Hence it is seen that there are two causes of action upon
which the plaintiff has sued. They are in respect of the same property
and against the same party. The plaintiff can join those causes of
action to sue. The plaintiff could sue in respect of the initial cause of
action consequent upon the leave granted. The plaintiff could file any
other suit on any other cause of action within the period of limitation.
Hence the plaintiff could sue on the second cause of action even
without the leave. That is the inherent right of the plaintiff to sue in
civil court. That right is not barred.
Consequently the first right which would otherwise be
barred is saved by the leave granted upon the defect of jurisdiction.
The second right is not barred at all.
The chronology of the events and dates and the averments
in plaint, therefore, do not show that the suit is barred by the Law of
Limitation and the plaint, therefore, cannot be rejected on the ground
that the suit is barred by the Law of Limitation under Order 7 Rule
11(d) of the CPC. Hence prayer 'c' of the Notice of Motion is rejected.
18. It is also contended that this suit is filed upon the leave
granted in Suit No.1251 of 2007. This suit, however, extends further.
Leave has been granted obviously to sue on the same cause of action.
The cause of action in that suit was unauthorized construction and
encroachment outside the premises of defendant Nos.1 and 2 as also
the other occupants / tenants. This suit is filed on that cause of
action.
It is not contended that these two causes of action, one
initially for which the leave was obtained and the other which accrued
later upon a further act of defendant Nos.1 and 2 would constitute
misjoinder of the causes of action. Indeed it does not appear to
constitute any misjoinder.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.170 OF 2012
ALONGWITH
Parwan Constructions Pvt. Ltd.
Vs.
Ranjitsingh Linga & Ors.
CORAM : MRS. ROSHAN DALVI, J.
DATE : 23rdMarch, 2015.
Citation; 2016(1) ALLMR252
1. This Notice of Motion is taken out for rejection of the
plaint under the provisions of Order 7 Rule 11 (a) and (d) of the CPC.
2. The main dispute between the parties is with regard to the
Law of Limitation. If the suit is barred by the Law of Limitation, the
other aspects would not be required to be seen.
3. It is argued on behalf of the defendant Nos.1 and 2 that the
suit is barred, the cause of action having been accrued to the plaintiff
on 2nd January, 1997 when the conveyance by the ultimate
predecessor-in-title of the plaintiff took place with plaintiff's
predecessorintitle one Mehta & Kanakiya. Thereafter on 31st
October, 2002 the plaintiff obtained the conveyance from Mehta &
Kanakiya.
4. It is argued that the plaintiff was put to notice of the fact
alleged in the plaint from that date of 1997 because in the
conveyance in favour of the plaintiff the right, title and interest of the
plaintiff's predecessorintitle under their earlier conveyance would be
made known to the plaintiff and the plaintiff would be imputed such
knowledge.
5. My attention is drawn to the clause relating to the notice
under Section 3 of the Transfer of Property Act which runs thus :
“a person is said to have notice” of a fact when he actually knows
that fact, or when, but for wilful abstention from an enquiry or
search which he ought to have made, or gross negligence, he would
have known it.
6. The plaintiff would be taken to have notice of the fact of
whatever was the title of the plaintiff's predecessor-in-title on the date
of the conveyance in favour of the plaintiff which was on 31st October,
2002. Of course, if the right of the plaintiff's predecessor-in-title was
barred by limitation the plaintiff's right is also be barred by limitation.
Otherwise the plaintiff would get the remainder of the period to sue if
not barred by Law of Limitation. The plaintiff would step into shoes
of ultimate predecessorintitle who was one Muktaben, the owner of
the entire property.
7. The suit property was tenanted to various tenants
including defendant Nos.1 and 2 by Muktaben. Muktaben entered
into the conveyance in favour of the plaintiff's predecessor-in-title to 2nd January, 1997. In that conveyance the fact of illegal construction
done by various occupants (tenants) including defendant Nos.1 and 2 so as to affect balance available FSI of the said property was recited.
The plaintiff's predecessors-in-title were unaware of such
unauthorized construction. The plaintiff's predecessors-in-title
executed the conveyance in favour of the plaintiff on 31st October,
2002. Upon the execution of the conveyance, therefore, the plaintiff
would have the remainder of the time to sue if the suit was not barred
on that date. Under Article 66 of schedule 1 to the Limitation Act,
1963 the suit for possession of the immovable property by reason of
breach of any condition would be 12 years when the condition was
broken. Even if the condition was taken to be broken from 1997 the
plaintiff's predecessors-in-title or thereafter the plaintiff could sue
within 12 years of 2nd January, 1997. Such a suit, therefore, could
have been filed on or before 1st January, 2009. The plaintiff sued all
the tenants / occupants including defendant Nos.1 and 2 in 2007
which was within the period of limitation.
8. The plaintiff withdrew that suit on 21st June, 2010 with
liberty to file the fresh suit upon the same cause of action. The cause
of action in that suit was the unauthorized construction by the tenants
/ occupants including defendant Nos.1 and 2 herein so as to affect the
FSI of the owner. The plaintiff as the owner would be entitled to the
FSI of the ultimate predecessorintitle, Muktaben and immediate
predecessorintitle, Mehta & Kanakiya.
9. Under Order 23 Rule 2 of the CPC which runs thus :
Limitation law not affected by first suit. –
In any fresh suit instituted on permission granted under the last
proceeding rule, the plaintiff shall be bound by the law of limitation
in the same manner as if the first suit had not been instituted.
10. The Limitation Law to file a fresh suit would not be
affected by the first suit. Hence in any suit filed the plaintiff would be
bound by the Law of Limitation in the same manner as if the first suit
was not filed. The plaintiff would, therefore, nevertheless have to sue
on the same cause of action within the period of limitation. That
would end in 2009.
11. Under Section 14(3) of the Limitation Act, 1963, which
runs thus :
Notwithstanding anything contained in rule 2 of Order XXXIII of the
Code of Civil Procedure, 1908 (5 of 1908), the provisions of subsection
(1) shall apply in relation to a fresh suit instituted on
permission granted by the court under rule 1 of that Order where
such permission is granted on the ground that the first suit must fail
by reason of a defect in the jurisdiction of the court or other cause of
a like nature.
Explanation. For the purposes of this section, –
(a) in excluding the time during which a former civil proceeding was
pending, the day on which that proceeding was instituted and the
day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to
be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be
a cause of a like nature with defect of jurisdiction.
12. Hence despite the Order 23 Rule 2 of the CPC the
exclusion of time for bonafide purchaser in a Court without
jurisdiction would be allowed. If the permission is granted on the
ground of any defect of jurisdiction including misjoinder of parties
and causes of action the plaintiff can file the fresh suit, later than the
expiring of the period of limitation. This is one such suit. This suit is
filed on 25th August, 2010. The suit has been filed against defendant
Nos.1 and 2 who were some of the tenants / occupants in the previous
Suit No.1251 of 2007. The plaintiff has filed other separate suits
against other occupants / tenants initially in this Court which have
been transferred to the Bombay City Civil Court upon the question of
pecuniary jurisdiction. Hence it was the defect of jurisdiction in suing
all the tenants / occupants together which was sought to be remedied
for which the plaintiff applied for and obtained leave and then sued
separately.
13. That was for the cause of action relating to unauthorized
construction affecting the FSI of the plaintiff as the owner much as it
affected the FSI initially of Muktaben and later of Mehta & Kanakiya.
Thus seen the suit for that cause of action would not be barred.
14. The plaintiff has sued on another cause of action also. That
the application of defendant Nos.1 and 2 for registration of the
cooperative society made on 17th July, 2009 well after the first suit
was withdrawn and before the second suit being the fresh suit came
to be filed upon the leave and liberty granted. The plaintiff would
contend that that application came to be rejected in 15th September,
2009. The plaintiff would contend that upon that cause of action the
plaintiff could have filed a separate suit. The suit filed within a year
and a month of that application would not be barred by any Law of
Limitation.
15. Hence it is seen that there are two causes of action upon
which the plaintiff has sued. They are in respect of the same property
and against the same party. The plaintiff can join those causes of
action to sue. The plaintiff could sue in respect of the initial cause of
action consequent upon the leave granted. The plaintiff could file any
other suit on any other cause of action within the period of limitation.
Hence the plaintiff could sue on the second cause of action even
without the leave. That is the inherent right of the plaintiff to sue in
civil court. That right is not barred.
16. Consequently the first right which would otherwise be
barred is saved by the leave granted upon the defect of jurisdiction.
The second right is not barred at all.
17. The chronology of the events and dates and the averments
in plaint, therefore, do not show that the suit is barred by the Law of
Limitation and the plaint, therefore, cannot be rejected on the ground
that the suit is barred by the Law of Limitation under Order 7 Rule
11(d) of the CPC. Hence prayer 'c' of the Notice of Motion is rejected.
18. It is also contended that this suit is filed upon the leave
granted in Suit No.1251 of 2007. This suit, however, extends further.
Leave has been granted obviously to sue on the same cause of action.
The cause of action in that suit was unauthorized construction and
encroachment outside the premises of defendant Nos.1 and 2 as also
the other occupants / tenants. This suit is filed on that cause of
action.
19. It is not contended that these two causes of action, one
initially for which the leave was obtained and the other which accrued
later upon a further act of defendant Nos.1 and 2 would constitute
misjoinder of the causes of action. Indeed it does not appear to
constitute any misjoinder.
20. It is contended on behalf of the defendant Nos.1 and 2 that
this suit should be filed only as per the leave granted. It is not so filed
and hence must be rejected cannot be accepted. The suit is indeed
not only as per leave granted but is a suit as per leave granted as also
upon another cause of action which accrued to the plaintiff thereafter.
The plaintiff could have filed two separate suits; one upon the leave
being granted and one upon a fresh cause of action. Instead to avoid
multiplicity of proceedings the plaintiff has sued on both the causes of
action.
21. Under Order 23 Rule 1(1) the plaintiff may withdraw a
plaint. Under Order 23 Rule 3(b) if there are sufficient grounds the
Court may allow the plaintiff to file a fresh suit for the subject matter
of the suit itself. That is the suit filed by the plaintiff upon such leave
under Rule 3 ((b) with regard to the unauthorized construction and
the encroachment made by the defendant Nos.1 and 2. However,
Order 23 Rule 1(3) (b) does not prevent a plaintiff from suing upon
any cause of action also. The plaintiff would, therefore, be entitled to
sue upon such cause of action also and the suit thus filed cannot be
rejected in the absence of the bar to file fresh suit on the another
cause of action also.
22. In the case of Rakhmabai Piraji Sapkal Vs. Mahadeo
Narayan Bundre, AIR 1917 Bombay 10(1), the suit for ejectment
was withdrawn as the notice to quit was not given to the defendant.
Another suit for ejectment was brought after the notice to quit was
given. The suit was withdrawn without leave. It was held that the
second suit was not barred because the two suits were not in respect
of the same subject matter. In the first suit there was no cause of
action for want of notice in the second suit there was cause of action
upon such notice. Therefore, the causes of action were not the same.
23. It is contended on behalf of defendant Nos.1 and 2 that for
the fresh suit to be filed (which would be after expiry of the period
contemplated in Section 14(3) of the CPC.) must be for the same
subject matter. The “subjectmatter” is explained in the case of
Vallabh Das Vs. Madan Lal, 1970 DGLS(Soft) 184.
The expression “subjectmatter” is not defined in the Civil
Procedure Code. It does not mean property. That expression
has a reference to a right in the property which the plaintiff
seeks to enforce. That expression includes the cause of action
and the relief claimed. Unless the cause of action and the
relief claimed in the second suit are the same as in the first
suit, it cannot be said that the subjectmatter of the second
suit is the same as that in the previous suit.
In that case the first suit was for partition and separate possession.
The cause of action was division of the status of the parties. The
accrual of the cause of action was when the plaintiff was separated
from his family conversion of joint possession into separate possession
was claimed. The fresh suit was for possession of the suit property
from a trespasser on the basis of his title. The cause of action would
arise upon a series of transactions which formed the basis of his title
to the suit properties.
24. The application of the defendant under prayer 'b' of the
Notice of Motion for rejection of the plaint on the ground of the bar
created under Order 23 Rule 1(1) r/w. Order 23 Rule 3(b) and Order
23 Rule 4 as prayed for by the plaintiff, therefore, cannot be accepted.
25. Hence prayer 'b' also rejected.
26. Prayer 'a' in the Notice of Motion has been considered in
Notice of Motion No.173 of 2014 and has been rejected on Friday,
20th March, 2015. Hence it need not be reconsidered.
27. Consequently the Notice of Motion is dismissed.
( ROSHAN DALVI, J. )
which the plaintiff has sued. They are in respect of the same property
and against the same party. The plaintiff can join those causes of
action to sue. The plaintiff could sue in respect of the initial cause of
action consequent upon the leave granted. The plaintiff could file any
other suit on any other cause of action within the period of limitation.
Hence the plaintiff could sue on the second cause of action even
without the leave. That is the inherent right of the plaintiff to sue in
civil court. That right is not barred.
Consequently the first right which would otherwise be
barred is saved by the leave granted upon the defect of jurisdiction.
The second right is not barred at all.
The chronology of the events and dates and the averments
in plaint, therefore, do not show that the suit is barred by the Law of
Limitation and the plaint, therefore, cannot be rejected on the ground
that the suit is barred by the Law of Limitation under Order 7 Rule
11(d) of the CPC. Hence prayer 'c' of the Notice of Motion is rejected.
18. It is also contended that this suit is filed upon the leave
granted in Suit No.1251 of 2007. This suit, however, extends further.
Leave has been granted obviously to sue on the same cause of action.
The cause of action in that suit was unauthorized construction and
encroachment outside the premises of defendant Nos.1 and 2 as also
the other occupants / tenants. This suit is filed on that cause of
action.
It is not contended that these two causes of action, one
initially for which the leave was obtained and the other which accrued
later upon a further act of defendant Nos.1 and 2 would constitute
misjoinder of the causes of action. Indeed it does not appear to
constitute any misjoinder.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.170 OF 2012
ALONGWITH
Parwan Constructions Pvt. Ltd.
Vs.
Ranjitsingh Linga & Ors.
CORAM : MRS. ROSHAN DALVI, J.
DATE : 23rdMarch, 2015.
Citation; 2016(1) ALLMR252
1. This Notice of Motion is taken out for rejection of the
plaint under the provisions of Order 7 Rule 11 (a) and (d) of the CPC.
2. The main dispute between the parties is with regard to the
Law of Limitation. If the suit is barred by the Law of Limitation, the
other aspects would not be required to be seen.
3. It is argued on behalf of the defendant Nos.1 and 2 that the
suit is barred, the cause of action having been accrued to the plaintiff
on 2nd January, 1997 when the conveyance by the ultimate
predecessor-in-title of the plaintiff took place with plaintiff's
predecessorintitle one Mehta & Kanakiya. Thereafter on 31st
October, 2002 the plaintiff obtained the conveyance from Mehta &
Kanakiya.
4. It is argued that the plaintiff was put to notice of the fact
alleged in the plaint from that date of 1997 because in the
conveyance in favour of the plaintiff the right, title and interest of the
plaintiff's predecessorintitle under their earlier conveyance would be
made known to the plaintiff and the plaintiff would be imputed such
knowledge.
5. My attention is drawn to the clause relating to the notice
under Section 3 of the Transfer of Property Act which runs thus :
“a person is said to have notice” of a fact when he actually knows
that fact, or when, but for wilful abstention from an enquiry or
search which he ought to have made, or gross negligence, he would
have known it.
6. The plaintiff would be taken to have notice of the fact of
whatever was the title of the plaintiff's predecessor-in-title on the date
of the conveyance in favour of the plaintiff which was on 31st October,
2002. Of course, if the right of the plaintiff's predecessor-in-title was
barred by limitation the plaintiff's right is also be barred by limitation.
Otherwise the plaintiff would get the remainder of the period to sue if
not barred by Law of Limitation. The plaintiff would step into shoes
of ultimate predecessorintitle who was one Muktaben, the owner of
the entire property.
7. The suit property was tenanted to various tenants
including defendant Nos.1 and 2 by Muktaben. Muktaben entered
into the conveyance in favour of the plaintiff's predecessor-in-title to 2nd January, 1997. In that conveyance the fact of illegal construction
done by various occupants (tenants) including defendant Nos.1 and 2 so as to affect balance available FSI of the said property was recited.
The plaintiff's predecessors-in-title were unaware of such
unauthorized construction. The plaintiff's predecessors-in-title
executed the conveyance in favour of the plaintiff on 31st October,
2002. Upon the execution of the conveyance, therefore, the plaintiff
would have the remainder of the time to sue if the suit was not barred
on that date. Under Article 66 of schedule 1 to the Limitation Act,
1963 the suit for possession of the immovable property by reason of
breach of any condition would be 12 years when the condition was
broken. Even if the condition was taken to be broken from 1997 the
plaintiff's predecessors-in-title or thereafter the plaintiff could sue
within 12 years of 2nd January, 1997. Such a suit, therefore, could
have been filed on or before 1st January, 2009. The plaintiff sued all
the tenants / occupants including defendant Nos.1 and 2 in 2007
which was within the period of limitation.
8. The plaintiff withdrew that suit on 21st June, 2010 with
liberty to file the fresh suit upon the same cause of action. The cause
of action in that suit was the unauthorized construction by the tenants
/ occupants including defendant Nos.1 and 2 herein so as to affect the
FSI of the owner. The plaintiff as the owner would be entitled to the
FSI of the ultimate predecessorintitle, Muktaben and immediate
predecessorintitle, Mehta & Kanakiya.
9. Under Order 23 Rule 2 of the CPC which runs thus :
Limitation law not affected by first suit. –
In any fresh suit instituted on permission granted under the last
proceeding rule, the plaintiff shall be bound by the law of limitation
in the same manner as if the first suit had not been instituted.
10. The Limitation Law to file a fresh suit would not be
affected by the first suit. Hence in any suit filed the plaintiff would be
bound by the Law of Limitation in the same manner as if the first suit
was not filed. The plaintiff would, therefore, nevertheless have to sue
on the same cause of action within the period of limitation. That
would end in 2009.
11. Under Section 14(3) of the Limitation Act, 1963, which
runs thus :
Notwithstanding anything contained in rule 2 of Order XXXIII of the
Code of Civil Procedure, 1908 (5 of 1908), the provisions of subsection
(1) shall apply in relation to a fresh suit instituted on
permission granted by the court under rule 1 of that Order where
such permission is granted on the ground that the first suit must fail
by reason of a defect in the jurisdiction of the court or other cause of
a like nature.
Explanation. For the purposes of this section, –
(a) in excluding the time during which a former civil proceeding was
pending, the day on which that proceeding was instituted and the
day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to
be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be
a cause of a like nature with defect of jurisdiction.
12. Hence despite the Order 23 Rule 2 of the CPC the
exclusion of time for bonafide purchaser in a Court without
jurisdiction would be allowed. If the permission is granted on the
ground of any defect of jurisdiction including misjoinder of parties
and causes of action the plaintiff can file the fresh suit, later than the
expiring of the period of limitation. This is one such suit. This suit is
filed on 25th August, 2010. The suit has been filed against defendant
Nos.1 and 2 who were some of the tenants / occupants in the previous
Suit No.1251 of 2007. The plaintiff has filed other separate suits
against other occupants / tenants initially in this Court which have
been transferred to the Bombay City Civil Court upon the question of
pecuniary jurisdiction. Hence it was the defect of jurisdiction in suing
all the tenants / occupants together which was sought to be remedied
for which the plaintiff applied for and obtained leave and then sued
separately.
13. That was for the cause of action relating to unauthorized
construction affecting the FSI of the plaintiff as the owner much as it
affected the FSI initially of Muktaben and later of Mehta & Kanakiya.
Thus seen the suit for that cause of action would not be barred.
14. The plaintiff has sued on another cause of action also. That
the application of defendant Nos.1 and 2 for registration of the
cooperative society made on 17th July, 2009 well after the first suit
was withdrawn and before the second suit being the fresh suit came
to be filed upon the leave and liberty granted. The plaintiff would
contend that that application came to be rejected in 15th September,
2009. The plaintiff would contend that upon that cause of action the
plaintiff could have filed a separate suit. The suit filed within a year
and a month of that application would not be barred by any Law of
Limitation.
15. Hence it is seen that there are two causes of action upon
which the plaintiff has sued. They are in respect of the same property
and against the same party. The plaintiff can join those causes of
action to sue. The plaintiff could sue in respect of the initial cause of
action consequent upon the leave granted. The plaintiff could file any
other suit on any other cause of action within the period of limitation.
Hence the plaintiff could sue on the second cause of action even
without the leave. That is the inherent right of the plaintiff to sue in
civil court. That right is not barred.
16. Consequently the first right which would otherwise be
barred is saved by the leave granted upon the defect of jurisdiction.
The second right is not barred at all.
17. The chronology of the events and dates and the averments
in plaint, therefore, do not show that the suit is barred by the Law of
Limitation and the plaint, therefore, cannot be rejected on the ground
that the suit is barred by the Law of Limitation under Order 7 Rule
11(d) of the CPC. Hence prayer 'c' of the Notice of Motion is rejected.
18. It is also contended that this suit is filed upon the leave
granted in Suit No.1251 of 2007. This suit, however, extends further.
Leave has been granted obviously to sue on the same cause of action.
The cause of action in that suit was unauthorized construction and
encroachment outside the premises of defendant Nos.1 and 2 as also
the other occupants / tenants. This suit is filed on that cause of
action.
19. It is not contended that these two causes of action, one
initially for which the leave was obtained and the other which accrued
later upon a further act of defendant Nos.1 and 2 would constitute
misjoinder of the causes of action. Indeed it does not appear to
constitute any misjoinder.
20. It is contended on behalf of the defendant Nos.1 and 2 that
this suit should be filed only as per the leave granted. It is not so filed
and hence must be rejected cannot be accepted. The suit is indeed
not only as per leave granted but is a suit as per leave granted as also
upon another cause of action which accrued to the plaintiff thereafter.
The plaintiff could have filed two separate suits; one upon the leave
being granted and one upon a fresh cause of action. Instead to avoid
multiplicity of proceedings the plaintiff has sued on both the causes of
action.
21. Under Order 23 Rule 1(1) the plaintiff may withdraw a
plaint. Under Order 23 Rule 3(b) if there are sufficient grounds the
Court may allow the plaintiff to file a fresh suit for the subject matter
of the suit itself. That is the suit filed by the plaintiff upon such leave
under Rule 3 ((b) with regard to the unauthorized construction and
the encroachment made by the defendant Nos.1 and 2. However,
Order 23 Rule 1(3) (b) does not prevent a plaintiff from suing upon
any cause of action also. The plaintiff would, therefore, be entitled to
sue upon such cause of action also and the suit thus filed cannot be
rejected in the absence of the bar to file fresh suit on the another
cause of action also.
22. In the case of Rakhmabai Piraji Sapkal Vs. Mahadeo
Narayan Bundre, AIR 1917 Bombay 10(1), the suit for ejectment
was withdrawn as the notice to quit was not given to the defendant.
Another suit for ejectment was brought after the notice to quit was
given. The suit was withdrawn without leave. It was held that the
second suit was not barred because the two suits were not in respect
of the same subject matter. In the first suit there was no cause of
action for want of notice in the second suit there was cause of action
upon such notice. Therefore, the causes of action were not the same.
23. It is contended on behalf of defendant Nos.1 and 2 that for
the fresh suit to be filed (which would be after expiry of the period
contemplated in Section 14(3) of the CPC.) must be for the same
subject matter. The “subjectmatter” is explained in the case of
Vallabh Das Vs. Madan Lal, 1970 DGLS(Soft) 184.
The expression “subjectmatter” is not defined in the Civil
Procedure Code. It does not mean property. That expression
has a reference to a right in the property which the plaintiff
seeks to enforce. That expression includes the cause of action
and the relief claimed. Unless the cause of action and the
relief claimed in the second suit are the same as in the first
suit, it cannot be said that the subjectmatter of the second
suit is the same as that in the previous suit.
In that case the first suit was for partition and separate possession.
The cause of action was division of the status of the parties. The
accrual of the cause of action was when the plaintiff was separated
from his family conversion of joint possession into separate possession
was claimed. The fresh suit was for possession of the suit property
from a trespasser on the basis of his title. The cause of action would
arise upon a series of transactions which formed the basis of his title
to the suit properties.
24. The application of the defendant under prayer 'b' of the
Notice of Motion for rejection of the plaint on the ground of the bar
created under Order 23 Rule 1(1) r/w. Order 23 Rule 3(b) and Order
23 Rule 4 as prayed for by the plaintiff, therefore, cannot be accepted.
25. Hence prayer 'b' also rejected.
26. Prayer 'a' in the Notice of Motion has been considered in
Notice of Motion No.173 of 2014 and has been rejected on Friday,
20th March, 2015. Hence it need not be reconsidered.
27. Consequently the Notice of Motion is dismissed.
( ROSHAN DALVI, J. )
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