Kanhaiya Lal, J.
1. The dispute in this appeal relates to a house which was mortgaged along with another house by Najabat Khan in favour of the defendant-appellant and his brother Madho Prasad in 1892. On the death of Madho Prasad his interest devolved on the defendant-appellant. The defendant-appellant brought a suit to enforce his mortgage and got a decree for sale against the present defendants Nos. 2 to 6 as the heirs of Najabat Khan, and in execution thereof he got the two houses aforesaid put up to sale.
2. A suit was then brought by the present plaintiffs-respondents other than Musammat Umda Bibi for a declaration that the house now in dispute was used as an Imambara and was waqf property; that the other house was his exclusive property by inheritance from Fateh Khan, and that neither of those houses was liable to sale in execution of the above decree. That suit was dismissed in regard to the house now in dispute on a finding that it was not proved to be waqf property, but decreed in regard to a share in the other house which was found to be the property of Fateh Khan, the common ancestor of the then plaintiffs and the mortgagor.
3. The present suit has been filed by the same plaintiffs and a lady named Musammat Umda Bibi for the protection of their interests in the house, which was previously described as waqf property, from the impending sale. The Courts below decreed the claim.
4. The first question for consideration is whether the omission of the plaintiffs other than Musammat Umda Bibi to set up the title, now sought to be enforced in the previous suit operates as a bar to the present claim. In the previous suit the then plaintiffs sought to protect the entire house in question on the ground that it was waqf property. They had asserted a right to offer prayers and to perform religious rites therein in their personal capacity as beneficiaries, but the object of the suit was not to protect their personal rights alone but to protect the entire house which they had described as waqf property. In the present suit they seek to enforce their personal interests in the said house as the heirs of Fateh Khan. They had not excluded the present house from their claim in the previous suit. In fact, they were claiming one of the houses mortgaged in their personal rights and seeking to protect the other house now in dispute on the ground that it was a waqf property. Having asserted that the latter was a waqf property, they could not have consistently claimed the same property as their personal property except possibly in an alternative form. They were, however, not under an obligation to adopt the latter course. Section 11 of the Code of Civil Procedure requires that the decision in a previous suit would not be a bar to a decision in a subsequent suit unless the matter in issue was directly and substantally in issue in the previous suit between the same parties or between parties under whom they or any of them claim, litigating under the same title. The title set up in the previous suit was a title based on the property in dispute being treated as waqf property, in which the plaintiffs were interested as much as other persons entitled to offer prayers therein. In the present suit they are claiming a personal title in themselves as the heirs of Fateh Khan. Explanation and of that section provides that any matter which might and ought to have been made a ground of defence or attack in a former suit should be deemed to have been a matter directly and substantially in issue in such suit, but it is not obligatory on a party seeking to protect certain property as waqf property from an impending sale to as sert in the same suit any personal right thereto, to which he may afterwards find himself entitled, in case the property in question is not found to be waqf property. It is immaterial whether they could have joined in the previous suit an alternative claim for the protection of the personal share they are now seeking. There was no obligation to join the two claims and their omission to set up the present title in the previous suit does not, therefore, bar the decision of that matter in the present litigation. As observed in All Moidin Bavidhan v, Elaya-ohanidathil Kombi 5 M. 289 : 6 Ind. Jut. 468 : 2 Ind. Dec. (N.S.) 167, the identity of the the cause of action is immaterial. The right in which relief was claimed in the previous suit was not the same in which the relief is claimed in the present one. The former suit was brought for the protection of what was described as public property. The present suit has been brought for protection of personal or private rights. So far as the house in dispute went, the capacity in which the plaintiffs sued was not the capacity in which they are now suing, and Section 11 of the Code of Civil Procedure has, therefore, no application.
5. The second point for consideration is, whether the claim was barred by adverse possession. It is stated that in 1865 a suifc for partition was brought by one Eahamat All Khan, the predecessor-in-title of two of the plaintiffs, against Najaf Khan and Najabat Khan for partition of his share in the house in question, and a decree was obtained in respect of which no steps were taken to obtain execution. They finding of the Courts below, however, is that, in spite of that omission, the plaintiffs have been in possession of the disputed property and that the mortgagor or his heirs have not been in adverse possession of the same. In the face of that finding, the above contention is without any force.
6. The other pleas taken in the memorandum of appeal have not been pressed.
7. The appeal must, therefore, fail and is dismissed with costs including in this Court fees on the higher scale.
8. Assuming that the present claim might have been made as a claim in the alternative in the former suit, it is perfectly clear to my mind that it ought not to have been so added. The result of combining the two claims would have been this. In the same breath, the plaintiffs would have been under the obligation to adduce evidence that the property had been dedicated and belonged to the Almighty, and in the same breath it would have been obligatory on them to adduce evidence to show that it was nobody else's property but theirs. In claiming the property as their own they would have been obliged to trace how the property descended and what share was theirs. Thus, contradictory issues would have arisen and the trial would have been immensely complicated. It was never, therefore, desirable that the two claims should be combined, This is enough to discredit the plea of res judicata. I agree in the rest of the judgment of my learned brother and in the order proposed.