JUDGMENT
1. The question for decision in this Civil Miscellaneous Appeal is one of res judicata and it arises in the following circumstances: Defendant is the appellant. Plaintiff’s suit is for recovery of one acre of land in Survey No. 479-Q after partition, with past and future mesne profits. This property originally belonged to one Muthu Naidu. He executed a mortgage over one acre of this property in favour of Ayyavu Odayar. Ayyavu Odayar sued on the mortgage bond, got a decree and brought to sale the hypotheca. The plaintiff purchased the property and got possession through Court. He then sued the present defendant in O.S. No. 224 of 1919 describing the property purchased by him as a specific one acre of land in Survey No. 479-Q. The present defendant contested the suit and pleaded that the land was not mortgaged by Muthu Naidu and was not purchased by the plaintiff. It was held in that suit as well as in the appeal that the present plaintiff was not entitled to the western one acre specifically sued for in that suit. The defendant had purchased the entire land at a Court sale held in execution of a money decree which he had obtained against the above mentioned Muthu Naidu. The present suit by the plaintiff is thus to recover possession of one acre of land out of Survey No. 479-Q after effecting a partition and allotting to him that share.
2. It is pleaded in defence that this suit is barred by the rule of constructive res judicata under Expl. 4 to Section 11, Civil Procedure Code, by the decision in the prior suit, O.S. No. 224 of 1919. The learned Subordinate Judge held it was not so barred. We agree with his opinion. O.S. No. 224 of 1919 was a suit to recover a specific one acre based upon plaintiff’s exclusive title to it on the footing of possession and dispossession. It was really based on trespass. The defendant then pleaded that the land which the plaintiff could claim was un-located and undivided. The present suit is one for partition on the footing of joint title and that the shares had not been specified. We do not think that the relief asked for in this suit could have been prayed for in the prior suit on the statement of facts made in it. It appears to us that the set of facts alleged in the present case is inconsistent with the facts which formed the basis of claim in O.S. No. 224 of 1919 and hence it cannot be said that the plaintiff ought to have alleged the same in that suit. Even if he might have done so, in our opinion the grounds of claim alleged in the two suits are so utterly dissimilar that they could not conveniently be put forward and tried in the same suit.
3. The case in Muhammad Rowther v. Abdul Rehman Rowther A.I.R. 1923 Mad. 257, relied upon by the learned vakil for the appellant is clearly distinguishable. The property sued for in that case in both the suits was the same and the suits were also of the same nature. In such circumstances the Court held that an additional ground of claim for the same property cannot justify a second suit and should have been urged in the first suit itself. The same cannot be said of the present case. As we have already stated, the causes of action in the two suits are utterly different and the grounds of claim are so dissimilar that they cannot conveniently be tried in the same suit without confusion. The order of the lower Court is right. We dismiss this Miscellaneous Appeal with costs.
