1. This second appeal is brought from an order of the Assistant Judge, Morvi, confirming on appeal the order of the Civil Judge, Junior Division, Morvi, in suit No. 113 of 1954 holding that the suit was barred as res judicata by reason of the decision in a previous suit No. 176 of 1951. The said suit No. 176/51 was instituted by the present plaintiff-appellant Popat Kala for a declaration that the sale of the 'Bheni' in suit made by Bachu Rugnath defendant 1 of that suit in favour of Ghanchi Kasu Hasan, defendant 2 of that suit, was void and did not affect his rights and for an appropriate injunction restraining the defendant from interfering with his possession alleging that the Bheni was owned exclusively by his father Kala Mavji and that the vendor -- defendant 1 had no interest therein. He (plaintiff) also averred that ha was in possession of the Bheni since about 50 to 60 years. The plaintiff and defendants 1 and 2 are near relations. One Mavji had three sons, Kala, Hira and Amba and the plaintiff is Kala's son. Hira has a son Daya who is the present defendant 3. Amba had a son Rugnath and his son is Bachu defendant 1. In the first suit Dahya was not joined as a party-defendant. In that suit the trial Court held that the plaintiff Popat's exclusive title to the Bheni had not been proved but that he was in possession of the said property since about 50 to 60 years, that at the same time defendant 1 Bachu also had no exclusive title to the property and had therefore no right to sell it and that the sale did not confer any interest on the vendee. The trial Court decreed that suit on the ground that the plaintiff was in possession of the property in dispute. Defendant 1 Bachu went in appeal and the Assistant Judge, who heard the appeal, held that the Bheni was not the exclusive property of either the plaintiff or defendant 1 but that it was jointly owned by them and Dahya, Hira and that the sale was therefore valid to the extent of defendant 1's share in the said property and was void and ineffectual as regards the rights of the plaintiff and Dahya Hira in the property and in this view the learned Assistant Judge modified the trial Court's decree. The learned Judge also observed in the course of his judgment that it was not the plaintiff's case that he had become the exclusive owner by adverse possession. The plaintiff filed a second appeal, but to that appeal defendant 2 Kasu Kasan was not joined as a party-respondent. The Saurashtra High Court accepted the findings of the learned Assistant Judge and dismissed the appeal, but in the course of the judgment, it was observed that the plaintiff had not pleaded any case of ownership by adverse possession. Incidentally that second appeal was decided by me. Probably taking his cue from the observations in the said judgments, the plaintiff brought a second suit (out of which the present appeal arises) being suit No. 113 of 1954 against Bachu, Kasu Hasan and Dahya Hira for the same relief, viz., for a declaration that the sale of the Bheni made by defendant 1 Bachu in favour of defendant 2 Kasu was void and not binding on him and for an injunction restraining the defendants from disturbing his possession of the Bheni. The cause of action is stated to have arisen on 7-5-1951 viz., the date of the sale deed above referred to, and this was also the cause of action for the first suit. The claim was resisted on the ground inter alia, that it was barred as res judicata and this plea of the defendants has been accepted by both the lower Courts.
2. Now in the lower Courts it was no doubt contended on behalf of the plaintiff that the parties to the two suits are not the same inasmuch as Dahya Hira was not a party to the suit but that plea is not taken before me and it is conceded that the two suits should be taken as being between the same parties. But apart from it, Dahya is only joined as a formal party in the present suit and no relief is claimed against him and that would also suggest that the parties of both the suits are the same. On the question of the bar of res judicata, it is now an admitted position that the claim to the ownership of the 'Bheni' land was directly and substantially in issue in the former suit and it is also directly and substantially in issue in the present suit. Under Section 11, 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, and the question is whether the ground of attack viz., the title to the Bheni on the footing that the plaintiff has been in possession thereof since 50 or 60 years and has thereby acquired ownership thereof by adverse possession might or ought to have been made a ground in the former suit or not. If it might or ought to have been made a ground of attack in the former suit then it must be deemed to have been a matter directly and substantially in issue in such (former) suit, and even if it was not so made, it would operate as constructive res judicata.
3. Mr. Mankad for the appellant has urged that if this ground had been taken in the first suit, the two pleas would have been inconsistent inasmuch as he could not have urged that he was the owner of the property by initial title and in the same breath to have said that he had acquired title by adverse possession, and therefore the matter could not be said to have been directly and substantially in issue in the former suit. In support of his contention, Mr. Mankad has relied upon Ningaya v. Madivalava : AIR1931Bom187 . That was a case in which the plaintiff had originally sued her sister for possession of a certain property on the ground that she was the exclusive owner thereof having purchased it from one S. That suit was dismissed and she brought a second suit on the ground that her mother was the owner of the property and that both she and B were the heirs and on that footing she was entitled to one-half share in the property. It was held that in the former suit A had sued B treating her as a trespasser and in the latter suit she claimed to be a co-sharer and these pleas could not have been joined together being mutually destructive of each other. But the facts of that case were different from those of the present case, because here the plaintiff claims title to the 'Bheni' as owner and the question whether he has the ownership on the footing of an initial title or on the footing of a title acquired by adverse possession is a mere ground in support of the claim of ownership. Moreover, in Ningaya's ease (A) the suit was for one-half share of the property and not of the entire property. In my opinion it would not be an inconsistent plea to make that the plaintiff is the owner by an initial title or in the alternative that the plaintiff is an owner having acquired title by adverse possession. In both the Cases what is claimed is the title. The decision in Gurusangappa v. Balsingappa : AIR1940Bom311 , also relied upon by Mr. Mankad is equally distinguishable. There the first suit was brought as an owner and was limited to certain reliefs and the second suit was brought as a mortgagee of the same property to enforce the mortgage. Therefore the title in both cases were different and the second suit was therefore rightly held not barred as res judicata.
4. Mr. Shah for the respondents has cited Guddappa v. Tirkappa ILR 25 Bom 189 , in support of his contention that the present suit is barred as res judicata. The facts of that case were that the plaintiffs had in the first suit claimed to recover certain land, alleging that they were the surviving members of the joint family, to which the deceased husband of the defendant belonged, and they claimed as the coparceners of Ningappa, the defendant's husband. That suit was dismissed and the plaintiffs then filed a second suit to recover the same property alleging that on the death of Ningappa they became entitled to the land as reversioners. It was held that the second suit was barred by the provisions of Section 13 of the Civil Procedure Code of 1882 corresponding to Section 11 of the present Code. The learned Chief Justice Sir Lawrence Jenkins reviewed the previous decisions and has held that the plea taken in the second case was not inconsistent with the one taken in the first case that it would have created no confusion and that the plaintiffs could have claimed the relief on the alternative ground that they were the reversioners of the deceased Ningappa. In another Bombay case Rajaram v. Jagannath AIR 1949 Bom 274, the facts were that A brought a suit for a declaration that he owned certain property which was not liable to attachment and sale in execution of a decree against one B by-others. B contended that the sale in favour of A was a bogus sale intended to defraud his creditors but this contention was rejected and a decree was passed in favour of A. Subsequently B brought a suit against A under Section 15D of the Dekkhan Agriculturists' Relief Act alleging that the transaction in favour of A amounted to a mortgage. It was held that the suit was barred as res judicata, the view taken being that the decree in the previous suit was inconsistent with the defence which ought to have been raised, that the defence must be deemed to have been, raised and finally decided and that the second suit must be held as barred by res judicata.
5. The decision in ILR 25 Bom 189, was followed by the Madras High Court in Muhammad Rowther v. Abdul Rahman Rowther AIR 1923 Mad 257 , the facts of which case were somewhat similar to those of the present case. The first suit was for possession as owner on the strength of the plaintiff's title by purchase, and the second suit was also for possession of the same property on the strength of the plaintiff's title as owner by inheritance. In both the suits the plaintiff was litigating under the same title, namely, his ownership. It was held, that he should have combined the two claims in the first suit and, that the joining together of the two claims, the one under the purchase and the other as heir, would have led to no confusion: or embarrassment. The decision in ILR 25 Bom 189 was also followed in Maung Ba Thaw v. Ma Hnit AIR 1923 Rang 122. There the two suits were instituted in the same Court and the parties and the subject matter of both the suits were the same. In the first suit the plain-tiff claimed title to the property as having been given to him by his deceased father. In the second suit he sued as the 'orasa' son of his deceased father and his mother claiming half share in the same property. Applying the test laid down in ILR 25 Bom 189 , viz., are the matters so dissimilar that their union might lead to confusion, it was held that the plaintiff ought to have made the claim, which he made in the subsequent suit, as a ground of attack in the former suit and for this reason the subsequent suit must be held to be res judicata. It was pointed out that where the plaintiff claimed title to certain property, then in proving his title to that property ho ought to have put forward all means of attack in his armoury. Applying the same test here, the claim that the plaintiff was the owner of the 'Bheni' in dispute by initial title and the claim that he had become owner thereof by adverse possession are not so dissimilar that their union might lead to confusion. The two pleas were not inconsistent and the claim now made might and ought to have been made a ground of attack in the former suit, and this not having been done the present suit must be held as barred by the doctrine of res judicata by virtue of Section 11, Explanation IV, C. P. Code.
6. The appeal fails and is dismissed with costs.
7. Appeal dismissed.