JUDGMENT
1. This suit for possession of certain lands is dismissed on the ground that it is barred by the institution of a prior suit, Original Suit No. 208 of 1907. In that suit, which was brought by the same plaintiffs against the same defendants, the plaintiffs prayed only for a declaration of title. It was dismissed because the plaintiffs were found entitled to possession.
2. The title alleged by the plaintiffs in both the suits is undoubtedly the same. The first suit for declaration was brought on the ground that it was necessary to remove some cloud on the plaintiff’s title. The facts which it is necessary for a plaintiff to allege in a suit for declaration are not the same as those in a claim for possession. In the declaratory suit there was no interference with possession alleged, and it was not necessary to allege the same. In the suit before us title and deprivation of possession are alleged. The causes of action in the two suits are different. To determine whether the suit is barred and the cause of action is the same, we have to look to the plaint or the facts relied upon to constitute the cause of action in the first suit; and if on those facts it was open to him to ask for the relief prayed for in the second suit, the latter would be barred. It is only when the cause of action is the same that Order II, Rules 1, 2 and 3 bar the suit. This has been settled by numerous decisions of this Court.
3. The Calcutta High Court in Nonoo Singh Monda v. Anund Singh Monda (1886) I.L.R., 12 Calc., 291 following another decision in Jibunti Nath Khan v. Shib Nath Chuckerbutty (1882) I.L.R., 8 Calc., 819 and the Allahabad High Court in Mohan Lal v. Bilaso (1892) I.L.R., 14 All., 512 have decided that a suit for possession in similar circumstances would not be barred. I agree with them. The Subordinate Judge refers to certain decisions of this Court in support of his conclusion that the suit is barred. Ambu v. Ketlilamma (1891) I.L.R., 14 Mad., 23 held that Section 43 does not apply and is therefore not in favour of the respondent. In Narayana Kavirayan v. Kandasami Goundan (1889) I.L.R., 22 Mad., 24 the fact relied upon in the plaint in the first suit, the contract of sale, entitled the plaintiff to possession, the relief prayed for in the subsequent suit. The decisions in Muthu Narayana Reddi v. Rayalu Reddi (1896) 6 M.L.J., 51 and Rangasami Pillai v. Krishna Pillai (1899) I.L.R., 22 Mad., 259 which proceed on the same grounds, may be said to be in favour of the respondent. But the grounds on which they and certain other decisions proceeded were fully considered in Ramaswami Ayyar v. Vythinatha Ayyar (1903) I.L.R., 26 Mad., 760 and disapproved. As to the observations on Section 43 see page 770 and as to Rangasami Pillai v. Krishna Pillai (1899) I.L.R., 22 Mad., 259, see page 777. In a later case, however this case relied upon by the Subordinate Judge was again followed and on account of this conflict, the question was referred to a Full Bench which followed the decision in Ramaswami Ayyar v. Vythinatha Ayyar (1903) I.L.R., 26 Mad., 760 and over-ruled the judgment relied upon by the Subordinate judge Thrikaikat Madathil Raman v. ‘Thiruthiyal Krishnan Nair (1906) I.L.R., 29 Mad., 153; nor is the decision in Naganatha Aiyar v. Krishnamurti Aiyar (1911). I.L.R., 34 Mad., 97 applicable. The scope of Section 43 was not considered there. The previous suit was dismissed by an order which did not mention the section under which it was made, and the learned Judges held that it was dismissed under Section 102 read with Section 157 rather than under Section 158, and the question which they had to consider was whether that dismissal was a bar to the second suit, not under Section 43 but another section of the Code. They had however to consider whether the cause of action was the same, and they held that in the first suit the cause of action was the denial of the plaintiff’s right to the property accruing on the death of Sellathammal, and Sreenivasa taking possession of the property on the strength of the order of the authorities though he claimed that such order of the Government and the action taken under it should not affect his title nor the possession he had by virtue of the leases.” So, the plaint in the first suit disclosed the fact that the plaintiff had been deprived of actual possession. He should have therefore claimed possession. The learned Judges also refer to the judgment of the Judicial Committee in Chand Kour v. Partab Singh (1889) I.L.R., 16 Calc., 98 to the effect that the cause of action refers entirely to the grounds set forth in the plaint.
4. We are of opinion therefore that the decrees of the lower Courts should be set aside, and the Munsif be directed to restore the suit to his file and dispose of it according to law. Costs will be provided for in the final decree.
