Gangadhara Rao, J.
1. These appeals are filed by the plaintiffs against the common judgement of Venkatarama Sastry, J., in Appeals Nos. 209/1970, 431/1971, 3/1972 and Transferred Appeal No. 208/1974, and they are disposed of by us by a common judgement.
2. The plaintiffs filed O. S. No. 28/1950 in the Court of the Subordinate judge, Eluru, for partition of the suit properties by metes and bounds into two shares and for allotment of one share to them, and for mesne profits. Originally, they filed the suit against defendants 1 and 2. The defendant in his written statement pleaded that the lands situate in Chilakapadu and D. Muppavaram villages were in possession of the tenant and they were claiming occupancy rights. Thereupon, the plaintiffs impleaded the tenants as defendants 3 to 19 in the suit. During the pendency of the suit the 1st defendant sold the suit properties to the defendants 3 to 52. Consequently the plaintiffs amended the plaint stating that the sales in their favour were subject to the doctrine of Lis Pendens, that those properties also had to be partitioned along with the other properties, and that they were entitled for a decree against them also as prayed for. But the plaintiffs did not pay court fee for recovery of possession of the lands from the tenants.
3. The defendants-tenants filed written statements Contending that the lands were situate in an Estate, that they had acquired occupancy rights and the remedy of the plaintiffs was only to secure compensation.
4. The learned Subordinate judge, Eluru, had observed that the plaintiffs had not asked for delivery of possession of the suit properties from the tenants, and they had not paid court fee in that regard. He, therefore, held that it was not necessary for him to determine the question whether Chilakapadu and D. Muppavaram villages were estates and whether the defendants have acquired occupancy rights in the lands situate in those villages. He held that the plaintiffs were entitled to their half a share in the suit properties described in the plaint schedules A and B, and the 1st defendant us entitled to the other half a share in the properties described in the plaint B Schedule. He found that since the lands in the villages of Chilakapadu and D. Muppavaram were admittedly in the possession of strangers and not in the possession of the co-owner, the lst defendant, the plaintiffs were entitled to only to such possession which they could have had as against the 1st defendant. He also held that whether the plaintiffs were entitled to ask for actual division of the properties by metes and bounds would have to be considered separately in the final decree proceedings. Accordingly, he passed a preliminary decree. Questioning that decree, the plaintiffs filed A.S. No. 383/1956 in this Court. They also filed a petition to amend the plaint claiming possession of the lands from the tenants after evicting them. It was argued in the appeal that the learned Subordinate Judge should have decided the question whether they were estate villages and whether the tenants had acquired occupancy rights in the lands. It was also contended that the learned Subordinate Judge should have gone into the validity of the various alienations effected in favour of the tenants during the pendency of the suit. The appeal and the petition for amendment of the plaint were heard together. By the date the Settlement Officer has issued pattas to some of the tenants and they were filed in this Court. A Division Bench of this Court consisting of Umamaheswaram and Syed Qamar Hasan, JJ., by their Judgement dated 20th Jan. 1961 held that whether the tenants were the lawful ryots or not was a matter to be decided by the Settlement Officer, and suit as against the tenants was not maintainable after the Estate was taken over under the provisions of Madras Act XXVI of 1948. In the result, they dismissed the appeal with costs of the tenants. They also dismissed the petition for amendment of the plaint.
5. Subsequently, the plaintiffs filed the present suits in the court of the Subordinate Judge, Eluru against the tenants for partition of the plaint schedule lands into two equal shares and for delivery of possession of one such share to them after ejecting the defendant from the lands and for recovery of profits, past and future. The tenants-defendants contested the suit stating, inter alia, that the suits were barred under O.2 R. 2 C. P.C. because the plaintiffs did not seek the relief of possession against them in the previous suit, O. S. No. 28/1950. They also contended that the suits were barred by res judicata under S. 11 of C. P. C. because the plaintiffs could have asked for this relief in the earlier suit and also because of the judgement of this Court in A. S. No. 383/1956. The learned Subordinate Judge, Eluru, did not accept the contentions of the defendants and decreed the suits. Questioning those decrees the defendants filed Appeals Nos. 431/1971, 209/1970, 3/1972 and Transferred Appeal No. 208/1974. Venakatrama Sastry J. held that the suits were barred under Order 2 Rule 2 C. P. C. consequently, he reversed the judgement of the learned Subordinate Judge and allowed the appeals. Questioning the judgement the plaintiffs have filed these appeals.
6. It is submitted by the learned counsel for the appellants that the cause of action in O. S. No. 28/1950 and in the present suits are different, the facts are different and therefore, O. 2, R. 2. C. P. C. does not come into play. We do not agree. The plaintiffs have impleaded the defendants-tenants in the earlier suit on the objection taken by the defendants 1 and 2 . Subsequently, the 1st defendant had sold the suit properties during the pendency of the suit to the defendant tenants thereupon, the plaintiffs once again amended the plaint and contended that the sales were hit by the doctrine of lis pendens and those properties also should be partitioned along with other properties. They further submitted that the defendants had no right to remain in possession of the suit properties, and they were entitled for a decree against them also prayed for (vide I. A. No.789/1954, I. A. No. 178/1955 and I. A. No. 1158/1955) But they did not pay the court fee and specifically claim the relief of possession from the tenants. They have filed the present suits for partition and separate possession of the same lands in the hands of the same tenant-defendants, Thus the cause of action in the present earlier suit, after amendment of the plaint. and in the suits is one and the same. The facts constituting the cause action of both suits is also the same. In these circumstances, when the plaintiffs have filed to claim the relief of possession against these defendants in the earlier suit, they are barred from claiming it in the present suits under O. 2, R. 2 C. P.C.
7. O. 2 R. 2 C. P.C. is based on the principle that the defendants should not be twice vexed for one and the same cause. The rule is directed against two evils, the splitting of claims and the splitting of remedies. It provides if a plaintiff omits any portion of the claim, which he is entitled to make any the remedies which he is entitled to claim in respect of the cause of action for his suit, he shall not thereafter sue for the portion claimed or for the remedy is omitted. The rule does not preclude a second suit based on a distinct and separate cause of action. In order to invoke the rule, two conditions must be satisfied; first, that the previous suit and the present suit must arise out of the same cause of action and secondly they must be between the same parties. It is unnecessary to refer to all the decisions. Suffice if we refer to some of them. In Md. Khalilkhan v. Mahubub Ali Mian, AIR 1949 PC 78, Sri Madhavan Nair speaking for the Court deduced the following principles from the decided cases:
1. The correct test in case falling under O.2, R. 2 is 'whether the claim in the new suit is in fact founded upon a cause of the action distinct from that which was the foundation for the former suit.' Moonshee Buzloor Ruheem v Shumsunissa Begum, 1867-11 Moo Ind App. 551: 2 Sar. 259 (PC).
2. The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgement. Read v. Brown (1989-22 Q B C 128: 58 LJ QB120).
3. If the evidence to support the two claims is different, then the causes of action are also different, Brunsden v. Humphrey (1884-14 QBD 14) : 53 LJ QB 476 )(supra).
4. The causes of action in the two suits may be considered to be same if in substance they are identical. Brunsden v. Humphrey (1884-14 QBD 141 : 53 LJ QB 476) (supra).
5. The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the Court to arrive at a conclusion in his favour. Muss.Chand Kourt v. Pratap Singh ((1887-88) 15 Ind App 156 : ILR 16 Cal 98) (PC). This observation ws made by Lord Watson in a case under S. 43 of the Act of 1882 (corresponding to O. 2 R. 2) where plaintiff made various claims in the same suit'.
8. In Gurbux Singh v. Bhooralal, : 7SCR831 , it has been held by the Supreme Court (at P.1812):
' In order that a plea of a bar under O. 2 R. 2 (2) Civil P. C. should succeed the defendant who arises the plea must make out (1) that second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect that cause of action the plaintiff was entitled to more than one relief ; (3) that being thus entitled to more that one relief the plaintiff, without leave obtained from the Court omitted to sue for the for which the second suit had been filed'. In Haridas v. Anath Nath, : 3SCR880 it has been held by the Supreme Court that in a suit if the plaintiff does not obtain relief which he had asked for or abandoned his right to relief, it would not thereafter be open to him to institute a suit for relief which could have been but was not claimed in the earlier suit. It was held that the rule contained in O. 2 C. P. C. applied to the right to claim relief which could have been but had not been asked for in the previous suit must be regarded as res judicata under S. 11 C. P. C.
9. The learned counsel for the appellants has submitted that originally, when the plaintiffs filled the previous suit they could not have asked for possession and, therefore, the cause of action in that suit is different. But, after the defendants have purchased the suit properties during the pendency of the suit, the plaintiffs have amended the plaint impeaching those sales. They have also in fact, prayed for a decree to be given against the defendants. Therefore it is not correct to state that the cause of action in that suit was different.
10. Now we will refer to the decisions relied upon by the learned counsel for the appellants. In Gulkandi v. Prahlad, , the plaintiff had earlier field a suit against his sister (who) was bent upon alienating the properties and to restrain her from doing so. That suit was dismissed for default. Subsequently, his two sister, including Durga, had alienated the family properties. Therefore he filled a suit for declaration of his title and for possession after setting aside the alienations. When it was contended by his sister that suit was barred by virtue of O. 2 R. 2 C. P. C. because of the dismissal of the earlier suit, the Rajasthan High Court held that the cause of action in both the suit was different. We do not see how this decision help the appellants.
11. In Thimmappa v. Gopiamma, AIR 1964 Mys 276, The first instalment of annuity was payable at the end of January, and the second instalment at the end of March every year. On 25-3-1957 the plaintiff filed a small cause suit claiming the portion of the annuity of Jan. 1957. That plaint was returned on the ground that the suit should have been instituted as an original suit. Then it was represented to the proper court and the claim made in that suit was ultimately settled out of the court. Thereafter, the plaintiff filed a fresh suit claiming the portion of the annuity due at the end of march, 1957. That claim was resisted on the ground that it was barred by O. 2 R. 2 C. P. C. Hegde, J., held that on the date when the original suit was instituted the cause of action had not arisen for claiming the March instalment though it had become due by that date. He observed that if the plaintiff had made a claim for the annuity due at the end of March, 1957, the Court could not have given relief till 1-9-1957 i. e. one year after the claim had become due, in view of S. 337 of the Succession Act, and hence, it could not be said that the claim for March instalment made in fresh suit was barred by O. 2 C. P. C. This case also is of no assistance to the appellants.
12.For the reasons already given by us, we hold that suit is barred by virtue of the provisions of O. 2 R. 2, C. P. C.
13. The next question for our consideration is whether the present suits are barred by res judicata. As held by us already the plaintiffs could have sought the relief of possession from the tenants in the earlier suit. Since they did not claim it, the present claim is barred on the ground of constructive res judicata. The plaintiffs have specifically contended in the previous appeal A. S. No. 383/1956 that the village were not estates, that the ryots had not occupancy rights, that the alienations made by the defendants in favour of the tenants were not binding upon them, and the learned Subordinate Judge should have gone into the question of alienations effected in their favour in O. S. No. 28/ 1950. A Division Bench of this Court held that no court fee was paid for recovery of possession from the tenants and the suit against the tenants was not maintainable after the estates were taken over. Thus they have invited a decision from the High Court and having invited it, they cannot again file a suit and agitate the same question. It is clearly barred by res Judicata under S. 11 C. P. C.
14. The learned Counsel for the appellants has submitted that since the question whether the defendants were entitled for occupancy rights was left open in the earlier suit, it does operate as res judicata in the present suit. It is true that that question was left open in the trial Court. But, in the appeal preferred this Court that question was specifically raised and this Court held that the suit against the defendants was not maintainable. Therefore , we reject this contention.
15. No other question was argued before us. Consequently, we dismiss these appeals with costs.
16. Appeals dismissed.