JUDGMENT
Subrahmania Aiyar, J.
1. The plaintiffs in the present suit had brought a previous suit O.S. No. 510 of 1898 on the tile of the District Munsif’s Court of Madura, against nine persons inclusive of the first two defendants in the persent suit who were the 8th and 9th defendants therein, The plaint in that suit, in effect stated that on the 9th august 1864, Suppan Asari, fatner of the plaintiffs in that suit, had for the sum of Rs. 245, stipulated to be re-paid in 3 years, obtained from Palani Kumaru Pillai, grandfather of the then 1st and 3rd defendants and father of the 2nd defendant’s husband and Muthu karuppa Pillai, father of the then 4th and 5th defendants, a mortgage of the lands now in dispute, which had vested in the mortgagors to the exclusion of third brother, the then 6th defendant, father of the 7th defendant, and after certain other averments, to which reference will be made later on, prayed for a decree for re-payment of the mortgage amount, as well as of certain other sums subsequently advanced on the condition that they were to be re-paid along with the mortgage amount, and for an order for sale of the mortgaged property.
2. That suit was eventually, so far as appears, dismissed on the ground that the alleged mortgage was a purely usufructuary mortgage which contained no covenant to pay and that being so, no suit for the money or for the sale of the land could be maintained.
3. In the present suit the plaintiffs refer to their alleged title to the lands in question as mortgagees, much in the same terms as in the previous plaint and proceed to state that the present 1st defendant (eighth formerly) though let into possession as a tenant by the plaintiffs is setting up title in himself and (hat he and the 2nd defendant (ninth formerly) who got possession through him refuse, to surrender the land ; and pray for a decree for possession of the lands and mesne profits The plaint slates as an alternative ground for the reliefs claimed that, even should the plaintiffs fail to make out the letting alleged, they are entitled to recover on their title as usufsuduary mortgagees under the said instrument of the 9th August 1864.
4. The lower appellate Court has held that the present suit was not barred by the previous suit.
5. On behalf of the appellants (1st and 2nd defendants) this conclusion was impeached, it being urged that the suit was barred under the provisions of Section 43, Code of Civil Procedure, or Section 13, Explanation 11 or both.
6. The law as to questions of bar under these provisions was in S.A. No. 777 of 1901 (decided very recently) discussed at great length, and all the previous important authorities bearing on the subject were fully reviewed and examined, and I need only say that I entirely concur in the conclusions arrived at therein. Though I did share in the view that some of the observations of the Judicial Committee in Ramaswara Pershad v. Rajkumari Ruttan Koer I.L.R., 20 C 79 warranted the notion that explanation II to 13 of Civil Procedure Code had introduced a change in the law of res judicata in so far as the plaintiffs were concerned, so as to make it incumbent on them to make every cause of action relating to the property in litigation and existing at the time of the suit, a ground of attack, the result of such a course was likely to lead to confusion and whatever may be the correct interpretation to be put upon the language of the judicial Committee in the above case had it stood by itself yet, having regard to other pronouncements by the same tribunal reaffirmed subsequently to the said decision, such notion can no longer be taken to be well-founded. Consequently, speaking for myself anything in the language used in the judgment in Arunnachella Chetty v. Meyyappa Chetty I.L.R., 21 M. 91 inconsistent with the view of the law as expounded in the recent decision or this Court above referred to can no longer be treated as of any authority,
7. Turning now to the appellant’s contentions here, there can be no doubt that they are unsustainable. The rights which were the subject of litigation in the suit of 1898 were an alleged right to recover a sum of money on a covenant which, it was found, did not exist and an alleged right accessional to such covenant, viz., a right to an order for sale. These rights are, of course, absolutely different from what are now sought to be made the subject of adjudication, via., the right to eject a tenant and another claiming through him on the ground of the tenants denial of the landlord’s title and the right of a mortgagee to possession under a purely usufructuary mortgage, which latter necessarily negatives a right to recover money on a covenant to pay or to obtain an order for sale. The rights in respect of which the plaintiffs now demand judgment, in other words, the causes of action now sued upon, being thus entirely different from the rights or causes of action to which the previous suit related, Section 43 of the Civil Procedure Code, which simply enjoins that the whole claim arising out of the same cause of action should be included in the suit can have no application. Next, as to the objection raised with reference to Explanation 11 to Section I3, no doubt, in the plaint in the suit of 1898 reference was made, among other things to the possession of the mortgaged lands by the plaintiff, to a letting by them of the lands to the then 8th (present first) defendant, and to the latter denying his alleged landlord’s title and setting up a claim to the property himself. But, though those averments may have been relevant as a reason for the inclusion of the 8th and 9th defendants in the suit in order to get an order for sale binding on them, yet it is manifest that in that suit the plaintiffs could not; on the basis of those averments, have prayed for a decree for possession from the present defendants since that would have been a clear case of misjoinder of causes of action, and consequently the causes of action now relied on were not with reference to the previous suit, “matters which might and ought to have been made grounds of attack” within the meaning of the Explanation II to Section 13 of the Civil Procedure Code, even if the interpretation to be put on Kameswara Pershad’s case were different from that adopted in the recent second appeal above referred to.
8. The present objection on behalf of the appellants fails all the more, since according to the decision of this Court already referred to that explanation does not render it incumbent on a plaintiff to combine as grounds of attack every cause of action he may have at the date of the suit in respect of the property sued for. even if it were possible for the plaintiffs to have, consistently with established rules of pleading, claimed for the present reliefs also in the former suit.
9. The appeal, therefore, in my opinion, fails and I would dismiss it with costs.
Boddam, J.
10. I agree that the plaintiff’s suit is not barred under Section 13 or Section 43, Civil Procedure Code. It is not necessary for me to state the facts of the case, or to do more than state my conclusions as shortly as possible after the very full judgment of Sir Subrahmania Aiyar, J.
11. The cause of action in the former suit was to recover the mortgage amount by sale of the mortgaged premises.
12. The present suit is a suit to recover possession of the land from persons who are in wrongful possession.
13. Although the 1st and 2nd defendants in the present suit were joined as defendants in the first suit, as persons claiming an interest in the land, the present claim formed no part of the cause of action in that suit, nor was it a cause of action upon which the plaintiffs could rely in the alternative or otherwise in support of the relief they sought in that suit. The cause of action in the present suit is totally distinct and different and therefore the suit is not barred. The appeal should be dismissed with costs.
