JUDGMENT
Krishnan, J.
1. This is an appeal by the defendant against the decree of the Second Additional Subordinate Judge of Madura, in Original Suit No. 56 of 1921, on his file. The only point argued before us by the appellant is that the present suit is barred by res judicata under Section 11, read with Explanation IV, of the Civil Procedure Code. The Subordinate Judge has held that it is not so barred and hence the appeal by the defendant.
2. The plea of res judicata is based on the former suit, Original Suit No. 1 of 1916, brought by the present plaintiff along with the widow and daughter of his deceased brother, one Muthu Mahomed Rowther, against the heirs of one Varisai Rpwther, defendants Nos. 1 to 5 and against the present defendant as the 6th defendant, and against the heirs of his third deceased brother Naina Mahomed Rowther. His case there was that the properties in suit, the title-deeds of which stood in the name of Muthu Mahomed Rowther were purchased by all the three brothers with their joint earnings, benami in the name of Muthu Mahomed and they really belonged to all of them in equal one-third shares. One of the items sued for was a house in Madura Town. Muthu Mahomed had executed a sale-deed regarding it to one Varisai Rowther and after the latter’s death it had been sold by his heirs defendants Nos. 1 to 5 to the 6th defendant and he was in possession. It was alleged by the plaintiff that the sale-deed to Varisai Rowther was a nominal transaction not intended to convey title and, that the 6th defendant had no title either, as he was a purchaser with, notice of the defect of title. The present plaintiff, therefore, claimed a one-third share for himself and plaintiffs Nos. 2 and 3 claimed another third share as heirs of Muthu Mahomed allowing the other one-third to the heirs of Naina Mahomed.
3. The Subordinate Judge who tried the suit found that the property was not the joint acquisition of the brothers but belonged to Muthu Mahomed alone and on that finding he dismissed the plaintiff’s claim. He also found that the sale to Varisai Rowther was a nominal one, and that the 6th defendant obtained no title as he was a purchaser with notice of the infirmity of title of his vendor. He thus gave a decree to plaintiffs Nos. 2 and 3 as the heirs of Muthu Mahomed, but only for a one-third share, as they had not asked for more, although they were entitled to a five-eighths share under the Muhammadan Law of in-heritance on his finding. Plaintiff did riot appeal but the 6th defendant filed an appeal in the High Court. Plaintiffs Nos. 2 and 3 filed a memorandum of objection claiming their five-eighth share in the properties under the Muhammadan Law on the footing that the whole property belonged to Muthu as found by the Subordinate Judge. The High Court dismissed the 6th defendant’s appeal, but gave a decree for five-eighth share to plaintiffs Nos. 2 and 3. They have executed that decree and got possession of that share.
4. It is for the balance three-eighth share of the house in Madura that the plaintiff brings the present suit against the 6th defendant. He now claims as the sole residuary heir to Muthu Mahomed being his sole surviving brother. Defendant contends that the plaintiff “might and ought to have” claimed this relief in the alternative in the previous suit and, not having done so, he is barred by Section 11 read with Explanation IV from claiming it again.
5. The previous suit was so far as the present defendant is concerned, a suit for his ejectment from the sued house on the ground that he had no valid title to it, or in other words that, he was a trespasser : and it was based upon plaintiff’s title as owner by joint purchase with two others. The prayer for partition was only against the heirs of his brother. It did not concern the present defendant. It is conceded that in that suit plaintiff might have put forward his claim to ownership by inheritance as heir to Muthu Mahomed as an alternative claim. In fact though the case of the plaintiffs Nos. 2 and 3 was also one based on Muthu Mahomed being entitled to only & third share as joint purchaser, they were given a decree for their five-eighths share in the Whole property on the footing that it belonged solely to Muthu Mahomed. Plaintiff could have got relief on the same footing in that suit if he had put forward his claim as Muthu Mahomed’s residuary heir.
6. The question then is, whether he “ought” to have put his present claim forward in the suit. The ruling in Woomatara Debea v. Kristokaminee Dossee 11 B.L.R. 158 : 18 W.R. 163 is in point, where their Lordships of the Privy Council held that a suit to recover property on the ground that it was part of plaintiff’s Taluk was barred by a previous suit for the same land on the ground that it was tanifir land, or land which was obtained by adverse possession, as the two claims should have been combined in the first suit. In the case before us the first case was for possession against the defendant as owner on the strength of plaintiff’s title by purchase, the present case is again for possession oh the strength of plaintiff’s title as owner by inheritance. In both cases plaintiff is litigating under the same title, namely, his ownership. He should, therefore, according to this ruling, have combined the two claims in the first suit.
7. In that case their Lordships followed an earlier ruling of theirs in Srimut Rajah, Mootoo Vijaya Raganadha Bodha Goorooswamy Periya Odaya Taver v. Katama Natchiar 11 M.I.A. 50 : 10 W.R.P.C. 1 : 2 Sar. P.C.J. 212 : 20 E.R. 20, where in the first suit the party rested his title upon the property being the separate property of the Zemindar,, Whereas in the second suit he claimed title under a Will. That plea was held to be barred.
8. The case in Woomatara Debea v. Kristokaminee Dossee 11 B.L.R. 158 : 18 W.R. 163 was referred to in Ramaswami Ayyar v. Vythinatha Ayyar 26 M. 760 at pp. 774, 775 : 13 M.L.J. 448. The learned Judge, while distinguishing it from the case before him, which was one of redemption of a mortgage different from the one sought to be redeemed in the first case, though on the same property, observes that the suits in Woomatara Debea v. Kristokaminee Dossee 11 B.L.R. 158 : 18 W.R. 163 were “both suits based upon plaintiff’s title as owner” and that “the case is an authority only for the position that if one is dispossessed of land and brings a suit to recover possession on the strength of his title, he must establish his title in that very suit by urging and proving all that would go to establish his title and cannot reserve one or more of such grounds for a future suit; and this is what is laid down in Explanation IV to Section 13, Civil Procedure Code, 1882, which is the same as Explanation IV to Section II of the present Code. Even taking this restricted view of the scope of the decision without deciding whether it is correct to so restrict it, it appears clear that thepresent case falls within it and is covered by the Explanation. The Privy Council again held in Kameswar Pershad v. Raj Kumari Ruttan Koer 20 C. 79 : 19 I.A. 234 : 6 Sar. P.C.J. 241 : 10 Ind. Dec. N.S. 53 (P.C.) that a suit to enforce a charge on property barred a second suit for the same amount on a personal covenant to pay under the same agreement. Their Lordships say that “the question whether the second claim ought to have been put forward in the first case depends on the particular facts of each case. When matters are so dissimilar that their union might lead to confusion, the construction of the word “ought” would become important; in this case matters were the same. It was only an alternative way of seeking to impose a liability upon Run Bahadur, and it appears to their Lordships that the matter “‘ought’ to have been made a ground of attack in the former suit.” This case shows that if a person has two grounds on which he could base his claim or title to a thing, he must bring forward both in the first suit itself and he will be barred from bringing a second suit, unless, indeed, the union leads to confusion. In the case before us the joining together of the two claims the one under a purchase and the other as heir would have led to no confusion or embarrassment. If plaintiff failed to prove the joint purchase he alleged, the property must have necessarily been taken to be Muthu Mahomed’s as the deed was in his name and as the defendant claimed title through him for his alternative claim he would then have to prove only that he is a residuary to get relief on that ground. In either case the invalidity of the 6th defendant’s title must be proved so that the addition of the alternative case will have led to no confusion at all and no embarrassment to plaintiff in leading his evidence.
9. The case in Kameswar Pershad v. Raj Kumari Ruttan Koer 20 C. 79 : 19 I.A. 234 : 6 Sar. P.C.J. 241 : 10 Ind. Dec. N.S. 53 (P.C.) was followed by their Lordships again in Moosa Goolam Ariff v. Ebrahim Goolam Ariff 16 Ind. Cas. 70 : 40 C. 1 : 16 C.W.N. 937 : 23 M.L.J. 215 : 16 C.L.J. 642 : 14 Bom. L.R. 1211 : 12 M.L.T. 449 : 5 Bur. L.T. 211 : (1912) M.W.N. 1097 : 10 A.L.J. 486 : 6 L.B.R. 119 : 39 I.A. 237 (P.C.). Thus, it would seem clear on the authority of the Privy Council ruling that the plaintiff should have put forward all his grounds of attack to recover the suit house from the defendant and, not having put forward his claim based on his right of inheritance in the former suit, he is now barred from doing so. The fact that plaintiff claimed in the first suit a one-third share by partition whereas now he claims a specific three-eighths share which alone is left with the defendant, the balance having been recovered from him by Muthu Mahomed’s widow and daughter, can make no difference to the application of the rule of res judicata, for, according to both his claims, the defendant had no right to any portion of the property, he being a trespasser. A plaintiff cannot by claiming a larger or a smaller share in the same property than in his first suit get rid of the effect of res judicata against him. In both cases the relief against the defendant is to recover possession from him of the whole or part of the same property.
10. Besides the above-mentioned authorities, the appellant cited Masilamania Pillai v. Thiruvengadam Pillai 31 M. 385; Gariya Rangasuamy Patrudu v. Majji Appalaswamy 34 Ind. Cas. 456 : (1916) 1 M.W.N. 286 and Guddappa v. Tirkappa 25 B. 189 : 2 Bom. L.R. 872. The respondent, on the other hand, has quoted a number of cases where it was held that the second suit was not barred but I think it is not necessary to discuss them all. It is not possible to reconcile all the cases; but it may be conceded that a plaintiff is not bound, under Order II, Rule 2, to join in one suit all the causes of action he had got against the defendant; but that principle is not one applicable to the question before’ us which refers to a plaintiff’s duty to bring forward all the grounds of his attack in support of the title that he is’ litigating. Reference must, however, be made to two of, the cases relied on by the learned Vakil for the respondent, Ramaswami Ayyar v. Vythinatha Ayyar 26 M. 760 at pp. 774, 775 : 13 M.L.J. 448, a decision of this Court and Saminatkan Chetty v. Palaniappa Chetty 26 Ind. Cas. 228 : 41 I.A. 142 : 18 C.W.N. 617 : 17 New Law Reports 56 : 83 L.J.P.C. 131 : (1914) A.C. 618 : 110 L.T. 913 (P.C.), a decision of the Privy Council in an appeal from Ceylon. In the former case it was ruled that the dismissal of a suit to redeem one mortgage did not bar a subsequent suit to redeem another mortgage on the same property. I agree with this decision, as the two suits are different from one another being based on two different contracts. The title or rural relationship in the two litigations are different as the terms of the two mortgages which regulate that relationship are different. But I do not wish to be understood as agreeing to all the observations in that judgment. That case is really an illustration of the rule that a plaintiff is not bound to combine different causes of action in the same suit and does not apply here.
11. The Privy Council case cited is Saminatkan Chetty v. Palaniappa Chetty 26 Ind. Cas. 228 : 41 I.A. 142 : 18 C.W.N. 617 : 17 New Law Reports 56 : 83 L.J.P.C. 131 : (1914) A.C. 618 : 110 L.T. 913 (P.C.). The 61st suit was oh certain promissory-notes, which failed the notes were found to have been materially altered. The second suit was for money due under a certain award or settlement for which the notes had been given. The question considered in that case was not one of res judicata but whether a second suit was barred by reason of Section 34 of the Ceylon Procedure Code, corresponding to Order II, Rule 2 of our Code. Their Lordships held that the claim on the notes and the claim on the original: consideration under the award or settlement, were quite independent claims and constituted “two inconsistent and mutually exclusive causes of action” and, therefore, the second suit did not offend against the section quoted. No question of the kind before us was raised and we cannot, therefore, treat it as an authority on that question.
12. For the above reasons I hold that the present, suit is barred by Section 11, Explanation IV, Civil Procedure Code, and must be dismissed. I allow the appeal and dismiss the suit with defendant’s costs throughout.
Ramesam, J.
13. The facts are fully stated by my learned brother.
14. The decision depends on a construction of the words “litigating under the same title,” taken with Explanation IV in Section II, Civil Procedure Code. As a large number of decisions; including those of the Judicial Committee, are available as guides, it is futile to attempt to work out the details in the application of the section by the mere consideration of the words of the section. On an analysis of the decisions cited before us, the following propositions may be gathered from them (without attempting to generalise):
{i) Where the creditor (hypothecatee) of a Hindu widow claimed to recover the debt from a reversioner who got into possession of the estate through a surrender by the widow, a claim based on that ground or on express covenant at the time or surrendering, to pay the debt, is barred by a prior suit to recover the identical debt where it was based on the ground that it was beneficial to and binding on the reversioner Kameswar Pershad v. Raj Kumari Ruttan Koer 20 C. 79 : 19 I.A. 234 : Sar. P.C.J. 241 : 10 Ind. Dec. N.S. 53 (P.C.).
(2) Where the first suit was to redeem one mortgage it does not bar a suit to redeem a mortgage of a different date though the property sought to be redeemed and the principal amount of the mortgage are identical: Ramaswami Ayyar v. Vythinatha Ayyar 26 M. 760 at pp. 774, 775 : 13 M.L.J. 448; Veerana Pillai v. Muthukumara Asary 27 M. 102 and Thrikaikat Madathil Raman v. Thiruthiyil Krishnen Nair 29 M. 153 : 110 M.L.J. 48.
(3) Where the first suit was based merely on the relationship of landlord and tenant between plaintiff and defendant (and not on plaintiff s title as owner or otherwise) A second suit based on title is not barred: Mangalathammal v. Veerappa Goundan 52 Ind. Cas. 813 : (1919) M.W.N. 287.
In the first case the claimant litigates under the same title but not in the second and third cases.
(4) Where the plaintiff sought to recover the property as owner, a second suit to recover the same property also as owner is barred, even though the details for the ownership are different from those in the first.
15. It is scarcely necessary to add that in cases 1 and 4 the facts which are the basis of the second suit must have existed at the time of the first suit to attract the bar of res judicata, The fourth proposition is supported by Woomatara Debea v. Kristokaminee Dossee 11 B.L.R. 158 : 18 W.R. 163; Moosa Goolam Ariff v. Ebrahim Goolam Ariff 16 Ind. Cas. 70 : 40 C. 1 : 16 C.W.N. 937 : 23 M.L.J. 215 : 16 C.L.J. 642 : 14 Bom. L.R. 1211 : 12 M.L.T. 449 : 5 Bur. L.T. 211 : (1912) M.W.N. 1097 : 10 A.L.J. 486 : 6 L.B.R. 119 : 39 I.A. 237 (P.C.); Guddappa v. Tirkappa 25 B. 189 : 2 Bom. L.R. 872; Masilamania Pillai v. Thiruvengadam Pillai 31 M. 385 and Gariya Rangaswamy Patradu v. Majji Appalaswamy 34 Ind. Cas. 456 : (1916) 1 M.W.N. 286.
16. In my opinion the decision in Subrahmaniam Chelti v. Authinarayana 26 M. 760 at pp. 774, 775 : 13 M.L.J. 448, Second Appeal No. 1606 of 1914 and Second Appeal No. 1391 of 1917 (unreported) are inconsistent with Woomatara Debea v. Kristokaminee Dossee 11 B.L.R. 158 : 18 W.R. 163. I also agree with Seshagiri Aiyar, J.’s dissent, in Gariya Rangaswamy Patrndu v. Majji Appalaswamy 34 Ind. Cas. 456 : (1916) M.W.N. 286 from the remarks at page 779 of Ramaswami Ayyar v. Vythinatha Ayyar 26 M. 760 at pp. 774, 775 : 13 M.L.J. 448.
17. In the application of the fourth proposition it must be remembered that the claim in the second suit must be either substantially identical with or part of the claim in the first suit.
18. Coming to the present case, can there be any difference for the purpose of res judicata merely because (1) the share claimed by the plaintiff in the present is three-eighth and that in the former case was one-third and (2) there was a claim for partition in the first suit and none now? I think not. In the first place, the share to which plaintiff was entitled in the former suit on the footing that all the three brothers originally acquired the property was not one-third but one-third plus three-eighths of one-third or eleven-twenty-fourths, the plaintiff being entitled to the extra one-eighth by reason of succession from the second brother. Though the result of this succession was overlooked in so far as the two-thirds claimed by all the three plaintiffs in the former suit were concerned, it was a claim for, ejectment against the present defendant whether the two-thirds consisted of one-third belonging to 1st plaintiff and one-third to 2nd and 3rd plaintiff or eleven-twenty-fourths to 1st plaintiff and five-twenty-fourths to 2nd arid 3rd plaintiffs. The fact that a partition was asked for because the heirs of the first brother did not join as co-plaintiffs was a mere accident and does not change the character of the suit.
19. The share now claimed (viz., three-eighths) by the plaintiff was certainly less than the eleven-twenty-fourths to which he was entitled at the time of the former suit (even on the allegation of acquisition by all the three brothers) though by an oversight as to the results of the death of the second brother, his title was described as that to a third; and it certainly overlaps substantially the claim actually made. If the shares are identical though there is no claim for partition in the second suit, it cannot be said that the second suit is not barred and the non-identity of the shares is a mere accident and can make no difference for the application of the principle. In Balbhaddar Nath v. Ram Lal 26 A. 501 : 1 A.L.J. 228; Shivram v. Narayan 5 B. 27 : 3 Ind. Dec. (N.S.) 19 and Konerrav v. Gurrav 5 B. 589 Ind. Dec. (N.S.) 388, the plaintiff’s right as co-owner using the term generally was admitted in the first and only the fact of a partition resulting in plaintiff’s right to a specific plot was in dispute. In the interval between the two suits, he continued to be co-owner and the second suit for partition was not barred. In Nilo Ramchandra v. Govind Ballai 10 B. 24 : 5 Ind. Dec. (N.S.) 399 a suit for vatan property) some of the defendants in the first suit admitted plaintiff’s right though not the one who was the contesting defendant in the second suit. In Thandavan v. Valliamma 15 M. 336 : 2 M.L.J. 130 : 5 Ind. Dec. (N.S.) 586 and Dhanapala Chetty v. Anantha Chetty 18 Ind. Cas. 973 : 24 M.L.J. 418 : 13 M.L.T. 305 : (1913) M.W.N. 322, the first suit was for a declaration and there was neither identity of suit nor identity of issue as the validity of the Will in one case and the construction of the Will in the second were not in question in the first suit. In Allunni v. Kunjusha 7 M. 264 : 8 Ind. Jur. 135 : 2 Ind. Dec. (N.S.) 768, the Kamavan had not exercised his right to resume as Kamavan at the time of the first suit. In Second Appeal No. 1391 of 1917 if the plaintiff’s right to his own undivided share was admitted in the first suit, that decision would have been distinguishable like Vengapayyan v. Karimpanakal Parvati 26 M. 501 and the cases in Konerrav v. Gurrav 5 B. 589 : 3 Ind. Dec. (N.S.) 388. As it is, I am not able to agree with it. It cannot be said either in Second Appeal No. 1391 of 1917 ox in the present suit that if the second claim was made alternatively in the first suit, the first suit would have been bad for misjoinder of parties and of causes of action either under the present Code or of the old Code. In the result, I agree with my learned brother that the plaintiff’s suit should be dismissed with costs throughout.
