Goshawarali vs Adhiklal Sahu and Another

Ray, J.—This is a defendant''s (1st party) second appeal preferred in a suit instituted by the respondents for recovery of possession of 2 plots of lands consisting of survey Nos. 137 and 875 with an area of 18 kathas 2 dhurs. The above-mentioned survey plots together with survey plot No. 515 appertain to khata No. 51 bearing an area of 19 kathas, 10 dhurs. The plaintiffs also claimed for recovery of inesne profits of Rs. 174-12-0 for the period beginning with the date of dispossession.

The aforesaid 19 kathas, 10 dhurs of land originally belonged to Matai Tanti. On 24th April 1928, Matai executed a mortgage (sudh-bharna) in favour of Turanti Lal Sao in respect of survey plot No. 187. On 12th June 1929, Matai executed another mortgage (sudhbharna) in favour of one Sudam Sao in respect of plots Nos. 137, 375 and 515. On 5th February 1931, Matai executed another usufructuary mortgage bond in favour of the plaintiffs, respondents in the name of plaintiff 2 in respect of plots-Nos. 137, 375 and 515. The mortgagor put the plaintiffs into possession over the lands on 22nd February 1984, Matai executed a sale deed in favour of the appellant Shaikh Goswar Ali (defendant 1st party) in respect of survey plots Nos. 137 and 375. Lastly, on 5th March 1934, Matai executed another sale deed in favour of the plaintiffs-respondents in respect of the three plots 137, 375 and 515.

In November 1987, defendant 1st party-dispossessed the plaintiffs from the disputed lands (survey plots 137 and 375) on the strength of his purchase of February 1984. The plaintiffs approached the criminal Court for a proceeding u/s 144, Criminal P.C. The result of that proceeding, however, went against them. Their, therefore, had to file Title Suit No. 203/38 claiming title to and recovery of possession of the disputed lands on the strength of their title by purchase in March 1934. The plaintiffs had also claimed recovery of mesne profits from the date of dispossession.

The defendant 1st party resisted that suit in ejectment, on two grounds, namely, that they had acquired title by purchase in February 1934, a purchase prior to that of the plaintiffs, and alternatively on the ground of his having subrogated to the position of Sudam Sao a prior usufructuary mortgagee in respect of the disputed lands the mortgage being of June 1929. In order to deal with the contentions of the respective parties, it has to be borne in mind that the real question at issue between the parties in that suit centred round priority or otherwise of the conflicting claims of the respective parties. Set in this background it can be easily conceived whether or not the priority claim based upon the usufructuary mortgage in favour of the plaintiffs in the year 1931 should or should not have been a ground of attack against the act of dispossession of the defendants. The question of priority right of possession claimed by the defendant 1st party was declared to be unsubstantial by the Court below on the ground that Sudam Sao''s mortgage had never been given effect to, nor the sale but in the ultimate Court of appeal it was held in favour of the defendant 1st party that he had acquired a title by purchase by the sale deed of 22nd February 1934, and was, therefore, entitled to obtain and continue in possession of the disputed properties (survey plots Nos. 137 and 375). The plaintiffs, therefore, lost their suit instituted for. the purpose of establishing that the defendant 1st party was a trespasser as against them and failed to recover possession and mesne profits from the defendant 1st party. Hence, the present suit by the plaintiff''s out of which the second appeal arises.

The plaintiffs'' present suit is also a suit in ejectment of the defendants as trespassers with recovery of mesne profits against them, the alleged cause of action being the same act of dispossession in November 1937, by defendant 1st party and termination of the possessory proceedings in the criminal Courts in their (that is, defendants'') "favour. But the plaintiffs based their present title to recover possession and mesne profits on the usufructuary mortgage of 5th February 1931, and the pos a non that they had obtained and continued to be in, on the strength of the mortgage, till the date of dispossession.

The defendant 2nd party is Matai Tanti, the original owner of the properties in suit. The defendant 1st party-appellant urges that the present suit, or 1st least, the material issue on the determination of which the plaintiffs can obtain a decree in their favour is barred (1) by the principle of constructive judicata being a matter which might and ought to have been made ground of attack in the former suit, just referred to, and which shall, therefore, be deemed to have been a matter directly and substantially in issue in such suit (Section 11, Explanation 4, Civil P.C); and (2) by the principles of Order 2 Rule 2(1) and (2) I propose to quote, for the purpose of ready reference, the relevant portions of the provisions just referred to:

Section 11: No Court shall try any suit or issue in Which 4th matter directly and substantially in issue has been directly and substantially in issue In a former suit between the same parties, or between patties under whom they or any of them claim, litigating under the same title, in a Court Competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court,

Explanation IV : "Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."

Order 2, Rule. 2(1): "Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Where a plaintiff omits to sue 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.

In short, the question is whether the plaintiffs in their previous suit should have made it an alternative ground of attack that in case the defendant''s earlier purchase was found to be real, he should be held entitled, by virtue of his prior usufructuary mortgage of the year 1931, to recover possession in the same manner, as in his said suit the defendant 1st party had raised an alternative ground of defence that in case his purchase did not prevail, he would be entitled to retain possession of the land as subrogee the position acquired by him on his redemption of the mortgage of 1929. It has also to be consider ed whether this alternative ground of attack is a matter which not only might have been but ought to have been, in the circumstances of that case, raised. Further question that arises for consideration is whether the plaintiffs should be taken to have been litigating in the previous suit under the same title as in the subsequent suit.

In adjudging the applicability of Order 2, Rule 2 it has to be seen whether the above ground of attack is included within "the whole of the claim" contemplated in the rule, and whether the claim is one which the plaintiffs were entitled to make in respect of "the cause of action" for the previous suit.

Before proceeding further, one thing, however, is clear beyond all possibility of doubt that "the cause of action" that led the plaintiffs to bring the previous suit is identically the same which is the cause of action for the present suit. It is the identical act of dispossession by the defendant 1st party, and the upholding of the defendants'' possession in the proceeding u/s 114, Criminal P.C., that was taken recourse to rectify the said act of dispossession. It has been faintly argued that the failure of the previous suit is the cause of action for the subsequent suit. I cannot accede to this contention The cause of action arises when one party infringes the right of, or disowns the obligation due to, another party. If the defendant 1st party infringed the plaintiffs'' right or failed to discharge the obligation which he was under in relation to the plaintiffs'' right to the property, it was by his act of dispossession and not by his successful defence in the previous suit. The plaintiff''s failure in the previous suit amounts to denial to them of a particular remedy by the Court which they thought they were entitled to under the circumstances of that case. The plaintiffs in the present suit claim recovery of possession impugning the defendant''s act of dispossession as an act of trespass, and claiming the same mesne profits as they did in the previous suit. Whether the cause of action is the same or different is a question of fact, and I do not find that the cause of action of the present suit has been based upon any facts different from or other than the facts that made up the cause of action in the former suit. I have no hesitation in pronouncing that the causes of action for both the suits are the same and identical.

It has not been contended, nor could it be contended with any hope of success, that the ground of attack in the present suit might not have been a ground of attack in the previous suit, but what is argued against the applicability of Section 11 Expl. IV and Rule 2 of Order 2 is that such a ground of attack or such a claim is not one which the plaintiffs ought to have made or were entitled to make a claim of, or a ground of attack in the previous suit.

The argument in substance is that the claim of right to possession based on purchase is antagonistic to or destructive of the claim based on the prior mortgage and hence it ought not to have been made a ground of attack or claim. This argument is fallacious in view of the provisions of Section 101, Transfer of Property Act. Such a contention could have been advanced under the section in its pre-amended form under which the very act of purchase by the holder of the charge, or the encumbrance of the property without anything more would extinguish the mortgage, but the section in its amended form makes it clear that one can at the same time be a mortgagee and or a transferee of the rights of the mortgagor. In this view of the matter, there would have been no repugnancy, nor any confusion, for the plaintiffs to have said in the previous suit that they were in relation to their right to possession of the lands, owners of the absolute right to the property or mortgagees thereof, and that they were entitled to recover possession in any one or more of their such rights without any prejudice to their case. I, therefore, cannot see any force in the contention that such a claim as is deducible from their position as mortgagees ought not to have been made, or that they were mot entitled to make, in. the previous suit.

Next, it is contended that the plaintiffs in the present suit are not litigating under the same title as they were doing in the previous suit inasmuch as then they sued as owners and now they sue as mortgagees. In this contention the word "title" occurring in Section 11 of the Code is sought to be interpreted in a very limited sense. A lot o� authorities have been cited in support of, as well as in opposition, to this contention and I well proceed to deal with them presently, one after the other.

In Peria Odaya Taver v. Katama Natchair (1837) 11 M.I.A. 50 the facts were that on the death of the zamindar, the original proprietor of Shivagunga, the question arose whether he was undivided in estate with his brother and whether the zamindary was to pass as at undivided or divided estate. A document was produced in which the zamindar made a testamentary gift of the estate to the appellant''s father. In the suits that were brought and came ultimately before the Privy Council in 1844 the exact issue whether the family was divided or undivided had not been so raised as to become necessarily a subject of judicial determination. The issue, however, of the validity of the alleged testamentary paper had been raised and the decision of the Sadar Court was against it. When the case came before the Privy Council in 1844, they held that the question of validity of any devise could not be determined until there was a judicial determination upon the point whether the family was divided or undivided. The Privy Council remitted the case pointing out the necessity of such a decision, in accordance with the direction of the Privy Council, the respondent before their Lordships'' Court filed a suit for recovery of the zamindary raising the question of forgery or genuineness of the testamentary paper very distinctly. The present'' appellant in his answer to it through his guardian did not set up the alleged testamentary paper, but he rested his defence on the ground that as to this property, the brothers were undivided. When the suits came before their Lordships of the Privy Council, they were of opinion that the zamindary in question was self-acquired property of the last male holder, and thus the question of division or no division was after all immaterial. They accordingly held that the estate was capable of being devised, and the law applicable to the undivided property not being applicable thereto, it descended to the heirs generally. The determination of the question with regard to the validity of genuineness of the testamentary paper became immaterial in view of the stand taken by the appellant in relation to that document namely, that it was a document amounting to a declaration of opinion of the last proprietor that the zamindary was in reality ant undivided property. After having lost in that suit, the appellant instituted the present suit founding his claim on this testamentary paper as a devise of the estate and insisting upon it as being a valid will and testament. Their Lordships held that the plaintiff-appellant''s suit was barred by the rule of res judicata. Their Lordships reasoned in the following manner:

In the first place, it is clear, upon the former record, that the appellant had then the power of relying upon that document as being a valid will. He in effect stated, or might have stated, his defence in the suits of 1856 in the alternative. He might, first, have insisted that it was an undivided property, and that, therefore, the plaintiff in these suits had no interest therein; and, secondly, he might have pleaded, but if it shall turn oat to be a divided property, then my title arises under this instrument, and I plead and rely upon it as amounting to a valid devise in my favour. When a plaintiff claims an estate, and the defendant, being, in possession, resists that claim, he is bound to resist it upon all the grounds that it is possible for him, according to his knowledge, then to bring forward.

There Lordships, therefore, held that the thing (the validity or genuineness of the will and the claim based upon it) must be held to have been in issue in the previous suit, and that what was in issue must be taken to have been decided by the judgment against the plaintiff-appellant.

In Woomatara Debia v. Unnopoorna Dassee (73) 11 Beng. L.R. 158 Section 2 of Act 8 (VIII) of 1869, (Civil P.C), came up for interpretation by their Lordships of the Privy Council. The section read:

The civil Court shall not take cognizance of any suit brought on a cause of action which shall have been heard and determined by a Court of competent jurisdiction in a former suit between the same parties, or between parties under whom they claim.

The facts of the case, in short, were that the plaintiff filed a suit for recovery of possession by the defendant. She based her title to the land in suit on the ground that it was taufir land. She lost the suit. She brought a fresh suit claiming the same land as property belonging to her talook according to the true boundary line. The question arose whether both the suits were based upon the same cause of action, and their Lordships held that as it was the same act of dispossession, and the result of certain proceedings culminating in a decision of the Judge in the Act IV case by affirming the possession of the defendants in the land, leaving the party who felt aggrieved to her remedy by a civil Court; the cause of action for both the suits was held to be the same and identical. The mere fact that the first suit was lost was not considered to give rise to a different cause of action. The learned Counsel for the respondent before us has advanced a similar contention to the effect that the dismissal of the previous suit of his was the cause of action for the subsequent suit. This contention must receive the came fate as a similar contention received in the case before their Lordships of the Privy Council. To an argument that the plaintiff having advanced a claim that; the lands were acquired as taufir, that is, by gradual squatting or encroachment, any claim. on the basis that they formed a part of their original talook ought not to have been advanced in that suit, their Lordships observed that it was open to the plaintiff in the former suit to shape her title in either of three ways, namely, that the whole of the land then claimed was taufir land, or a portion of the land fell within the at look, and the residue of it vim taufir land, or she might have put her case in the alternative, and have said that she had a good title to portion as her original land, but that should the proof of that fail, that portion also was to be considered as taufir land. With these observations, their Lordships held that the case was within the principle and letter of the section under consideration, and that the suit in question was barred by res judicata. In doing so, their Lordships thought it desirable to remark that the principle of their Lordships'' decision in this case was almost identical with that laid down in the judgment of Lord Westbury in Peria Odaya Taver v. Kantama Natchair (1837) 11 M.I.A. 50, already referred to.

The case in Rajah of Pittapur v. Venkata Mahipatisurya (84) 12 I.A. 116 affords an instance in which a claim not arising out of the same cause of action may not be made a ground of attack or defence in the previous suit. In that case an estate consisting of immovable properties and personality had been devised under the will of the last holder. The defendants applied to have the estate (the immovable properties) registered in their name and succeeded. The plaintiff thereupon sued for cancelment of the registry and recovery of possession of the lands out of which the defendants had improperly turned them out. The defendants succeeded in establishing their title under the will, and, later, instituted another suit for recovery of the personal properties. Their Lordships relied upon decision in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum (1837) 11 M.I.A. 551 and held that the correct test is, whether the claim in a new suit is in fact founded on a cause of action distinct from that which was the foundation of the former suit. Addressing themselves to the facts of that particular case, their Lordships held that it was a distinct cause of action altogether, and did not arise at all out of the other. It is not like the case of one conversion of several things. There the act of conversion of the several things is one-cause of action, and you cannot bring an action for the conversion of one of the things, and a. separate Action for the conversion of another. The conversion of the whole is one claim and one-cause of action. As there was no attack by the defendants upon the plaintiff''s title to the personal properties at the tinge of the previous suit it was not necessary for him to include his claim with regard to the personal properties in that suit. According to their Lordships'' view, it is not necessary that every suit shall include every cause of action or every claim which the party has, but every suit shall include the whole of the claim arising out of the cause of action meaning the cause of action for which the suit is brought.

The point that clearly stands out, from a consideration of these decisions, is that where the cause of action is one and identical, the whole of the claim arising out of that must have been included or must be taken to have been included in the former suit however inconsistent the several standpoints of the claim may be.

In Deputy Commr. Kheri v. Khanjan Singh (07) 34 I.A. 72 it was held that a suit by a reversioner for enforcement of his right of pre-emption in respect of a property sold by the widow ought not to have included his claim, as a ground of attack, to have the sale Set aside as being not binding against him after the widow''s death as the two claims are incongruous to each other, and the last claim is one which ought not to have been made a ground of attack within the meaning of Section 13, Civil P.C. 1882.

The case In Payana Reena Saminathan v. Pana Lana Palaniappa (14) 41 I.A. 142 was a case before the Board of the Judicial Committee from Ceylon. Section 34, Ceylon Civil P.C. is identically the same as Order 2, Rule 2, Civil P.C. In construing the section it was observed by their Lordships:

It 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 of different causes of action, even though they arise from the same transaction.

In Kameswar Pershad v. Rajkumari Puttan Koer (93) 20 Cal. 79, a widow charged her widow''s estate with payment of a certain debt; and afterwards surrendered the same to the next reversioner on condition that he should pay all her debts. During the lifetime of the widow the creditor sued the widow and the reversioner for recovery of the debt. The cause of action for the suit was that the property in the hands of the reversioner was liable for the debts. The suit was dismissed against the reversioner. In a subsequent suit, he sued the reversioner again on the ground that on taking the surrender of the estate from the widow, he had agreed to become responsible for the debts. It was held that this latter claim might and ought to have been made ground of attack in the former suit within the Expln. 2 of Section 13, Civil P.C. 1882 and must accordingly be deemed to have been directly and substantially in issue in the former suit, and, therefore, their Lordships observed:

That it ''Ought to have been'' appears to their Lordships to depend upon the particular facts of each case. "Where matters are so dissimilar that their union might lead to confusion, the construction of the word ''ought'' would become important; in this case the matters were the same. It was only an alternative way of seeking to impose a liability upon Bun Bahadur, and it appears to their Lordships that the matter ''ought'' to have been made a ground of attack in the former suit, and therefore, that it should be ''deemed to have been a matter directly and substantially in issue'' in the former suit and is res judicata.

In Muhammad Rowther v. M.M. Abdul Rahaman AIR 1923 Mad. 257, the plaintiff claimed a certain share in a certain property on the ground that he was a cosharer of the deceased. He lost the suit and in a subsequent suit claimed a share in the property as his heir. It was held that the subsequent suit was barred by res judicata. The apparent inconsistency between the two claims was not considered sufficient to make them incongruous for the purpose of their inclusion in the same suit as alternative grounds of defence or attack.

In Kamaruddin Shah and Others Vs. Sk. Diljan, , the provisions of Order 2, Rule 2, Civil P.C. came up for consideration. In that case A gave two mortgages of two items of properties to B. Later, he entered into a contract for sale to B of the properties in consideration of the money, due under the mortgages plus some money paid in cash. It was stipulated that in the event of cancellation of the contract, mortgage dues will be recoverable. The contemplated event took place. B maintained a suit for recovery of the sum paid in cash at the time of the contract and secured a decree. Later, he sued for the mortgage money. It was held that the suit was barred under the provisions of Rule 2 of the Order, because the claim of the later suit arose out of the same cause of action and should have been included in the first suit.

In Raman Chaubey v. Bacha Missir AIR 1921 Pat. 326, it was held that the claims, however inconsistent, ought to be advanced alternatively in the suit unless they are so incongruous and dissimilar that the facts supporting them are mutually destructive. This view was based upon the meaning attributable to the words "ought to have been", occurring in explanation (4) of Section 11, Civil P.C.

The learned Counsel for the respondents has relied upon certain decisions to be noticed presently in support of his contention that the plaintiff''s claims, as owner and his claim as mortgagee of the disputed property, could not be included in the former suit as they constituted different titles, under which the plaintiff litigated in each of the suits. This argument overlooks the fact that in both the suits he claimed that he had "the right to possess". How he comes to possess it may have to be supported on several and different grounds. At best, it can be said that he was litigating different titles, one mortgagee''s title, and the other purchaser''s title, but this is quite distinct from "litigating under the same title". In each of the two suits he was litigating in his individual capacity, for his own self and in his own interest. It is only when the plaintiff or the defendant, as the case may be, sues or is sued in several suits as different legal persona, the personality having (has?) reference to his capacity to sue or be sued and not to the particular right or rights on which his claims for or resistance to the relief involved in the suit arising from a cause of action. The distinction can be illustrated by the position that one occupies as a trustee or as a guardian as distinguish, ed from the one he occupies for his own self.

The difficulty arises out of some learned Judges having expressed themselves too widely employing the terms "different titles" to mean "different sources of right, title and interest". The simple answer to such method of reasoning is if the Legislature meant the word ''title'' to mean a particular ground of attack or defence as distinct from another, there would be no meaning in enacting explanation (ii) to Section 11. The section with the explanation contemplates a party litigating under the same title but having several grounds of attack or defence advanced in support of various claims converging to one relief or reliefs.

In such circumstances the circumspect enjoined by Lord Dunedin in the well-known passage, quoted below, maybe kept in view. The passage is:

It is well, I think, in considering the eases, which are numerous to keep steadily in mind, that the question to be answered is always the question, arising upon the very words of the statute. It is often useful in striving to test the fact of a case to express the test in various phrases. But such phrases are merely aids to solving the original question, and must not be allowed to dislodge the original words A test embordered in certain phrase is put forward and only put forward by a Judge in considering the facts of the case before him. The phrase is seized on and treated as if it afforded a conclusive test for all circumstances with the result that a certain conclusion is plausibly represented as resting on authority, which would have little chance of being accepted if tried by the words of the statute itself.

Bearing these observations in mind, I shall now proceed to examine the cases cited to lend apparently support to the respondent''s contention at the Bar. The cases cited are Manglathammal v. Virappa Goundan AIR 1919 Mad. 743, Bhagat v. Deoki Nandan Prosad AIR 1918 Pat. 275, Rajani Kanta Saha and Others Vs. Arjun Chandra Chakravarty, , Pachan v. Kunhandi AIR 1930 Mad. 539, Mahomed Ibrahim v. Hamja Mahomed Ally (11) 35 Bom. 507, Ramaswami Aiyar v. Vaithinatha Ayyar (03) 26 Mad. 760, Lish v. Lish AIR 1924 Pat. 624, Girdhar Manor v. Dayabhai Kalabhai (84) 8 Bom. 174 (F.B.), Deputy Commr. Kheri v. Khanjan Singh (07) 34 I.A. 72 and Payana Reena Saminathan v. Pana Lana Palaniappa (14) 41 I.A. 142 (P.C.), None of these cases are of any assistance to the respondents in consideration of the special features of this case.

In Deputy Commr. Kheri v. Khanjan Singh (07) 34 I.A. 72 which has already been noticed by me in one of the previous paragraphs, the subsequent suit for setting aside a sale by a reversioner on the death of the widow was based upon a cause of action entirely different from his previous suit for enforcement of his right of preemption of the property sold by the widow and both the claims were incongruous. It has, therefore, no application to the present case.

The case in Payana Reena Saminathan v. Pana Lana Palaniappa (14) 41 I.A. had, for its consideration a provision of the Ceylon''s CPC identical with that of Order 2, Rule 2, Civil P.C., and it was there held that the provisions did not require inclusion in one and the same action of different causes of action.

In Manglathammal v. Virappa Goundan AIR 1919 Mad. 743 plaintiff''s claim, for ejectment of the defendant based upon a contractual relationship of landlord and tenant was held to constitute a different cause of action from ''his claim in the subsequent suit, based upon-his title as one of the heirs of the last male owner, even though his title as heir had accrued at the time of the first suit. Sadasiv Iyer J. concurred in the leading judgment of Spencer, J. with the observation "I am constrained with reluctance to hold that the present suit is not barred by res judicata by the decision in the former suit." The decision of this case was influenced, in a large measure, by the meaning, attributed by the learned Judges to the expression "cause of action" and by the view that they took of the facts in support of two claims being mutually destructive. Sadasiv Iyer J. at p. 817, said that it was to be kept in view whether it was practicable to advance the grounds of attack in the first suit by alleging the facts put forward in the second suit without the evidence adducible in support of them being mutually destructive. There is no controversy, however, that in, the present case the cause of action in both the suits is one and identical and, further, that the evidence, in support of the alternative grounds of attack, was at all, mutually destructive.

Bhagat v. Deoki Nandan Prosad AIR 1918 Pat. 275 has no application to the present case, as explanation (4) of Section 11, Civil P.C. was not invoked and, besides, a suit for recovery of hand note dues and a suit for damages of malicious prosecution were considered to be based upon different causes of action, and, further an issue, whether the hand note is genuine, was different in tenor from the issue whether the said hand note was forged by the plaintiff or had been known to him have been forged within the knowledge of the defendant. Reliance is sought to be placed upon an expression of opinion by Mullick J. that the plaintiff was not litigating under the same title in the first and subsequent suits, but this expression must be understood with reference to the particular facts of that case and should not be considered as laying down a general proposition as to what ''title'' means.

In Pachan v. Kunhandi AIR 1930 Mad. 539 the ground of attack of the subsequent suit bad been pleaded as a ground of defence in the previous suit, but it was left open by the Court. The question of constructive res judieata did not arise for consideration.

In Mahomed Ibrahim v. Hamja Mahomed Ally (11) 35 Bom. 507, it was laid down whether ground of attack or defence in a subsequent suit ought to have been pleaded in the previous suit must depend on the facts of each case. It was, further, held that the test is whether the matters in the two suits are so dissimilar that their union might lead to confusion. On the facts of that particular case, the learned Judges have held that the" matters in the two suits were incongruous and might have led to confusion.

The decision in Ramaswami Aiyar v. Vaithinatha Ayyar (03) 26 Mad. 760, proceeded upon the ground that Section 13 (Expl. II), Civil P.C., 1882, did not require that all different causes of action should be included in one suit and that the requirement that the grounds of attack or defence in the subsequent suits ought to have been the grounds of attack or defence in the previous suit will exclude inclusion of dissimilar and incongruous facts whose union might either lead to confusion or prove mutually destructive.

In Rajani Kanta Saha and Others Vs. Arjun Chandra Chakravarty, , the subsequent suit to eject the defendant on the ground of termination of the tenancy following notice to quit was held not res judicata on account of plaintiff''s failure to obtain a decree of ejectment of the defendant on the ground (i) that the causes of action of two suits were different, and (ii) that the facts in support of the claims in the two suits were incongruous and their combination impracticable.

In Lish v. Lish AIR 1924 Pat. 624, the plaintiff, on account of certain statutory provisions, was considered occupying as two different status or legal characters in legal sense, in the context of the facts of that case, in the two suits under consideration.

In Girdhar Manor Das v. Dayabhai Kalabhai (84) 8 Bom. 174, on the particular facts of that case the majority of the Full Bench held that the causes of action of two suits were different while Melvili, J. dissenting held that there was unity of cause of action in the two suits and hence the second suit was res judicata.

On a review of the authorities, noticed above, it is quite plain that, however much the decisions might differ to all appearances, there is unanimity in the underlying principle to wit on the identical cause of action all different grounds of attack or defence and the whole claim, arising there from, should be pleaded or claimed, as the case may be, provided the facts, to be pleaded and proved in evidence of all the claims and all the different grounds of attack or defence, are not mutually destructive of each other.

As I have shown above, the facts of the present case do not exhibit any such feature and the first suit was based upon the same cause of action as second. The later suit, therefore, is barred by res judicata under the provisions of Section 11 (Expl. IV), Civil P.C. and is also barred by the provisions of Order 2, Rule 2, Civil P.C. In the result, the appeal is allowed, and the plaintiff''s suit is dismissed with costs throughout.

Meredith, J.

I agree.