Holding

Order II Rule 2 does not apply because the two suits are based on different causes of action, and the decree for recovery of possession stands affirmed, with the compensation claim remitted for fresh adjudication.

Summary

The legal heirs (respondents) sued the appellant for declaration of title and possession of certain land; an earlier suit had only sought title and injunction. The appellant later filed a suit for recovery of possession and mesne profits, claiming he was a cultivating tenant and seeking compensation for improvements under the Kerala Compensation for Tenants Improvements Act, 1958. The trial court held that the two suits arose from different causes of action, so Order II Rule 2 of the CPC did not bar the later suit, and also held the appellant was not a tenant eligible for compensation. The High Court affirmed this view. On appeal, the Supreme Court examined whether the cause of action in the two suits was identical and whether the appellant could claim compensation under Section 2(d) of the Act. It held that the causes of action were distinct, so Order II Rule 2 was inapplicable, and affirmed the decree for possession. The question of compensation was remitted to the trial court for fresh determination. The appeal was partly allowed and dismissed in the rest.

Issues considered

Whether Order II Rule 2, sub‑rule 3 of the CPC applies to bar the second suit on the ground that it arises from the same cause of action as the earlier suit.
Whether the appellant qualifies as a "tenant" under Section 2(d) of the Kerala Compensation for Tenants Improvements Act, 1958 and is entitled to compensation for improvements made.
Interpretation and scope of the term "cause of action" for the purposes of Order II Rule 2 and res judicata.

Legislation cited

Code of Civil Procedure, 1908s. Order II Rule 2, s. Section 11
Kerala Compensation for Tenants Improvements Act, 1958s. Section 2(d)

Subjects

Order II Rule 2cause of actionres judicatatenancy compensationKerala Compensation Actpossessionmesne profitscivil procedureinjunctionlandlord‑tenant

Judgment

.·~

A KUNJAN NAIR SIVARAMAN NAIR
v.
NARAYANAN NAIR AND ORS.

FEBRUARY 6, 2004
B
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

Code of Civil Procedure, 1908; Order JI, Rule 2, sub-rule 3/Kerala
Compensation for Tenants Improvement Act, 1958; Section 2(d):

C Suit for declaration of right and title and issuance of injunction in
respect of certain property by the legal heirs-land Tribunal upheld the Tille,
however, injunction not issued as property was in possession of the appellant!
cultivating tenant-Suit for recove1y of possession and mesne profit-Trial
Court decreed the suit holding that since appellant was not a tenant, provision
D ofCompensation Act not attracted-Appeals dismissed by first appellate Court
and High Court-On appeal, Held: since cause of action in the earlier suit is
not the same as in the subsequent suit, Courts below rightly held that 0.11, R.2
had no application to the facts of the case-On the issue of compensation in
lieu of improvement made on the property by the appellant, mailer remitted
to Trial Court for adjudication afresh taking into consideration whether the
E appellant had acted in good faith or with bona fide belief of having lawful
possession ofthe disputed property and made improvement thereon-Directions
issued.

'Principle of res judicata vis-a-vis principle underlying 0.11, R.2-
Distinction between-Discussed.
F
Words and Phrases:

'cause of action'-Meaning of-Discussed

Legal maxims:

G Maxims "Interest reipublicae ut sit finis litium", "Res judicata pro
veritate accipitur" and "Nemo debet bis vexari pro una et eadem causa"-
Applicability of-Discussed.

Respondents, legal heirs, filed a suit for declaration of their right
and title to the properties in question and also their possession. Trial Court
H 202
K.N.S. NAIR v. N. NAIR 203
upheld the title but declined to issue injunction as property was in A
possession of defendant/appellant. Appeal against the .iudgment was also
dismissed. In the meanwhile, appellant filed an application before the Land
Tribunal for purchase of the Janam right claiming himself to be a
cultivating tenant but it was dismissed by the Tribunal. Appeal against
the said order was also dismissed.
B
Aggrieved, legal heirs/respondents filed a suit for recovery of
possession and mesne profit. Appellant resisted the suit claiming himself
to be co-owner of the property in dispute as the said property was given
to him by the original owner and since then he was in possession and
enjoyment of the property. Subsequently, his son constructed a building C
and also effected improvements on i.t and therefore entitled to get
compensation under the provisions of Kcrala Compensation for Tenants
Improvements Act. The suit was decreed by the Trial Court holding that
the earlier suit was one for mere title and injunction and the cause of action
was not the same as in the later suit. Hence, 0.11, R.2 CPC had no
application and since the appellant was tenant in terms of the provisions D
of the Act and no material regarding improvement in the property was
placed, he was not eligible to get compensation. Appeal against the order
of the Trial Court was dismissed by the Appellate Court and second appeal
was dismissed by the Single Judge of the High Court. Hence the present
appeal.
E
It was contended for the appellant that since cause of action in both
the suits was identical, 0.11, R.2 applicable; and that they were eligible to
get benefit in terms of Section 2(d) of the Act.

On behalf of the respondents, it was submitted that cause of action F
of the two suits were entirely different; and that the appellant was
ineligible to get benefits under the provisions of the Act.

Partly allowing the appeal, the Court

HELD: 1.1. Order II Rule 2 centers round one and the same cause G
of action. A mere look at the provisions shows that once the plaintiff comes.
to a Court of law for getting any redress basing his case on an existing
cause of action, he must include in his suit the whole claim pertaining to
that cause of action. But if he gives up a part of the claim based on the
said cause of action or omits to sue in connection with the same, then he
cannot subseque~tly resurrect the said claim based on the same cause of H ·
204 SUPREME COURT REPORTS (2004] 2 S.C.R.

A action. It must be shown by the defendants for supporting their plea of
bar of Order II, Rule 2, sub-rule (3) C.P.C. that the second suit of the
plaintiff is based on t~e same cause of action on which its earlier suit was
based and that because it had not prayed for any relief and it had not
obtained leave of the Court in that connection; it cannot sue for that relief
B in the second suit. The salutary rrinciple behind Order II, Rule 2 is that
a defendant or defendants should not be vexed time and again for the same
cause by splitting the claim and the reliefs for being indicated in successive \
litigations. It is, therefore, provided that the plaintiff must not abandon'
any·part of the claim without the leave of the Court and must claim the
whole relief or entire bundle of reliefs available to him in respect of that ... l
C very same cause of action. He will thereafter be precluded from so doing '
in any subsequent litigation that he may commence if he has not obtained \
the prior permission of the Court. 1208~8; 209-A-B; 210-E-FI

Gurbux Singh v. Bhooralal, 119641 7 SCR 831, followed.

D Bengal Waterprooflimited v. Bon_1bay Waterproof Manufacturing
Company and Anr., 11997) 1 SCC 99, relied on.

1.2. Section 11 C.P.C. contains the rule of conclusiveness of the
judgment which is based partly on the maxim of Roman Jurisprudence
"Interest reipublicae ut sit finis litium" (it' concerns the State that there be
E an end to law suits) and partly on the maxim "Nemo debet bis vexaripro
una at eadem causa" (no man should be vexed twice over for the same
cause). The Section .does not affect the jurisdiction of the Court but
operates as a bar to the trial of the suit or issue, if the matter in the suit
was directly and substantially in issue (and finally decided) in the previous
suit between the. same parties litigating under the same title in a Court,
F competent to try the subsequent suit in which such issue has been raised.
The doctrine of res judicata diffe;s from. the principle underlying Order
II Rule 2 in that the former places emphasis on the plaintiff's duty to
exhaust all a\'ailable grounds in support of his claim, while the latter
requires the plaintiff to claim all reliefs eman~ting from the same cause
G of action. Order II concerns framing of a suit and requires that the
plaintiff shall include whole of his claim in the framing of the suit. If he
relinquishes any claim to bring the suit within the jurisdiction of any
Court, he will not be entitled to that relief in any subsequent suit. Further
sub-rule (3) 9fRule 2, Order II C.P.C. provides that the person entitled
to more than one reliefs in respect of the same cause of action may sue
H for all or any of such reliefs; but if he omits, except with the leave of the
K.N.S. NAIR v. N. NAIR 205
Court, to sue for such relief he shall not afterwards be permitted to sue A
for relief so omitted. (211-B-C; 211-E-G I

Deva Ram and Anr. v, lshwar Chand and Anr., (1995) 6 SCC 733, relied
on.

1.3. The expression "cause of action" has acquired a juridically- B
settled meaning. In the restricted sense cause of action means the
circumstances forming the infraction of the right or the immediate
occasion for the action. In the wider sense, it means the necessary
conditions for the maintenance of the suit, including not only the infraction
of the right, but the infraction coupled with the right itself. Compendiously C
the expression means every fact which it would be necessary for the
plaintiff to prove, it traversed, in order to support his right to the
judgment of the Court. 1211-G-H; 212-AJ

Inacio Martins (deceased through Lrs.) v. Narayan Hari Naik and Ors.,
(1993) 3 SCC 123 and Deva Ram and Anr. v. lshwar Chand and Anr., [1995) D
6 sec 733, relied on.

Payana v. Pana Lana, (1914) 41 IA 142 and Mohammad Khalil Khan
v; Mahbub Ali Mia, AIR (1949) P.C. 78, referred to.

Halsbwy 's laws of England (Fourth Edition), referred to.
E
1.4. The Court is required to examine whether the prescriptions in
the different clauses individually or cumulatively have any application to
the claim of the appellant for improvements alleged to have been made,
if so really made. The Courts below have noted that the appellant made
a claim that he was a lessee and thereafter made the improvements. The F
Courts below do not appear to have considered the issues arising at.any
rate in respect of the claim for alleged improvements said to have been
from the aforesaid angle. As factual adjudication is necessary as to
whether appellant acted in good faith or with bona fide belief as envisaged,
it has to be decided taking into consideration the materials placed before
the Court in that regard. It is, therefore, appropriate that the Trial Court G
should consider this aspect afresh uninfluenced by any observation made
by it earlier or by the appellate courts. No opinion on the merit of the
claim is expressed except indicating the parameters relevant for such
consideration. For that limited purpose, the matter is remitted to the Trial
Court which shall make an endeavour to adjudicate the matter. However, H
206 SUPREME COURT REPORTS [2004) 2 S.C.R.

A the Courts below were justified in holding that Order II Rule 2 CPC had
no application to the facts of the case. Consequently, the decree passed in
favour of the plaintiffs for recovery of possession shall stand affirmed.
(214-E-H; 213-CI

CIVIL APPELLATE JURISDICTION Civil Appeal No. 838 of
B 2004.

From the Judgment and Order dated 17.12.2001 of the Kerala High
Court in S.A. No. 136 of 1991 (G).

P. Krishnamoorthy, Siby Sebastian and M.T. George for the Appellant.
c
T.L.V. Iyer, Gopalakrishan R., Abhay Kumar, S.N. Jha and
Subramonium Prasad for the Respondents.

The Judgment of the Court was delivered by

D ARJJJT PASAYAT, J. Leave granted.

Appellant questions correctness of judgment rendered by learned Single
Judge of the Kerala High Court which dismissed the Second Appeal filed
under Section JOO of the Code of Civil Procedure, 1908 (in short 'the Code').
E The appellant was defendant no. I in the suit for recovery of possession on
the stre'ngth of title, instituted by 7 persons as plaintiff seeking recovery of
possession. There were two defendants originally. As the first defendant died
di.Iring the pendency of the first appeal before the Principal Sub Judge,
Kottayam, his legal heirs were impleaded as. respondents 9 to 13.

F Case of the plaintiffs in nutshell was that the plaint schedule property
originally belonged to their deceased father. Narayanan Nair and his mother
Kunjupennamma on the basis ofa partition. On the death of mother, her right
also devolved on Narayanan Nair who died on August, 1975. The suit was
filed in Munsiffs Court, Palai on the ground that the plaintiffs are only legal
heirs and hence they had title over the plaint schedule property. Defendant
G no. I filed an application before the Land Tribunal, Palai to purchase the
jenmam right claiming to be cultivating tenant. The same was dismissed. An
appeal against the said order was also dismissed. The plaintiffs had earlier
filed OS 208/77 seeking a decree for declaration of right and title to the
plaint schedule property and their possession. Though their title was upheld
H but prayer. for injunction was rejected as possession was not found. Appeal
K.N.S. NAIR..,, N. NAIR [PASAYAT, J.] 207
...... against the judgment in question did not bring any relief. Subsequently, the A
suit to which the present dispute relates was filed claiming recovery of
possession with mesne profits. The appellant resisted the suit saying that he
was a co-owner, as Narayanan Nair was his uncle. Both Narayanan Nair and
his mother were looking after him and after the partition which took place
when he was very young, Narayanan Nair gave the plaint schedule property

- to him and since then he was in possession and in enjoyment of the propetty. B
Though the application before the Land Tribunal and the appeal were
dismissed, the rights obtained from Narayanan Nair and his mother remained
unaffected: Even if title of the plaintiffs has been found in the earlier suit that
was no longer in operation. It was further stated that his son is residing in
the property by constructing a building and effecting improvements and, c
therefore, he is entitled to get value of the building and the improvements.
Reference was made to the Kerala Compensation for Tenants Improvements

- Act, 1958 (in short 'the Compensation Act'). It was pointed out that the suit
was barred in terms of Order II Rule 2 of the Code. The Trial Court framed
3 issues revolving round the question regarding applicability of Order II Rule
2 of the Code, and entitlement for the improvements claimed to have been D
made. The Courts below had found that the first suit was one for mere title
and injunction, and the cause of action was not the same as that of the later
suit; therefore, Order II Rule 2 of the Code had no application. Similarly, it
was held that the provisions of Compensation Act had no application to the
facts of the case as there was no material regarding any improvement. In any E
event, the appellant was not a tenant as defined under the Compensation Act.

Mr. P. Krishnamoorthy, learned senior counsel appearing for the
'• appellant submitted that the conclusions of the Courts below are erroneous.
Cause of action for both the suit was identical. In any event, the plaintiffs in
the subsequent suit have claimed reliefs which were sought for in the earlier F
suit. To get the benefit of Section 2(d) of the Compensation Act the appellant
is clearly eligible and, therefore, the Courts belQw were not correct in rejecting
the stand.

In response, Mr. T.L.V. Iyer, learned senior counsel ap'pearing for the
respondents submitted that the High Court has recorded categorical findings G

.. regarding ineligibility of the appellant to get benefit under the Compensation
Act. Cause of action of the two suits were entirely different. The first one

-- was for confirmation of possession, and present is one for recovery of
possession. So, the High Court was justified in its conclusions about not
applicability of Order II Rule 2 of the Code. H
..
-
208 SUPREME COURT REPORTS [2004) 2 S.C.R.

A We shall first deal with the question regarding applicability of Order II
Rule 2 of the Code. Said provision lays down the general principle that suit
must include whole claim which the plaintiff is entitled to make in respect
of a cause of action, and if he does not do so then he is visited with the
consequences indicated therein. It provides that all reliefs arising out of the
B same cause of action shall be set out in one and the same suit, and further
prescribes the consequences if the plaintiff omits to do so. In other words
Order II Rule 2 centers round one and the same cause of action.

Order II Rule 2 with its sub rules and illustration reads as follows:

"2. Suit to include the whole claim. - (I) Every suit shall include the
c whole of the claim which the plaintiff is entitled to make in respect

..
of the cause of action; but a plaintiff may relinquish any portion of
his claim in order to bring the suit within the jurisdiction of ariy
Court.

(2) Relinquishment of part of claim. - Where a plaintiff omits to sue
D in respect of, or intentionally relinquishes, any portion of his claim,
he shall not afterwards sue in respect of the portion so omitted or
relinquished.

(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
E
for all or any of such reliefs; 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
F collateral security for its performance and successive claims arising
under the same obligation shall b~ deemed respectively to constitute
but one cause of action.

11 lustration

A lets a house to B at a yearly rent of Rs. 1200. The rent for the
G
whole of the years 1905, 1906 and_ 1907 is due and unpaid. A sues
B in 1.908 only for the rent due for 1906. A shall not afterwards sue
B for the rent due for 1905 or 1907."

-A mere Jook at the provisions shows that once the plaintiff comes to
H a court of law for getting any r~dress basing his case on an existing cause
K.N.S. NAIR v. N. NAIR [PASAYAT, J.] 209
of action, he must include in his suit the whole claim pertaining to that cause A
of action. But if he gives up a part of the claim based on the said cause of
action or omits to sue in connection with the same, then he cannot subsequeritly
resurrect the said claim based on the same cause of action. So far as sub-rule
(3) is concerned, before the second suit of the plaintiff can be held to be
barred by the same, it must be shown that the second suit is based on the B
same cause of action on which the earlier suit was based and ifthe cause of
action is the same in both the suits and if in the earlier suit plaintiff had not
sued for any of the reliefs available to it on the basis of that cause of action,
the reliefs which it had failed to press into service in that suit cannot be
subsequently prayed for except with the leave of the court. It must, therefore,
be shown by the defendants for supporting their plea of bar of Order II, Rule C
2, sub-rule (3) that the second suit of the plaintiff filed is based on the same
cause of action on which its earlier suit was based and that because it had not
prayed for any relief and it had not obtained leave of the court in that
connection, it cannot sue for that relief in the present second suit. A
Constitution Bench of this case of Gurbux Singh v. Bhooralal, [1964] 7 SCR D
831 in this connection has laid down as under:

"In order that a plea of a bar Order 2, Rule 2(3), Civil Procedure
Code should succeed the defendant who raises the plea must make
out (I) that the second suit was in respect of the same cause of action
as that on which the previous suit was based, (2) that in respect of E
that cause of action the plaintiff was entitled to more than one relief,
(3) that being thus entitled more than one relief the plaintiff, without
leave obtained from the Court, omitted to sue for the relief which the
second suit had been filed. From this analysis. it would be seen that
the defendant would have to establish primarily and to start with, the F
precise cause of action upon which the previous suit was filed, for
unless there is identity between the cause of action on which the
earlier suit was filed and that on which the claim in the later suit is
based there. would be no scope for the application of the bar. No
doubt, a relief which is sought in a plaint could ordinarily be traceable
to a particuiar cause of action but· this might, by no means, be the G
universal rule. As the plea is a technical bar it has to be established
satisfactorily and cannot be presumed merely on basis of inferential
reasoning. It is for this reason that we consider that a plea of a bar
under Order 2, Rule 2, Civil Procedure Code can be established only
if the defendant files in evidence the pleadings in the previous suit H
210 SUPREME COURT REPORTS [2004] 2 S.C.R.

A and thereby proves to the Court the identify of the cause of action in
the two suits. It is common that the pleadings in C.S. No. 28 of 1950
were not filed by the appellant in the present suit as evidence in
support of his plea under Order 2, Rule 2, Civil Procedure Code. The
learned trial Judge, however, without these pleadings bei11g on the
record inferred what the cause of action should have been from the
B
reference to the previous suit contained in the plaint as a matter of
deduction. At the stage of the appeal the learned District Judge noticed
this lacuna in the appellant's case and pointed out, in our opinion
rightly, that without the plaint in the previous suit being on the record,
a plea of a bar under Order 2, Rule 2, Civil Procedure Code was not
c maintainable."

The above position was again illuminatingly highlighted by this Court
in Bengal Waterproof limited v. Bombay Waterproof Manufacturing Company
and Anr., (1997) I SCC 99.

D Order II Rule 2, sub-rule (3) requires that the cause of action in the
earlier suit must be the same on which the subsequent suit is based. Therefore,
there must be identical cause of action in both the suits, to attract the bar of
Order II sub-rule (3).The illustrations given under the rule clearly brings out
this position. Above is the ambit and scope of the provision as highlighted
E in Gurbux Singh 's case, (supra) by the Constitution Bench and in Bengal
Waterproof Limited (supra). The salutary principle behind Order II Rule 2 is
that a defendant or defendants should not be vexed time and again for the
same cause by splitting the claim and the reliefs for being indicated in
successive litigations. It is, therefore, provided that the plaintiff must not
abandon any part of the claim without the leave llf the Court and must claim
F the whole relief or entire bundle of reliefs available to him in respect of that
very same cause of action. He will thereafter be precluded from so doing in
any subsequent litigation that he may commence if he has not obtained the
prior permission of the Court.

G Rule of res judicata is contained in Section I I of the Code. ·Bereft of
all its explanations, namely, Explanations I to VIII, Section 11 is quoted
below:

"11. Res judicata. - No court shall try any suit or issue in which the
matter directly and substantially in issue has been directly and
H substantially in issue in a former suit between the same parties, or
K.N.S. NAIR v. N. NAIR [PASAYAT. J.] 211

between parties under whom they or any of them claim, litigating A
under the same title, in a court competent to try such subsequent suit
or the suit in which such issue has been subsequently raise, and has
been heard and finally decided by such court."

"Res judicata pro veritate accipitur" is-the full maxim which has, over
the years, shrunk to mere "res judicata". B

Section 11 contains the rule of conclusiveness of the judgment which
is based partly on the maxim of Roman Jurisprudence "lnte.rest reipublicae
ut sit finis litium" (it concerns the State that there be an end to law suits) and
partly on the maxim "Nemo debet bis vexari pro una at eadem causa" (no C
man should be vexed twice over for the same cause). The section does not
affect the jurisdiction of the court but operates as a bar to the trial of the suit
or issue, if the matter in the suit was directly and substantially in issue (and
finally decided) in the previous suit between the same parties litigating under
the same title in a court, competent to try the subsequent suit in which such
issue has been raised. D
The above position was noted in Deva Ram and Anr v. lshwar Chand
and Anr., [ 1995] 6 SCC 733.

The doctrine of res judicata differs from the principle underlying Order E
11 Rule 2 in that the former places emphasis on the plaintiffs duty to exhaust
all available grounds in support of his claim, while the latter' requires the
plaintiff to claim all reliefs emanating from the same cause of action. Order
II concerns framing of a suit and requires that the plaintiffs shall include
whole of his claim in the framing of the suit. Sub-rule (1 ), inter alia, provides
that every suit shall include the whole of the claim which the plaintiff is F
entitled to make in respect of the very same cause of action. If he relinquishes
any claim to bring the suit within the jurisdiction of any Court, he will not
be entitled to that relief in any subsequent suit. Further sub-rule (3) provides
that the person entitled to more than one reliefs in respect of the same cause
of action may sue for all. or any of such reliefs; but if he omits, except with G
the leave of the Court, to sue for such relief he shall not be afterwards be
permitted to sue for relief so omitted.

The expression "cause of action" has acquired a judicially-settled
meaning. In the restricted sense cause of action means the circumstances
forming the infraction of the right or the immediate occasion for the action. H
212 SUPREME COURT REPORTS [2004] 2 S.C.R.

A In the wider sense, it means the necessary conditions for the maintenance of
the suit, including not only the infraction of the right, but the infraction
coupled with the right itself. Compendiously the expression means every fact
which it would be necessary for the plaintiff to prove, if traversed, in order
to support his right to the judgment of the Court. Every fact which is necessary
B to be proved, as distinguished from every piece of evidence which is necessary
to prove each fact, comprises in .''.cause of action".

In Halsbury's Laws of England (Fourth Edition) it has been stated as
follows:

c "'Cause of action' has been defined as meaning simply a factual
situation the existence of which entitles one person to obtain from the
Court a· rerriedy against another person. The phrase has been held
from earliest time to include every fact which is material to be proved
to entitle the plaintiff to succeed, and every fact which a defendant
would have a right to traverse. 'Cause of action' has also been taken
D to mean that particular act on the part of the defendant which gives
the plaintiff his cause of complaint, or the subject matter of grievance
founding the action, not merely the technical cause of action."

As observed by the Privy Council in Payano v. Pana Lana (1914) 41
E IA 142~ the rule is directed to securing the exhaustion of the relief in respect
of a cause of action and not to the inclusion in one and the same action or
different causes of action, even though th~y arise from the same trai1saction.
One great criterion is, when the question arises as to whether the cause of
action in the subsequent suit is identical with that in the first suit whether the
same evidence will maintain both actions. (See Mohammad Khalil Khan v.
F Mahbub Ali Mian, AIR (1949) P.C. 78.

In Inacio Martins (deceased through LRs.) v. Narayan Hari Naik and
Ors.. [1993] 3 SCC 123, an almost identical question arose. In that case, the
plaintiff had prayed for protection of his possession by a prohibitory injunction.
G That prayer was refused. Subsequent suit was for recovery of possession.
This Court held that in the former suit the only relief that the Court could
have granted was in regard to the declaration sought for which the Court
could not have granted In view of the provisions of Specific Relief Act. The
cause of action for the first suit was based on the apprehension about likely
forcible dispossession. The cause of action of the suit was not on the premise
H that he.had, in fact, been illegally and forcefully dispossessed and needed the
- K.N.S. NAIR v. N. NAIR [PASAYAT, J.] 213
Courts' assistance for restoration of possession. In that background this Court A
held that subsequent suit was based on a distinct cause of action not found
in or formed the subject matter of the former suit. The ratio of the decision
has full application to the facts of the present case.

In Deva Ram's case, (supra) it was held that where the previous suit
was for. recovery for loan which was dismissed on the ground that the document B
on the basis of which the suit was filed was not a sale deed but agreement
for sale, subsequent suit for recovery of possession on the basis of title was
not hit by Order II Rule 2 as the cause of action in the two suits were not
identical or one and the same.

The Courts below were, therefore, justified in holding that Order II C
Rule 2 of the Code had no application to the facts of the case. Consequently,
the decree passed in favour of the plaintiffs for recovery of possession shall
stand affinned and the appeal to that extent shall stand dismissed.

That brings us to the residual question about eligibility of the appellant D
to make a claim for compensation for the alleged improvements made. Section
2(d) of the Compensation Act reads as follows:-

"2(d): "Tenant"-"tenant" with its grammatical variations and cognate
expressions includes -

(i) a person who, as lessee, sub-lessee, m.ortgagee or sub-mortgagee E
or in good faith believing himself to be lessee, sub-lessee, mortgagee,
or sub-mortgagee of land, is in possession thereof.

(ii) a person who with the bona fide intention of attorning and paying
a reasonable rent to the person entitled to cultivate or let waste-land, F
but without the permission of such person, brings such land, under
cultivation and is in occupation thereof as cultivator; and

(iii) a person who comes into possession of land belonging to another
person and makes improvements thereon in the bona fide belief that
he is entitled to make such improvements."
G
It is to be noted that the three clauses of Section 2(d) use different
expressions to meet different situations and class of persons. While clause (i)
refers to a person who is a lessee or sub-lessee, or mortgagee or sub-mortgagee
or in "good faith" believing himself to be any one of the above such .persons,
clause (ii) deals with a person with "bona fide intention" by doing any one H
214 SUPREME COURT REPORTS [2004] 2 S.C.R.

A of the things enumerated is in occupation as cultivator, and clause (iii) deals
with a person who comes into possession of land belonging to another and
makes improvement thereon in the "bona jide belief' that he is entitled to
make such improvements. According to the appellant, both clauses (i) and
(iii) are applicable to him. Clause (i) deals with the person who bona fide
believes himself to be a Jessee in respect of land in question. The fact that
B he asserted a claim for purchase of jenmam rights, irrespective of the rejection
of the claim would go to show that at any rate he was believing in good faith
to be one such person viz., lessee. Clause (iii) encompasses a person who
come into possession of land belonging to another person and makes
improvements thereon with the bona fide belief that he is entitled to make
C such improvements. The appellant was claiming himself to have been put in
possession as the nephew of late Narayanan Nair, and as a person in such
possession - claims to have made certain improvements. Indisputably he was
in possession. Though, in view of the judgments of the Courts below his
claim to assert a title in him has been rejected and his possession cannot be
a lawful possession to deny the right of the real owner to recover possession
D or assert any adverse claim against the lawful owner to any longer squat on
the property-his initial induction or entering into possession cannot be said
to be by way of encroachment. Whether such a person could not claim to
have entertained a bona fide belief that he is entitled to make such
improvements has to be factually dete;mined with reference to the point of
E time as to when he really made such improvements. If the alleged
improvements are found to have been made after the disputes between parties
commenced then only it may not be in bona fide belief. Improvements made,
if any, even thereafter only cannot fall under clause (iii). The Court dealing
with the matter is required to examine the claim and find out whether the
prescriptions in the different clauses individually or cumulatively have any
F application to the claim of the appellant for improvements alleged to have
been made, if so really made. The Courts below have noted that the appellant
made a claim that he was a lessee and thereafter made the improvements. The
Courts below do not appear to have considered the issues arising at any rate
in respect of the claim for alleged improvements said to have been from
G aforesaid angle. As factual adjudication is necessary as to whether appellant
acted in good faith or with bona fide belief as envisaged, has to be decided
taking into consideration the materials placed before the Court in that regard.
It is, therefore, appropriate that the Trial Court should consider this aspect
afresh uninfluenced by any observation made by it earlier or by the Appellate
Courts. We also do no~ express any conclusive opinion on the merit of the
H claim except indicating the parameters relevant for such consideration. For
K.N.S. NAIR v. N. NAIR [PASA VAT. J.] 215
that limited purpose, the matter is remitted to the Trial Cou11 which shall A
make an endeavour to adjudicate the matter within six months from the date
of judgment, after allowing the par1ies to place material in support of their
respective stands.

The appeal is partly allowed to the extent indicated and in other respects
shall stand dismissed. Costs made easy. B
S.K.S. Appeal partly allowed.

_j