They are the members of the branch of deceased Purushottam, who was adoptive son of
Govindappacharya and Yamunabai. The members of branch of predeceased son of deceased
Govindappacharya, namely, Ramchandra were the original defendants No. 1 and 2 in the suit.
The remaining respondents are subsequent purchasers of some of the suit properties.
6 . Briefly stated, the plaintiffs' case before the trial Court was that deceased Purushottam
was the sole surviving coparcener of the Hindu joint family after demise of
Govindappacharya. He acquired all the rights and became exclusive owner of the suit lands
No. I to III. In his old age, deceased Govindappacharya was allured by the defendants No. 1
and 2 to stay with them. He was blind and feeble due to the oldage. The defendants No. 1
and 2 took undue advantage of the physical and mental disability of Govindappacharya and
got the suit lands No. I to III transferred in name of Nilkanth i.e. Defendant No. 2.
Somewhere after death of Govindappacharya, a notice was received by them (plaintiffs) on
an application filed by the defendants No. 1 and 2 to obtain probate in respect of the suit
lands No. I to III. Therefore, plaintiff Purushottam inquired as to how the transfer was
effected. He noticed that by playing fraud, the defendants No. 1 and 2 had obtained a

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registered sale deed dated 07-05-1957 from deceased Govindappacharya. That sale deed was
without consideration and purportedly in respect of land bearing survey No. 52A (Gat No.
136). He also learnt that another sale deed dated 17-05-1959 was obtained in name of
defendant No. 2 Nilkanth from deceased Yamunabai without payment of any consideration.
The defendant No. 2 - Nilkanth later on executed sale deed dated 04-04-1960 in respect of a
part of the suit land bearing Survey No. 71 and Survey No. 52 i.e. Gat No. 139 and Gat No.
136 in favour of defendant No. 4. The predecessor in title of the plaintiffs, namely,
Purushottam had filed the suit (Spl.C.S. No. 28/1968) for injunction and recovery of the suit
lands No. I to III. He claimed possession in respect of lands Gat Nos. 138 and 139 which
were allegedly transferred.
7 . The parties to the earlier suit bearing Spl.C.S. No. 28/1968 litigated for quite a longer
period. The Spl.C.S. No. 28/1968 was dismissed by the learned Civil Judge (S.D.),
Ahmednagar. An appeal was preferred by the deceased plaintiff of that suit (R.C.A. No.
87/1970). This Court dismissed the first appeal. In the meanwhile, said Purushottam died on
1st February, 1976 and his legal heirs were substituted as appellants. The appeal was
dismissed by this Court on various grounds including the fact that sale transactions referred
to in the plaint of the earlier suit were not specifically challenged and there was no prayer for
cancellation of the said sale deed or setting aside the sale transaction. After dismissal of the
said appeal, on 23-11-1977, by an elaborate judgement of this Court, the next suit (R.C.S.
No. 270/1978) was filed by the plaintiffs/appellants herein.
8 . Initially, the suit was filed only against original defendants No. 1 and 2. The plaintiffs
sought specific declaration that the sale deeds executed in favour of defendant No. 2 Nilkanth
were not binding on their rights and were outcome of fraud played on deceased
Govindappacharya. They also claimed for possession of the suit lands No. I to III.
9 . Original defendant No. 3 Maroti asserted that he had purchased a part of the suit land
which originally bore survey No. 50 and survey No. 51 from defendant No. 2 Nilkanth vide
sale deed dated 24th April, 1960. The defendant No. 8 Mahadu staked claim for land which
he had purchased being a part of survey No. 51, from defendant No. 1 Yamunabai vide sale
deed dated 4th April, 1960. He submitted that he sold the said land to defendant No. 9 Smt.
Vithabai. The plaint was amended on 1st November, 1983 with new prayers for declaration
that the subsequent transfers were not binding on the (plaintiffs). The plaintiff further
submitted that the sale deeds executed in favour of defendant No. 2 Nilkanth and others were
against the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short,
"the BT&AL Act"). The plaintiffs, therefore, asserted that they were owners of the suit lands
No. I to III and were entitled to receive the possession because the subsequent transfers also
are invalid.
10. The defendants No. 1 and 2 resisted suit by their written statement (Exh15). They denied
that they allured deceased Govindappacharya to reside with them. They also denied that
taking undue advantage of the mental and physical disability of Govindappacharya, his
oldage and other circumstances, the sale deeds were brought about by them. They submitted
that deceased Govindappacharya had executed a willdeed on 30-06-1963 and also
Yamunabai had executed a sale deed on 19-10-1961 in their favour. They contended that the
findings rendered by the Civil Court in previous suit viz. Spl.C.S. No. 28/1968 are binding on
the plaintiffs. They asserted that the suit is barred by principle of res judicata in as much as
lis in the earlier suit and the present suit is the same, the parties are same and the earlier
findings attained finality when this Court dismissed the first appeal. They also submitted that
the suit lands No. I to III were in possession of defendant No. 2 Nilkanth on basis of a
leasedeed executed by deceased Govindappacharya. They further contended that the suit was
barred under Order II Rule 2 of the Civil Procedure Code because the claim for declaration
was not put forth in the earlier suit though it could have been done. They further submitted
that the suit is barred by limitation. According to the defendant No. 2 - Nilkanth, he was
previously tenant of the deceased Govindappacharya in respect of the suit lands No. I to III.
He also asserted that he became statutory owner in view of Section 32M of the BT&AL Act
and, therefore, the civil Court has no jurisdiction to determine validity of the tenancy rights
and the sale deeds. On such premises, they sought dismissal of the suit.

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11. Original defendants No. 3 to 7, 10 and 12 did not participate in the suit proceedings.
They were set ex parte.
12. Original defendants No. 8, 9 and 11 filed filed their common written statement (Exh53).
They submitted that they are the bonafide purchasers. They submitted that they had no
notice about the claim of the plaintiffs and, therefore, they are purchasers without notice.
They further pleaded that they have carried out improvements in the purchased suit lands
and for such purpose, have incurred expenses of Rs. Three (3) lacs. Consequently, they too
sought dismissal of the suit.
13. The parties went to trial over the issues settled below Exh21 by the trial Court. They
adduced voluminous evidence in support of their contentions. The learned trial Judge held
that Govindappacharya was blind and suffered from senility and, therefore, defendant No. 2
Nilkanth took undue advantage of the situation and got the sale deeds executed in his favour.
The learned trial Judge further held that the suit lands No. I to III were not leased out to
defendant No. 2 Nilkanth by Govindappacharya and, therefore, he cannot claim statutory
ownership rights under the provisions of the BT&AL Act. The learned trial Judge further held
that the suit was not barred by principle of res judicata. Hence, the suit was decreed. The
first Appellate Court, however, held that the suit was barred by principle of res judicata
because the earlier suit filed by deceased Purushottam pertained to the same property and
issues involved therein were identical to the lis in the present suit. The learned Additional
District Judge came to the conclusion that the suit was barred by limitation. The findings
rendered by the learned Additional District Judge led to the reversal of the decree passed by
the trial Court.
14. Before I embark upon consideration of the rival submissions, let it be noted that this
second appeal was admitted by the following single line order.
Admit on grounds 5 & 6.
The then Hon'ble Judge (Patil, J.) did not separately formulate the substantial questions of
law. The substantial questions of law involved in this appeal may be redrafted and stated as
follows:
(i) Whether, in the facts and circumstances of the present case, the first Appellate
Court committed patent error while holding that the sale deeds dated 07-05-1957,
04-04-1966, 20-08-1982 and 10-02-1983 were not illegal and void since they were
not hit by the provisions of Section 23 of the Indian Contract Act?
(ii) Whether, in the facts and circumstances of the present case, the first Appellate
Court committed patent error while holding that the suit was barred by principle of
'res judicata'?
(iii) Whether the suit is untenable in view of Order II Rule 2 of the Civil Procedure
Code and could be dismissed without any specific pleadings raised by the
respondents ?
(iv) Whether the suit is barred by limitation ?
It may be mentioned here that I have formulated some of the additional substantial questions
of law in view of Sub-section (5) of Section 100 of the Code of Civil Procedure in order to
curtail any further litigation on these questions.
15. Heard learned Counsel for the parties.
16. The findings of facts rendered by the first Appellate Court need not be disturbed. There
appears no perversity committed by the first Appellate Court while appreciating evidence of
the parties. Some of the facts like ownership of deceased Govindappacharya, adoption of
deceased Purushottam on 08-04-1940 by Govindappacharya and his wife Yamunabai, etc. are
uncontroverted. It is explicit that after the death of Yamunabai in the year 1963 and death of
Purushottam in the year 1966, Govindappacharya was survived by the plaintiffs No. 1 to 4

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who are claiming through said Purushottam and the defendant No. 2 who is claiming through
deceased Ramchandra, the natural predeceased son of deceased Govindappacharya.
17. Mr. Dhorde R.N. Would submit that the first Appellate Court did not frame any point
regarding bar of the suit under Order II Rule 2 of the Civil Procedure Code and, therefore,
finding on this point is perverse. He would point out that no such issue was framed during
the trial. Nor such an issue was raised before the first Appellate Court. He contended that
deceased Purushottam was atleast entitled to claim half share in the joint Hindu family
property and, therefore, the dismissal of the earlier suit filed by him (plaintiff) would not
operate as res judicata when he subsequently staked the claim for possession. He contended
that the suit ought to have been decreed atleast to the extent of half share of the plaintiffs
and partition decree could have been granted. It is contended that limitation would be
available in view of Article 109 of the Limitation Act. It is further submitted that the time
spent in litigating the earlier suit upto the High Court could be exempted for operation of law
of limitation. Reliance is placed on "Union of India and Ors. v. West Coast Paper Mills Ltd.
and Anr. (III)" MANU/SC/0191/2004 : 2004 (3) SCC 458. Mr. Dhorde would submit that the
appeal deserves to be allowed with directions to atleast give partition decree to the extent of
half share of deceased Purushottam in the suit lands No. I to III. He pointed out that the
subsequently, purchasers entered into the transactions during pendency of the suit and as
such, the inter vivos transfers amongst the defendants are not binding on the rights of the
plaintiffs. Mr. Dhorde, therefore, urged to allow the appeal. As against this, Mr. Shah P.M.,
learned Senior Counsel, supports the impugned judgement.
18. On perusal of the copy of plaint in the earlier suit (Spl.C.S. No. 28/1968), it is amply
clear that the sale deeds executed by deceased Govindappacharya were challenged on the
ground of fraud, undue influence and his disability to effect the transfers. So also, a willdeed
dated 20-05-1954 and subsequent willdeed dated 20-06-1963 executed by deceased
Govindappacharya in favour of defendant No. 1 Mathurabai was challenged. There was no
prayer for setting aside the alienations effected by Govindappacharya and declaration that the
willdeed dated 19-10-1961 was invalid. When the earlier suit was finally decided by this
Court in first appeal No. 87 of 1970, the Hon'ble Division Bench rejected the contention that
the suit was not maintainable due to absence of any prayer for setting aside the transactions.
This Court observed that it was necessary for the deceased plaintiff - Purushottam to file suit
for general partition. The simple suit for recovery of possession without any prayer for
declaration of the nature of transaction was held to be improper. This Court observed:
34. If a suit for partition was brought by the plaintiff the purchasers defendant Nos.
2 to 4 could have claimed equity in allotting the properties in their possession to the
share of defendant No. 1 and they would be denied the equity in a simple suit for
possession, which the plaintiff brought in this case. In these circumstances, it is not
possible to allow the plaintiff to amend the plaint, so as to seek relief of partition
and possession also in respect thereof, which even Mr. Sathe has not asked before
this Court.
3 5 . The learned Judge has observed, rightly, in para 28 of his judgement, as
follows:
The plaintiff bases his claim on the footing that Govindacharya was a
coparcener of a joint family consisting of himself and Govindacharya.
According to the plaintiff Govindcharya passed a sale deed in respect of
certain family lands in favour of Defendant No. 2 and Defendant No. 2 in
turn executed sale deeds in regard to those land in favour of defendant Nos.
3 and 4. Even according to the allegations in the plaint Govindacharya was
not a stranger in respect of the family lands. He had an undivided share in
those lands. The plaintiff himself has averred in the plaint that the sale
deeds are without consideration, hollow and not binding upon him. It is to
be noted that plaintiff does not treat them as void documents right from
their very inception. Under the circumstances, it was necessary for the
plaintiff to get the sale deeds avoided before he would get the reliefs sought
by him in the prayer clause. It is no doubt true that the plaintiff has in form

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 framed the suit as one for injunction in respect of some of the lands and one
for possession in respect of other lands. But the suit is in substance a suit to
set aside the sale deeds in favour of Defendant Nos. 2, 3 and 4. The
substance of the pleading will have to be looked into in coming to the
conclusion whether the plaintiff can bring this suit without making a prayer
to set aside the sale deeds in favour of defendant Nos. 2, 3 and 4, which he
has himself referred in the plaint.
19. The Hon'ble Division Bench thus confirmed dismissal of the previous suit (Spl C.S. No.
28/1968). While considering the question of limitation, it cannot be lost sight of the fact that
the cause of action to challenge the sale transactions or willdeed executed by
Govindappacharya was available to deceased Purushottam when the said documents were
executed by deceased Govindappacharya. In the lifetime of Govindappacharya, deceased
Purushottam did not raise any voice. The sale deeds dated 07-05-1957 (Exh97) and 07-05-
1959 purport to show that original land survey Nos. 52A, 71 and 50 were transferred in
favour of defendant No. 2 Nilkanth by deceased Govindappacharya. It cannot be overlooked
that defendant No. 2 Nilkanth was the natural grandson of deceased Govindappacharya. It is
but natural that deceased Govindappacharya was having love and affection towards the
latter. The willdeed was said to have been executed on 20-05-1954 and subsequent willdeed
was executed by Govindappacharya on 20-06-1963 in name of defendant No. 1 Mathurabai.
Thus, the alleged invalidity of these documents was within knowledge of deceased Plaintiff
Purushottam since atleast the year 1963 or at the most, somewhere immediately before filing
of the earlier suit (Spl. C.S. No. 28/1968). The limitation period started running from date of
the transactions. In other words, the suit ought to have been filed within period of twelve
(12) years from date of the first transaction dated 07-05-1957 or for that matter, from June,
1963. This limitation period could be available only if Article 109 and Section 14 of the
Limitation Act conjointly are held as applicable. Otherwise if Article 59 of the Limitation Act
is to be applied, then the suit could not have been entertained because it was not filed within
the stipulated timeframe. date of the willdeed which was executed on 20th .
20. Mr. Dhorde submits that when the present suit (R.C.S. No. 270/1978) was filed on 4th
September, 1978, the period of limitation was available in view of Section 14 of the
Limitation Act. The previous suit was dismissed because no declaration was sought in respect
of invalidity of the sale transactions or the willdeed, but subsequently, the defect is cured by
filing the present suit (R.C.S. No. 270/1968). It is argued, therefore, that the period of
litigation in the earlier suit is required to be excluded for the purpose of limitation in view of
Section 14 of the Limitation Act. Heavy reliance is placed on certain observations in "Union
of India and Ors. v. West Coast Paper Mills Ltd. and Anr. (III)" MANU/SC/0191/2004 :
(2004) 3 SCC 458 and "India Electric Works Ltd. v. James Mantosh and Anr."
MANU/SC/0379/1970 : AIR 1971 S.C. 2313.
21. In "India Electric Works Ltd.' (supra), it has been observed that the expression "or other
cause of like nature" as used in Section 14 of the Limitation Act must be construed liberally.
It has been held that where the second suit was filed for damages for period subsequent to
the claim in the earlier suit, the period of pendency of the first suit could be excluded in view
of Section 14. The fact situation in the said case is on different footings from the fact
situation obtained in the present case. In "Union of India and others" (supra), it has been
observed that Section 14 of the Limitation Act is wide enough to cover such cases where the
defects are not merely jurisdictional strictly so called, but others more or less neighbours to
such deficiencies. Any circumstance, legal or factual, which inhibits entertainment or
consideration by the court of the dispute on the merits comes within the scope of the section
and a liberal touch must inform the interpretation of the Limitation Act which deprives the
remedy of one who has a right. These are general observations made by the Hon'ble Bench in
the given case. It is true that liberal construction of the expression "other causes of like
nature" is required to be made. The Apex Court in above referred dictum categorically
observed that the expression is wide enough to cover not only jurisdictional defects of the
earlier suit/proceedings, but also other defects which were "more or less neighbour to such
deficiencies". This rider put by the Apex Court is significant. In my humble opinion, the
expression "other cause of like nature" does imply that some semblance with the defect of
jurisdiction or such technical defect must be shown. A Division Bench of the Apex Court in

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"Zafar Khan and Ors. v. Board of Revenue, U.P. and Ors." MANU/SC/0251/1984 : AIR 1985
S.C. 39, observed:
In order to attract the application of Section 14(1), the parties seeking its benefit
must satisfy the Court that : (1) that the party as the plaintiff was prosecuting
another civil proceeding with due diligence; (ii) that the earlier proceeding and the
later proceeding relate to the same matter in issue and (iii) the former proceeding
was being prosecuted in good faith in a Court which, from defect of jurisdiction or
other cause of a like nature, is unable to entertain it. It may be assumed that the
earlier proceeding under Section 144 of the Code of Civil Procedure was a civil
proceeding for the purpose of Section 14. It may as well be assumed in favour of the
appellants that they were prosecuting the same with due diligence and in good faith,
as they relentlessly carried the proceeding up to the High Court invoking its
extraordinary jurisdiction. The first of the aforementioned three cumulative
conditions can be said to have been satisfied.
2 2 . Needless to say, the three (3) conditions which a party is required to satisfy would
include belief of a party that the litigation in the Court which did not possess jurisdiction,
was being prosecuted appropriately. The fact that the sale transactions and the willdeed was
not challenged specifically by seeking cancellation of the said documents in the earlier suit is
not an act done in good faith. The deceased plaintiff Purushottam had knowledge that validity
of the documents was required to be challenged and the transactions were required to be set
aside. There is no scintilla of evidence to attribute good faith to deceased plaintiff
Purushottam for his omission to pray for declaration about invalidity of the documents which
he knew to be invalid as per his own contentions. The parties to the earlier litigation were
same in the sense that the present plaintiffs (appellants) are claiming through deceased
plaintiff Purushottam and that there was no defect of jurisdiction of the civil Court or like
defect which would enure to the benefit of the plaintiffs so as to seek exclusion of the period
spent in the earlier litigation. Mr. Shah invited my attention to observations in "Amitab
Chaudhary v. District Judge, Allahabad and Anr." MANU/UP/0121/1985 : AIR 1985 Allahabad
7, wherein it is held that when the earlier proceedings were dismissed on merits, benefit of
Section 14 of the Limitation Act cannot be given. It has been further observed that the
expression "or other cause of like nature" needs to be construed in ejusdem generis as the
words which precede them. In this view of the matter, the declaration sought by the plaintiffs
that the sale deed dated 07-05-1957 executed by Govindappacharya and Yamunabai in
favour of defendant No. 2 Nilkanth and the other sale deeds are illegal and void, would be
clearly barred by limitation even though Article 109 of the Limitation Act is held applicable to
the fact situation of the present case.
23. True, the defendants did not raise specific plea regarding bar of OrderII Rule 2 of the
Civil Procedure Code and no such point was raised for consideration by the first Appellate
Court. Still, however, it may be gathered that such a legal question is considered by the first
Appellate Court and it has been held that omission of the plaintiffs to sue for setting aside of
the sale transaction in the earlier suit would create legal embargo in the present suit. The bar
of the second suit for the relief which was not sought in the previous suit and which could
have been sought, is purely a legal question. Though no such point was specifically raised by
the first Appellate Court, yet, such question seems to have been argued and considered. It
appears that such a legal question was taken into consideration while deciding the question
pertaining to bar of res judicata.
24. In this context, it would not be out of place to refer the effect of Sub-clause (3) of Rule
2 of Order II of the Civil Procedure Code. It reads as follows:
2. Suit to include the whole claim
(1)*****
(2)*****
(3) Omission to sue for one of several reliefs. A person entitled to more than one
relief in respect of the same cause of action may sue for all or any of such reliefs,

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 but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall
not afterwards sue for any relief so omitted.
Explanation - For the purposes of this rule an obligation and a collateral security for
its performance and successive claims arising under the same obligation shall be
deemed respectively to constitute but one cause of action.
25. The omission to sue for one of the several reliefs, arising out of the same cause of
action, would, therefore, create legal bar in filing second suit for the relief which was omitted
in the earlier suit. If the plaintiff (Purushottam) had reserved his right to sue for declaratory
relief or for relief of partition in the earlier suit, then his subsequent suit or the subsequent
suit filed by the present plaintiffs could not be treated as barred. No leave was obtained in
the earlier suit and, therefore, the subsequent suit cannot be entertained. In "Kunjan Nair
Sivaraman Nair v. Narayanan Nair and Ors." MANU/SC/0101/2004 : (2004) 3 SCC 277, the
Apex Court held that such bar would be attracted when the relief which ought to have been
asked for in the earlier suit on the same cause of action, was not sought by the plaintiff and
the second suit was filed for the same relief which was omitted earlier.
2 6 . Mr. Dhorde invited my attention to "Dalip Singh v. Mehar Singh Rathee and Ors." :
(2004) 7 SCC 650. The Apex Court, in the above matter, held that the Court has to ascertain
whether cause of action of previous suit and subsequent suit was identical. It has been held
that in absence of proof of identity of cause of action and pleadings, such plea cannot be
permitted to be raised. In the context of present case, it may be said that the cause of action
for the earlier suit (Spl.C.S. No. 28/1968), as well as the cause of action for the present suit
is identical and, therefore, the observations in above mentioned matter, with great respects,
are not applicable to the fact situation of the present case.
27. In "Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and Anr. 2008 AIR
SCW 3324, the Apex Court considered the plea of res judicata and provisions of Order II Rule
2 of the Civil Procedure Code. The Apex Court held that where suit for permanent injunction
based on legal entitlement to 'Gaddi' of Math was dismissed and the dismissal was upheld by
the Supreme Court, mere observations that the plaintiff may sue for possession would not
prevent the Court from dismissing the suit for possession as barred by res judicata. The Apex
Court approved the view taken in "Shiv Kumar Sharma v. Santosh Kumari"
MANU/SC/7929/2007 : (2007) 8 SCC 600, wherein it was observed:
21. If the respondent intended to claim damages and/or mesne profit, in view of
Order 2, Rule 2 of the Code itself, he could have done so, but he chose not to do so.
For one reason or the other, he, therefore, had full knowledge about his right.
Having omitted to make any claim for damages, in our opinion, the plaintiff cannot
be permitted to get the same indirectly.
22. Law in this behalf is absolutely clear. What cannot be done directly cannot be
done indirectly.
28. The dictum in "Dadu Dayalu Mahasabha, Jaipur (Trust)" (supra) may be usefully referred
while considering the plea of res judicata. The Apex Court seems to have intertwined the
provisions of Order II Rule 2 of the Civil Procedure Code and Section 11 Explanation V of the
Civil Procedure Code. It is observed that Explanation V of the Civil Procedure Code explains
the principle of res judicata stating that the relief which could have been or ought to have
been prayed for, even if it was not prayed for, would operate as res judicata. Section 12
thereof bans filing of such a suit at instance of a person who is found to be otherwise bound
by the decision of the earlier litigation and in a case where the principle of res judicata shall
apply.
29. Some times, the doctrine of "res judicata" is considered as a branch of law of estoppel.
There is distinction between doctrine of 'res judicata', principle of 'issue estoppel' and 'rule of
estoppel' under Section 115 of the Evidence Act. Doctrine of res judicata creates legal
embargo on hands of the Court to a judicial determination of deciding the same question
over again even though the earlier determination may be demonstratedly erroneous. When
the proceedings between the same parties have attained finality, they are bound by the

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judgement and cannot be permitted to reagitate the same lis. The determination of the issue
in the same set of facts in the previous lis between the parties would give rise to an issue
estoppel. It operates in any subsequent proceedings between the same parties. The doctrine
of res judicata is based on rule of procedure. However, the doctrine of mere estoppel is
based on rule of evidence. In case of estoppel under section 115 of the Evidence Act, there is
embargo on the party to plead or prove a particular fact whereas in case of res judicata, the
prohibition is operative against the Court to deal with the same kind of issue again and
again.
30. It is well settled that the doctrine of res judicata would be attracted when following
ingredients are fulfilled:
(i) Matter in issue must be directly and substantially in issue in the form of issue;
(ii) Parties must be same or they must be litigating for the same title;
(iii) The Court must be competent to try such subsequent suits; and
(iv) The earlier suit must be heard and finally decided.
3 1 . In "Bhanu Kumar Jain v. Archana Kumar and Anr." MANU/SC/1079/2004 : 2005 (2)
Mh.L.J. 839, the Apex Court considered the distinction between "issue estoppel" and "res
judicata". It is held:
29. There is a distinction between "issue estoppel" and "res judicata". (See Thoday
v. Thoday (1964) 1 All ER 341).
30. Res judicata debars a Court from exercising its jurisdiction to determine the lis if
it has attained finality between the parties whereas the doctrine issue estoppel is
invoked against the party. If such an issue is decided against him, he would be
estopped from raising the same in the latter proceeding. The doctrine of res judicata
creates a different kind of estoppel viz. Estoppel by accord.
31. In a case of this nature, however, the doctrine of "issue estoppel" as also "cause
of action estoppel" may arise. In Thoday (supra) Lord Diplock held:
...'cause of action estoppel', is that which prevents a party to an action from
asserting or denying, as against the other party, the existence of a particular
cause of action, the nonexistence or existence of which has been determined
by a Court of competent jurisdiction in previous litigation between the same
parties. If the cause of action was determined to exist i.e. Judgement was
given on it, it is said to be merged in the judgement.... If it was determined
not to exist, the unsuccessful plaintiff can no longer assert that it does; he is
estopped per rem judicatam.
32. The said dicta was followed in Barber v. Staffordshire County Council (1996) 2 All ER
748 (CA). A cause of action estoppel arises where in two different proceedings identical
issues are raised, in which event, the latter proceedings between the same parties shall be
dealt with similarly as was done in the previous proceedings. In such an event the bar is
absolute in relation to all points decided save and except allegation of fraud and collusion.
(See C. (A Minor) v. Hackney London Borough Council (1996) 1 All ER 973.
3 3 . One cannot be oblivious of the fact that in the earlier suit, deceased Purushottam,
through whom the present plaintiffs/appellants have been claiming their rights, had set up
claim in respect of the same properties involved in the present suit. He had sought
possession of the lands bearing Gat No. 138 and Gat No. 139. He had referred to fraud
played on deceased Govindappacharya in respect of the documents viz. sale deeds and the
willdeed, etc. He challenged the sale deeds dated 07-05-1957 executed by deceased
Govindappacharya and also the sale deed dated 07-05-1959 executed by Yamunabai in
favour of Nilkanth, who is defendant No. 2 herein. His earlier suit (Spl.C.S. No. 28/1968)
was dismissed on merits and the first appeal was also dismissed by this Court. Needless to

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say, he cannot be permitted to reagitate the same issues again and again. The same issues
could not be tried by the Court in the subsequent round of litigation. Therefore, the suit is
barred by principle of 'res judicata' and the first Appellate Court was right in giving such a
finding.
3 4 . Similarly, the failure of the appellants to seek declaration that the sale deeds were
invalid in the context of the earlier suit, would bar them in raising such plea. They omitted to
seek relief for setting aside the sale transactions. They omitted to specifically seek alternative
relief of partition. The object of Order II Rule 2 of the Civil Procedure Code is to prevent a
plaintiff from vexing the defendant again and again in multiple proceedings on basis of
assumptive division of a cause of action. It also prohibits the plaintiff from suing separately
for each relief arising out of the same cause of action. The intention of the legislature is to
discourage multiplicity of litigation on basis of same cause of action. Thus, it is explicit that
same cause of action cannot be permitted to be minced and multiple suits cannot be allowed
when the identity of the cause of action is same. The omission of deceased plaintiff
Purushottam to seek above referred reliefs in the earlier suit (Spl.C.S. No. 28/1968) would,
therefore, operate as 'bar' as enumerated under Order II Rule 2 of the Code of Civil
Procedure.
35. So far as the challenge to the sale deeds is concerned, even assuming that the issue
could be reagitated by the plaintiffs (appellants), then also it is difficult to hold that the
transactions are proved to be outcome of fraud or the same are against public policy or
otherwise tainted with illegality. The contention of the plaintiffs is that deceased
Govindappacharya was allured by the defendants to reside with them. There is nothing on
record to show that he resided with the defendants No. 1 and 2 and was under their
influence. It is an admitted fact that deceased Govindappacharya executed the registered sale
deed dated 07-05-1957 in respect of agricultural lands bearing Survey No. 52A, 71 and 50
vide Exh97 in favour of defendant No. 2 Nilkanth. The plaintiffs did not set out details of
alleged fraud and undue influence exercised by the defendants No. 1 and 2 on deceased
Govindappacharya. The plea of fraud cannot be allowed to be raised on basis of vague
allegations. The averment that Govindappacharya was helpless and was leaning towards
senility are not duly proved. This Court in "Kisan s/o Ramji Khandare v. Kausalyabai w/o
Gangaram Korde and Ors." 2007 (4) Mh.L.J. 43, held that mere sweeping allegations
regarding the fraud are of no avail to the plaintiffs. This Court emphasized that the fraud is
an intentional perversion of truth for the purpose of inducing another person to rely upon it
in order to part with some valuable thing. So, in view of Order VI Rule 4 of the Civil
Procedure Code, the necessary particulars of alleged "fraud" must be spelt out in the
pleadings.
36. There is hardly any evidence to infer that deceased Govindappacharya was unable to
understand purport of his act of executing the sale deed. The thumb impression of
Govindappacharya was obtained on the sale deed (Exh97) for the reason that his vision was
impaired at the material time. The SubRegistrar's endorsement on the sale deed has
presumptive value because such part is deemed as part of the public record. The Sub
Registrar has endorsed the sale deed to the effect that the executant admitted execution of
the sale deed. One cannot be oblivious of the fact that the allegations of fraud and undue
influence have been carved out many years after the execution of the sale deeds. The
findings of the first Appellate Court, in this behalf, upholding the correctness and validity of
the sale deeds, cannot be interfered with in the instant appeal.
37. It need not be reiterated that the transfers have not been challenged within the period of
limitation in view of Article 109 of the Limitation Act. The contention of the plaintiffs is that
the sale deed executed in favour of the defendant No. 2 is vitiated by fraud. Assuming that
the suit is covered by Article 59 of the Limitation Act, then also, it is barred by limitation. In
"Prem Singh and Ors. v. Birbal and Ors." MANU/SC/8139/2006 : 2006 (5) Mh.L.J. 441, the
Apex Court held that Article 59 of the Limitation Act encompasses within its fold fraudulent
transactions which are voidable transactions. The suit filed by the plaintiffs is barred by
limitation in as much as the setting aside the sale transactions is sought after period of three
(3) years from date of the transaction and that the relief of possession is claimed after twelve
(12) years of the delivery of possession to the contesting defendants in respect of the suit

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lands.
38. In my opinion, the first Appellate Court rightly came to the conclusion that the suit was
barred by limitation, barred by principle of 'res judicata' and also in view of omission to seek
the same reliefs under Order II Rule 2 of the Code of Civil Procedure in the earlier round of
litigation. The first Appellate Court rightly held that the transactions are not proved to be
invalid. In this view of the matter, there is no substance in the appeal. The second appeal is
accordingly dismissed. No costs.

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