S.N. Katju, J.
1. This is a plaintiff's appeal arising out of a suit for joint possession over the land in suit. The plaintiff Kesho Misra alleged that he was the son of Ram Sumer alias Bhabha Misra. The defendant Bholai Misra is the son of Sukhdeo Misra, the brother of Ram Sumer Misra. It was contended on behalf of the defendant that Kesho Misra was not the son of Ram Sumer Misra but he was the son of Bhabha Misra who was a person other than Ram Sumer Misra. It was contended, inter alia, that the suit was barred by res judicata and by the provisions of Order 2, Rule 2, C. P. C.
2. Sometime prior to the institution of the present suit Kesho Misra had instituted a suit under Sections 59/61 of the U. P. Tenancy Act for a declaration that he was the son of Ram Sumer Misra alias Bhabha Misra and was the sole tenant of the land in suit. The suit eventually went to the Board of Revenue which dismissed it on the ground that the plaintiff was not the sole tenant of the land in suit and, therefore, he was not entitled to the relief claimed by him. It was further found that he was the son of Ram Sumer Misra and that as such he was a co-tenant along with the defendant Bholai Misra. The contention of the defendant that the plaintiff was not the son of Ram Sumer Misra was found to be false. It was contended before the Board of Revenue on behalf of Kesho Misra that since it had been found that Ram Sumer and Sukhdeo were brothers and the land in suit was ancestral and the plaintiff was the son of Ram Sumer the suit should not be dismissed in its entirety merely on the ground that the plaintiff Kesho Misra had claimed to be the sole tenant of the land which he had failed to prove. Reliance was placed by the learned counsel for the plaintiff on AH Raza Khan v Nawazish Ali Khan AIR 1943 Oudh 243 and Adhilakshmi Ammal v. Nallasivan Pillai : AIR1944Mad530 , where it was held that
'If a person sues for possession bona fide claiming sole and exclusive rights over the property in suit but is actually found entitled only to a share in the suit property, it is not illegal or unjust to grant a personal decree for the share of the property. A decree for joint possession would not be such alteration of the frame of the suitas to cause any hardship of injustice to the defendant.'
3. The Board, however, repelled the contention of the plaintiff on the ground that since the plaintiff had claimed to be the exclusive bhumidhar of the plots in suit he should not be allowed to turn round and allege that he should be given co-tenancy rights it he was not found to be the sole tenant of the land. The Board, however found that there was evidence to show that Ram Sumer and Sukhdeo held the land jointly and Ram Sumer died leaving the plaintiff Kesho Misra, his son, and hence the plaintiff-appellant should have been the co-tenant of the land in suit along with Sukhdeo.
4. The main question for consideration in this appeal is whether the suit is barred by Order 2, Rule 2, C. P. C. Learned counsel for the plaintiff con tended that the causes of action were not identical and, therefore, the present suit would not be barred by Order 2, Rule 2, C. P. C. Learned counsel for the defendant-respondent urged that the causes of action were identical, and it was incumbent on the part of the plaintiff to have asked for all the reliefs which flowed from the same cause of action, viz., the denial of the right of the plaintiff by the defendant. As early as 1879 a Full Bench of the Court in Darbo v. Kesho Rai ILR 2 All 356 (FB) held that where a plaintiff claimed a declaration of title with respect to the property in suit which was refused a subsequent suit for possession of the same property was not barred. The decision in the aforesaid Full Bench was affirmed by a decision of another Full Bench consisting of five Judges in Sarsuti v. Kunj Behari Lal, ILR 5 All 345 (FB). In that case also there was a claim for declaration which was refused and subsequently a suit for possession was brought. It was observed as follows:
'The principle laid down in Tulsi Ram v. Ganga Ram, ILR 1 All 252 and ILR 2 All 356 (FB) (Supra) appears to me to be applicable to the proceedings now before me; and concurring as I do to the views therein expressed, I am of the opinion that the appellant's plea with regard to Section 18 of the Code tails.'
5. The aforesaid view was further relied on by a Division Bench of this Court in Bande Ali v. Gokul Miser, ILR 34 All 172 The case had come first before Mr. Justice Karamat Husain, who referred it to a Division Bench which observed as follows:
'If we had to decide the question in the absence of authority, we might have some difficulty in dissenting from the view taken by our learned brother. We think, however, that the authorities show that for a long time it has been accepted in this Court and in other High Courts that the dismissal of suits of this nature on the ground that the plaintiff is not or has not proved that he is in possession, is no bar to a subsequent suit for possession. As early as the year 1879, a Full Bench of this Court in the case of ILR 2 All 356 (FB) (Supra) decided that the dismissal of a suit for a declaration of title on the ground that the plaintiff was not in possession, was no bar to a subsequent suit for possession. It is true that the decision in that case was under Section 7 of Act VIII of 1859, and it is also true that thejudgment in that case is a very short one. The same question arose in ILR 5 All 345 (FB) (supra). In that case the majority of a Court consisting of Mr. Justice Straight, Mr. Justice Oldfield, Mr. Justice Brodhurst and Mr. Justice Tyrrell, decided the same way, namely, that the suit was not barred. That also was a decision under Section 7 of Act VIII of 1859.... Again in the case of Mohan Lall v. Bilaso, ILR 14 All 512 a Bench of this Court decided that the dismissal of a suit for a declaration of title on the ground that the plaintiff was not in possession was no bar to a subsequent suit for possession... These cases clearly show that it has been the well-established practice of this Court not to dismiss a suit for possession merely on the ground that a previous suit had been brought for a declaration of title and dismissed on the ground of the plaintiff not being in possession. In the present case the previous suit was a suit for an injunction, and it was dismissed on the ground that the plaintiff was not in possession. In our opinion no distinction in principle can be drawn between the dismissal of a suit for a declaration of title on the ground that the plaintiff was not in possession, and the dismissal of a suit for an injunction on the same ground.'
6. In the present case Kesho Misra, the plaintiff, had brought the earlier suit for declaration of his title in the land in suit which was dismissed and it was held that the plaintiff was a co-tenant along with the defendant. The present suit is a suit for joint possession of the aforesaid land. Following the established practice of this Court not to dismiss a suit for possession on the ground that the earlier suit for declaration had been dismissed it must be held that the present suit is maintainable and is not barred by Order 2, Rule 2 of the C. P. C.
7. The Judicial Committee in Khalit Khan v. Mahboob Ali Mian considered the principles in cases falling under Order 2, Rule 2, C. P. C. and summarized them as follows:
'(I) Whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation for the former suit.
(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 judgment.
(3) If the evidence to support the two claims is different, then the causes of action are also different.
(4) The causes of action in the two suits may be considered to he the same if in substance they are identical.
(5) The cause of action has no relation whatever to the defence that may be set up by the defendant, nor does it depend on the character of the relief prayed for by the plaintiff It refers 'to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.'
8. The aforesaid tests were referred to and adopted by a Division Bench of this Court in Jokhi Ram v Sardar Singh : AIR1955All661 . Applying the aforesaid test to the present case it may be seen it the evidence to support the two claims in the earlier suit and in the present suit by the plaintiff could be saidto be different. In the earlier suit Kesho Misra contended that he was in exclusive possession of the plots in dispute and further contended that the defendant Bholai Misra had nothing to do with the land in suit. In such a case the evidence of the parties could not be the same as it would be in the present case. No question of co-tenancy was raised by one of the party and denied by the other. Therefore, the evidence in the first suit would have nothing to do with the question of co-tenancy which was raised in the present suit by the plaintiff and consequently it would be obvious that the evidence to support the two claims would be different. Again the causes of action in the two suits could also not be said to be the same, in the earlier suit the plaintiff claimed that he was in exclusive possession of the land in suit and sought a declaration to that effect. In the present case, the claim is for joint tenancy and it could not be said that the cause of action for the present claim is the same as it was in the earlier suit.
9. Learned counsel for the plaintiff relied on Shripad v. Sidram : AIR1951Bom167 , Rangasami Goundan v. K.R. Rangai Goundar : AIR1955Mad545 and Ram Lakshman Janki Ji v. Makund Lal Sahu AIR 1949 Pat 358. In the aforesaid cases a distinction was drawn between the existence of cumulative reliefs and alternative reliefs. It was held that
'if the plaintiff is entitled to more than one cumulative reliefs, but sues for only some of those reliefs and does not choose to sue for the remaining reliefs, then his right to sue for the latter reliefs is barred under Order 2, Rule 2. If on the other hand he is entitled to only one relief out of several alternative reliefs and he sues for one of them, his remedy to sue for other alternative reliefs is not barred, for he cannot be said to have been entitled to more than one relief.'
It may be that the plaintiff had alternative reliefs while instituting the earlier suit and along with declaration he could have claimed possession as well but the relief for possession was an alternative relief and not a cumulative relief and it cannot, therefore, follow that the present suit for the alternative relief was barred by Order 2, Rule 2 of the Code of Civil Procedure.
10. Learned counsel for the appellant relied on a Single Judge decision of this Court in Sheo Pher Singh v. Bhola Singh, 11 Ind Cas 87 (All). In the aforesaid case the plaintiff had brought a suit fur exclusive possession of certain property which was dismissed on the ground that on plaintiff's own statement the property was part and parcel of an undivided Mahal. Subsequently, he instituted a fresh suit on the same cause of action praying for a declaration of ownership, for possession of the property and for joint possession if the plaintiff was entitled to that. It was held that the suit was barred partly by Section 11 and partly by Order 11, Rules 1 and 2 of Act V of 1908. The judgment in the aforesaid case proceeded on the ground that the plaintiff in the first suit was entitled to joint possession and he could and ought to have sued for it and, therefore, his fresh suit for that relief was barred.
11. It appears that the decisions of this Court referred to above were not brought to the noticeof the Court hearing the case of Sheo Pher Singh, 11 Ind Cas 87 (All) (Supra). Under these circumstances it is not possible for me to adopt the principle laid down in that case.
12. For the reasons stated above the appeal is allowed and the decision of the Court below is set aside. Since the Court below dismissed the appeal before it on the ground that the suit was barred by Order 2, Rule 2 of the C. P. C. and did not decide the other issues in the case I direct that the case be sent back to the lower appellate Court for being restored to its original number and decided according to law. The costs shall abide by the ultimate result in the case.