JUDGMENT

Dalal, J C - One Abdul Ghafur at the time of his death in 1900 owned eight properties. He left as heirs three sons, three daughters and a widow and a sister who claimed that part of the property held by him was hers. The three sons divided the properties and subsequently suits were brought by the other claimants who obtained decrees jointly against the three brothers. There was every reason for confusion of the worst type specially as claims were made in the rotation of sehams according to Muhammadan Law and the shares in the Khewat were shown as divisions of a bigha. The remarkable mathematical calculations displayed by the plaintiff in the statement attached to the plaint indicate the very intricate nature of the puzzle. The three sons were Mohammad Muzammil, Asmat Ullah and Mohammad Ibrahim. In 1916 Mohammad Ibrahim sitting down to calculate his share discovered that the share entered in the khewat in his name was much less than what he was entitled to. He applied to the Revenue Court for correction of the Khewat of the eight properties making Mohammad Muzammil's successors-in-interest parties defendants to his application. A joint application was made by him and by Asmat Ullah. When the complication was so great the Revenue Court wisely directed that each brother should apply separately for every revenue-paying property.

2. This was done and Mohammad Ibrahim's several applications each relating to a separate property were dismissed on 11th August, 1916 on the ground that he should proceed in the Civil Court. On 23rd August, 1916 he brought a civil suit against the successors-in-interest of Mohammad Muzammil with respect to five out of the eight properties and obtained a decree. The present suit instituted on 3rd August, 1920 was for recovery of his deficient share in three of the properties making Asmat Ullah as well as the successors-in interest of Mohammad Muzammil, defendants to the suit. A decree was passed by the Court of first instance of the Subordinate Judge of Rai Bareli whereupon Asmat Ullah appealed to the District Judge by Appeal No. 108 of 1921 and the defendant Abdul Wahab on his own behalf and on behalf of four other defendants by Appeal No. 109 of 1921.

3. The learned District Judge decreed both the appeals on the one point that the suit of the plaintiff was barred by the provisions of Order 2, Rule 2, Civil Procedure Code.

4. The judgment of the lower Appellate Court is very vague and loses in value by want of repetition of the fact of the case in the judgment. I fail to understand how a suit can be barred against Asmat Ullah when he was no party to any previous suit. The learned Judge may have some reason for decreeing Asmat Ullah's appeal but that reason is not to be discovered by the help of provisions of Order 2, Rule 2.

5. Whatever cause of action the plaintiff may have against Asmat Ullah he has never before sued Asmat Ullah on that cause of action. So he had no occasion previously to include his present claim in any previous suit. What the rule says is "Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action" meaning thereby that a subsequent suit for a portion of the claim on the same cause of action will be barred. So, to create the bar, there should be two suits, one a previous suit and the other a subsequent suit. There was no previous suit against Asmat Ullah, which can bar the present suit by reason of the provisions of Order 2, Rule 2.

6. I agree that the suit is barred against the other defendants who, I am assured by the learned Counsel of both parties, are successors-in-interest of Mohammad Muzammil. It is true that the plaintiff bases his cause of action on the rejection of his application separately for every property by the Revenue Court. That, however, is not his real cause of action. He went to seek a remedy to a Court which had no jurisdiction and any order by that Court does not give him a fresh cause of action. He acquired a cause of action or causes of action when he received property at one time or different times after his father's death which was short of his legal share.

7. The cause of action or the causes of action had all arisen prior to 23rd August, 1916, when he instituted his former suit. He had taken advantage of every one of those causes of action in asking for the making up of his shortage in the five properties. It is certain that as regards the three other properties he had no separate causes of action. The deficiency occurred in every one of the eight properties at one and the same time whether the deficiency occurred once or at several times as separate suits were brought by the different claimants. The basis of his suit for the five properties was the same as the basis of his suit for the remaining three properties with respect to which he brought the present suit.

8. I would have come to a different conclusion if I had held that his cause of action arose because of the direction of the Revenue Court to seek his remedy in the Civil Court. Every application was separately dealt with and in such a case I would have held that he had a separate cause of action with respect to each property separately and he could bring a separate suit with respect to every property. This, however, is not the view I take of his cause of action. The Court must arrive at the actual cause of action, both for the purpose of limitation and for the bar under Order 2, Rule 2 and will not accept the cause of action which a plaintiff may choose to specify in his plaint. I have satisfied myself that the plaintiff has acquired no new cause of action, that is, there has been no fresh shuffle of properties, not contemplated in the previous suit, subsequent to 23rd August, 1916.

9. These being the circumstances, I hold that the plaintiff's suit against the defendants other than Asmat Ullah was barred by the provisions of Order 2, Rule 2. In the result I dismiss the appeal against the District Judge's decree in Appeal No. 109 of 1921. That appeal was rightly decreed by the District Judge.

10. As regards Appeal No. 108 of 1921 of the Court of the District Judge in which Asmat Ullah was appellant I set aside the decree of the District Judge and direct that Court to try the other grounds of appeal and pass a decree accordingly. This order is made under Order 41, Rule 23. Costs here and heretofore shall abide the result.

11. In Appeal No. 338 of 1922 the decree prepared shall be that the appeal is dismissed with costs. In Appeal No. 337 of 1922 the decree of the lower Appellate Court is set aside and the appeal remanded to it under Order 41, Rule 23 of the Code of Civil Procedure.