5th Decr. 1906. Further appeal from the decree of J. G. M. Rennie, Esquire, Additional Divisional Judge, Amritsar Division, dated 9th June 1904. Gurcharn Singh, for appellant. Lakshmi Narain and Bakhsi Sohan Lal, for respondents. The judgment of the Court was delivered by CHATTERJI, J.-The material facts of this case are given in the lower Court's judgments. The land in suit is situate in the Civil Station of Amritsar and in Tukra No. 6 in the revenue records. Both plaintiff pre-emptor and the defendant purchaser own lands in the same tukra, but plaintiff's land is adjacent to the land sold, and it is further stated that while this is agricultural land that belonging to the vendee is building land. There is no evidence whatever regarding any custom bearing on the right of pre-emption, and it is admitted that the land is within the limits of a municipality. The adjacency of the plaintiff's land goes for nothing, and if the land in suit is held to be within the limits of a town as the lower Courts held the plaintiff's claim fails, and has been rightly dismissed by them. The only case in which plaintiff can succeed is if the land is decided to be situate in a village and defendant held not to be a landowner because his land is building land while the disputed laud and plaintiff's other lands are agricultural land. The evidence absolutely fails to show that the lands in Tukra No. 6 are situate in a village or belong to a village community. All we know is that Amritsar is described as a mauza and the lands are entered in the Revenue Records in tukras of which Tukra No. 6 is the one which contains the disputed land with lands of the parties. We cannot on this meagre information hold that Tukra No. 6 is situate in a village and that the owners are members of, or belong to a village community. The indications are quite the contrary and tukra is entered in the column of "patti" and the revenue of each is separate. We accept the reasoning used in Ram Narain Singh v. Sewak Ram (1), to indicate what is a village or a village community. On the evidence adduced it is impossible to come to a finding in plaintiff's favour on this point, and there is no ground for ordering a further inquiry. As far as one can gather from the undisputed facts (1) that Amritsar is a large town and (2) that the land in suit is situate within the limits of the municipality of that town the case would appear to be governed by Section 11 of the Punjab Laws Act under which plaintiff has no claim. (1) 21 P. R., 1906. On the other point, whether defendant's land being building land he should be held not to be a landowner within the meaning of clause (d) of Section 12. The view taken of the meaning of land in this section in Haidar v. Ishwar Das (1) commends itself entirely to our judgment. Nor is it clear that defendant's land cau be absolutely excluded from the category of agricultural land in the ordinary sense of the term. If therefore Amritsar is a village and tukra corresponds to patti or sub-division of a village we think both parties are equally landowners in the patti and their rights equal, so that plaintiff has no priority of claim. It is not shown that defendant vendee's land is not assessed to revenue and even if it is not so assessed he would still be a landowner in the (so called) village, Jasmir Singh v. Rahmatulla (2). It would thus seem clear that, even on the assumption that Amritsar is a village within the meaning of Sections 10 and 12 of the Punjab Laws Act, plaintiff's claim cannot succced. We have said already that there is every indication that Amritsar is a town and the locality of the land is situate within the limits of a towr, and that as there is no proof of custom in plaintiff's favour the claim is not tenable under Section 11 of the Act. Phallu v. Mukarrab (3), and Jasmir Singh v. Rahmatulla (2), have no bearing on this case with reference to its facts. We accordingly dismiss this appeal with costs. No. 28. Appeal dismissed. Before Mr. Justice Chatterji, C.I.E., and Mr. Justice Rattigan. GANGA RAM AND OTHERS,-(PLAINTIFIS), APPELLANTS, Versus ABDUL RAHMAN AND OTHERS,- (DEFENDANTS),— RESPONDENTS. Civil Appeal No. 1184 of 1905. Civil Procedure Code, 1882, Section 43-Mortgage-Separate covenants for the payment of principal and interest-Distinct causes of actionCompetency of mortgagee to institute separate suits for principal and interest when both have fallen due-All claims on same cause to be included. Held, that when under a mortgage bond both principal and interest have become due, the mortgagee must sue for both together; other. APPELLATE SIDE. 1st Decr. 1906. wise he will be debarred under Section 43 of the Code of Civil Procedure from claiming in a subsequent suit, what was not claimed in the prior suit. The principle of Section 43 is that where several breaches of covenants made under one contract have occurred the cause of action of the various breaches merges into one and renders it obligatory upon a plaintiff to include all claims to which he is entitled under his contract in one action. First appeal from the decree of Captain A. A. Irvine, District Gouldsbury, for appellants. K. C. Chatterji, for respondents. The judgment of the Court was delivered by CHATTERJI, J.—The material facts of this case are briefly these. On 14th August 1897 the defendants-respondents executed a mortgage of certain house property in Simla for Rs. 6,000 in favour of the plaintiffs appellants on the following terms. The mortgagors were to remain in possession but to pay 15 per cent. per annum interest on the mortgage money and to make payments of amounts due for the same in October and June during the currency of the mortgage, the first payment being made in October 1897 and the next in June following. If instalments of interest were not paid at the stipulated time compound interest would run at the same rate. The principal of the mortgage money Was to be paid in half-yearly instalments of Rs. 600 each, commencing from June 1898. If two successive instalments of the principal were in arrears or if the last instalment was not paid in full the plaintiffs mortgagees were to be at liberty to realize the whole sum due to them from the mortgaged property or other property of the mortgagors. The mortgagees were to be at liberty to sue for unpaid interest or compound interest after due date, or to sue for the same along with the principal. The mortgage was for one year certain after which mortgagors were to be at liberty to repay the mortgage debt in whole or in part if they were so disposed. It appears that certain payments on account of interest were made but none towards the principal the whole of which remained outstanding. Plaintiffs brought 8 suit for the interest due to them on 23rd August 1904, and obtained a decree. They brought the present suit for the principal and subsequent interest on 17th April 1905. The defendants pleaded inter alia that suit was barred by Section 43 of the Code of Civil Procedure in consequence of the present claim not having been included in the previous suit. Their other pleas need not be recited here. The District Judge of Simla who tried the suit upheld the objection and dismissed claim as barred by Section 43, Civil Procedure Code, and this is the only point raised in the present appeal. The case has been fully argued and a mass of authorities has been quoted on both sides. Section 43 requires "that every suit shall include the "whole of the claim which the plaintiff is entitled "to make in respect of the cause of action", and further provides that "if a plaintiff omits to sue in respect of * "any portion of his claim, he shall not afterwards sue in respect of the portion so omitted The term cause of action has been nowhere defined in the Code, and the superior courts in India have therefore derived its meaning from extraneous sources coupled with the context of the sections in which it has been used. The ordinary and most comprehensive sense in which it is understood in England includes every fact which is material to be proved to entitle the plaintiff to succeed and every fact which the defendants would have the right to traverse (Cook v. Gill (1), Read v. Browne (')). Their Lordships of the Privy Council have declared it to have reference to the grounds set forth in the plaint as constituting his right to sue or in other words the media on which plaintiff asks the Court to arrive at a conclusion in his favour (Chandkur v. Purtap Singh (3)). In Haramaire Dossi v. Hari Charan Chowdhri (*), it was held that for purposes of Section 26 of the Code, cause of action" means merely the facts constituting the infringement of the rights of the plaintiffs and not also those constituting their right. But there is a consensus of opinion that it has the wider signification in (1) L. R., VIII C. P., 107. Section 43. Musti v. (3) L. R., 15 I. A., 156., Bholarum (1), Behari Lal v. Poke Ram (2), Rom Pershad v. Suchi Dosi (3), Nawab Muhammad Kabir Khan v. Mussummat Bhag Bhari (4). The mortgage deed appears to create the following primary rights of the plaintiffs against the defendants and the corresponding obligations on the part of the latter. (A) As respects the principal (i) That it was to be paid in six-monthly instalments of Rs. 600 each. (ii) That the whole was payable within five years. (iii) That if two instalments remained in arrears, the whole sum outstanding was cl imable by the plaintiffs. (B) As respects interest. (i) That it was payable at 15 per cent. per annum every six months, the first instalment falling due in October 1897. (ii) That if any instalment remained in arrears compound interest was to be paid on the same at the rate stipulated for the simple interest. When the first suit for interest was brought the whole of the principal had fallen due under the contract, all the instalments being then overdue. The plaintiffs contend that every breach of the individual covenants in the deed gives rise to an independent right of action, i.e., is a separate cause of action, and they further rely on the express provisions in the deed as to their being able to sue if default was made in the payment of interest. The following authorities were cited on their behalf: Ram Bhaj v. Devia (5) Jeshwant Narain v. Vithal Divakai (6), Badi Bibi v. ami Pillai (7), Firupati v. Nara Sima (). The last case may be disposed of in a few words. It was ruled in it that when a suit had been brought for mesne profits of certain land and dismissed o a technical point, a subsequent suit for possession of the land and mesue (1) I. L. R., XVI All., 185. (") 123 P. R., 1881. (°) I. L. R., XXI Bom., 267. (7) I. L. R., XVIII Mud., 257. (*) 1. L. R., XI Mad.. 210. |