P.K. Mohanti, J.
1. This appeal has been preferred by plaintiff No. 2 in Title Suit No. 64 of 1962 of the Court of the Subordinate Judge, Berhampur.
2. In order to appreciate the respective contention of the parties it is necessary to refer to a short genealogy :--
KARIMI KESAB PODHAN
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Karimi Sridhar Karimi Gura Karimi Karimi Judhisti
Karimi Sridhar and Karimi Judhesti are dead and their lines are extinct. Karimi Gura died in 1957 and his widow Karimi Siromani died on 24-2-1958. Plaintiff No 1 Karimi Kuri is the natural daughter of Karimi Banamali (Plaintiff No. 2), but she claimed to be the adopted daughter of Karimi Gura.
3. The facts which are no longer in dispute may briefly be stated as follows ;--
An area of 13 acres of land out of the suit lands belonged to G. Balaji, the father Siromani. On 9-11-1929 he executed a Will in favour of his wife Bangori vide Ext. 11. Bangori gifted away these properties in favour of her daughter Siromani by a registered deed of gift dated 2-2-1942 -- Ext. 8. Siromani acquired the rest of the suit lands. Bangori died in 1'948. On 23-2-1958 Siromani executed a Will in favour of plaintiff No. 1 Kuri, plaintiff No. 2 Banamali and four others. After the death of Siromani, there was scramble for possession amongst the legatees which led to a proceeding under Section 145, Cr. P. C. The proceeding terminated in favour of defendant No. 1-G Lakhano Podihan on 5-2-1959. Thereafter the plaintiffs 1 and 2 along with two other legatees filed Title Suit No. 10 of 1962 against the defendant No. 1 and six others for declaration of their title under the Will and for partition. That suit was dismissed on 21-8-1962 on the finding that the plaintiffs failed to prove the genuineness of the Will. On 2-11-1962 the suit out of which this appeal arises was filed by plaintiffs Nos. 1 and 2 for recovery of possession with mesne profits. Plaintiff No. 1 claimed title as the adopted daughter of Siromani. Plaintiff No. 2 claimed title as the next heir of Siromani being the brother of her husband.
4. The suit was resisted by defendants 1 and 2, Defendant No. 1-G. Lakhano Padhan claimed to be the adopted son of G. Balaji, the father of Siromani. Defendant No. 2 S. Ratnalu claimed to be the sole heir and successor of Siromani being the granddaughter of K. Balaji, the maternal grandfather of Siromani. Both the defendants denied that plaintiff No. 1 Kuri was the adopted daughter of Siromani. The trial court came to the following findings :--
(i) Plaintiff No. 1 Kuri' was not the adopted daughter of Siromani.
(ii) Defendant No. 1-G Lakhano Padhan was not the adopted son of G. Balaji.
(iii) Siromani acquired title to the properties by virtue of the deed of gift (Exhibit 8) executed by Bangori and that on her death the properties passed to her husband's heir.
(iv) Banamali being the husband's heir of Siromani was to succeed to the suit properties.
But the suit was dismissed on two grounds:--
(a) that it was barred by constructive res judicata as in the earlier suit (Title Suit No. 10 of 1962) he claimed title under Will of Siromani and not as her heir: and (b) it was barred by limitation under Article 47 of the old Limitation Act. The above findings were upheld in the appeal preferred by both the plaintiffs. This second appeal has been preferred by plaintiff No. 2 alone challenging the findings on the questions of res judicata and limitation.
5. I shall first take up the question of res judicata. In the former suit ownership of the lands was claimed by the appellant under the Will of Siromani; in the present suit ownership of the same lands is claimed by 'him on the ground of heir-ship. Cause of action for the subsequentsuit is the same as in the previous suit In the previous suit no claim was made by the appellant that he is the next heir of Siromani being her husband's brother.
6. At this stage it is necessary to read the provisions of Expl. IV to Section 11 of the Civil P. C.
'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.'
What we have first to consider is whether the question of the appellant's title to the property on the ground of heirship could be directly and substantially in issue in the former suit. If it could be, the mere omission on the part of the appellant to make it a ground of attack in the suit will not save him from the bar of res judicata, because what he might and ought to have made a ground of attack in the suit would be deemed to have been a matter directly and substantially in issue in that suit and on account of the ultimate dismissal of that suit, it will be deemed to have been decided against him. The principle of law is that if the plaintiff has several grounds on which he can make his claim in a court of law he could put forth all the grounds on which the can (make his claim. If he has omitted to do so he cannot be permitted to agitate in future. The object of the Expl. IV to Section 11 of the Civil P. C. is to force the plaintiff or defendant to rely upon all the [grounds of attack or defence which were open to him. There are however certain limitations in the application of this principle. If the ground taken in the subsequent suit is destructive of the one taken in the former suit a contention may be raised that though the party might have taken the plea in the former suit it can-not be said that he ought to have done so to attract the application of Expl. IV to Section 11. Where the matters are so dissimilar that their union might lead to confusion, the plea ought not to be taken. But where the ground taken in the subsequent suit can co-exist as an alternative case and the two claims are not mutually destructive, the bar of Expl. IV to Section 11, Civil P. C. will apply.
7. The basis of the claim in both the suits is the ownership of the land and the appellant is litigating under the same title in both the suits. The claim of title under the Will in the first suit and the ground of heirship in the subsequent suit are not so inconsistent as to be destructiveof each other. Therefore, the claim of heirship could have formed an alternative ground of attack in the former suit without creating any confusion.
8. In the case of Emani Venkataramayya v. Lalbibi Saheba, AIR 1935 Mad 90 the facts were that the sons of a deceased Muhammedan mortgaged certainproperties which had belonged to their father, treating them as their own. The mortgagee obtained a decree, brought the properties to sale and purchased the same for himself. The widow of the deceased Muhammedan brought a suit for possession against the mortgagee alleging that the properties had been gifted to her by her husband. But the suit was dismissed. Subsequently the daughters of the deceased Muhammedan filed a suit for partition and in this suit the widow claimed a share as the heir of her husband. It was held that the widow's right to a share in the properties as the heir of her husband was a matter which she might and ought to have made a ground of attack in her former suit and her claim to a share was therefore, barred by res judicata.
9. In AIR 1925 PC 55, (Fateh Singh v. Jagannath Baksh Singh) the facts were that the plaintiffs in a previous suit claimed as presumptive heirs to a widow's estate and their suit was dismissed. They brought another suit based on a claim of family custom of inheritance. It was held that the subsequent suit was barred by res judicata under Exp). IV to Section, C.P.C. since the custom was a matter which might and ought to have been set up in the former suit.
10. In AIR 1923 Mad 257, (Muhammad Rowther v. M. M. Abdul Rahman Row-ther) plaintiff filed a suit for partition of his share in certain lands on the basis that he was a co-owner of the property under a purchase made by himself and his two deceased brothers. But that claim was rejected on the ground that the purchase was not a joint one though one of the deceased brothers was the sole purchaser. Thereafter the plaintiff filed a suit for recovery of his share as one of the heirs of the deceased purchaser. It was held that the subsequent suit was barred under Expl. IV to S 11, Civil P. C because the plaintiff ought to have joined the alternative claim in the previous suit. Relying on a decision of the Privy Council in Kameswar Pershad v. Rajkumari Ruttan Koer, (1892) ILR 20 Cal 79 (PC) their Lordships observed as follows :
'this case shows that if a person has two grounds on which he could base his claim or title to a thing he must bring forward both in the first suit itself and he will be barred from bringing a second suit, unless indeed the union leads to confusion.'
In AIR 1958 Bom 152, (Popat Kala v. Bachu Rugnath) the first suit was for possession as owner on the strength of plaintiff's initial title. The second suit for possession of the same property on the strength of the plaintiff's title as owner by adverse possession was held to be barred by constructive res judicata.
11. It is unnecessary to multiply authorities. The position clearly appears to be that if the introduction of a matter into a suit was necessary for a complete and final decision of the right claimed by the plaintiff therein, it must be deemed to be a matter which ought to have been made a ground of attack in that suit, unless the matter in that and the subsequent suit are so dissimilar that their union might lead to confusion.
12. Mr. R.N. Sinha, the learned counsel appearing in support of the appeal strenuously contended that the bar of constructive res judicata is not applicable to this case as the appellant claimed exclusive title in the subsequent suit whereas in the former suit he had conceded the title of his co-plaintiffs and of two of the defendants who were all legatees under the Will of Siromani. His contention is that where in the former suit some title was conceded to the defendants and in the subsequent suit the plaintiff claimed exclusive title, the bar of res judicata is not applicable. He relied on two decisions the facts of which are clearly distinguishable. No such proposition appears to have been laid down in any of these decisions. In AIR 1944 Lah 282 (FB), (Mt. Sardaran v. Shiv Lal) the former suit was by a person entitled to maintenance. In the subsequent suit she claimed one-sixth share in the property of her father on the ground of inheritance. The first suit was only to establish a charge on the property and the second suit was based on ownership. In these circumstances, their Lordships' held that the plaintiff in the subsequent suit could not be said to be litigating under the same title as in the first suit simply because the property in respect of these two suits have been fought out is the same. Not only are the grounds of title different from those of the first suit but the right itself was dif-ferent, that is, ownership in one case and a charge of maintenance in the other. Therefore, the bar of res judicata did not apply to such a case.
In ILR (1966) Cut 307, (Nanda Penthoi v. Padan Penthoi) the facts were that in a prior suit for partition the plaintiffs of the subsequent suit had averred that under a previous amicable partition all the joint family properties were divided in equal shares and the parties were in separate possession according to their respective shares. The court held therein that as there had been already a partition by metes and bounds the suit was not maintainable. The subsequent suit between the same parties was for declaration of title and confirmation of possession on the allegation that the disputed lands were allotted to the share of the plaintiffs in the previous partition by metes and bounds. So the issue raised in the subsequent suit was whether the disputed lands had been allotted to the share of the plaintiffs in the previous partition by metes and bounds. This was not the issue in the former suit. Thus in both the suits the same title was not litigated. It was accordingly held that the issue involved in the subsequent suit had not been heard and finally decided in the previous suit and the test of res judicata being the identity of title and not of the actual property involved in the two suits, Section 11, C. P. C. has no application in terms.
13. It was contended on behalf of the appellant that the plea taken in the subsequent suit could not conveniently be taken in the former suit as the appellant was claiming title jointly with his co-plaintiffs and some of the defendants. I do not subscribe to this view. The principle of res judicata is not dependent on convenience of parties about taking certain pleas. We have to see whether a certain plea, if taken, would have finally and completely decided the rights of the parties.
14. In the present case the joining together of the two claims, the one under the Will and the other as next their, would have led to no confusion or embarrassment. No doubt, in the former suit the appellant claimed a share in the suit properties along with the other legatees and in the present suit he claims exclusive title. But he cannot by claiming the whole of the property in the present suit get rid of the effect of res judicata. In the previous suit he claimed title under the Will of Siromani. He could have very well said that in case he failed to provethe genuineness of the Will, he was entitled to recover the property from the defendants as the next heir of Siromani. For proving this contention, he had only to prove that after the death of Siromani, there were no other persons entitled to succeed. This evidence cannot be in any way destructive of the evidence which he had to produce for proving the genuineness of the Will. It was therefore his duty to join both the grounds of attack in the previous suit and he could not have reserved the other ground for future. As he failed to do so, the second suit is barred by the principles of res judicata.
15. Now the next question for consideration is whether the suit is barred by limitation. Art 47 of the Indian Lim. Act, 1908 provides a period of limitation of three years from the date of the final order under Section 145, Cr P. C. The plaintiffs had therefore to bring a suit based on title within three years from the date of the final order. The final order was passed on 5-2-1959 (vide Ext. B) and the suit out of which this appeal arises was instituted in November, 1962, that is long after the expiry of the period of limitation. It was 'however contended by the appellant that all the properties claimed in the suit were not the subject-matter of dispute in the proceeding under Section 145, Cr. P. C. In the memo of appeal the appellant gave a list of properties which were not the subject-matter of dispute in the proceeding under Section 145, Cr. P. C. Subsequently, after verification with the order of attachment (Ext. 4) passed by the learned. Magistrate in the proceeding under Section 145. Cr. P. C. the appellant amended the memo of appeal and appended thereto a list of the properties which were not the subject-matter of dispute in the proceeding under Section 145, Cr. P. C. It appears that the properties mentioned in the Schedule attached to the amendment petition dated 25-9-1976 were not the subject-matter of dispute in Section 145, Cr. P. C. proceeding. So the suit will not be barred by limitation so far as these properties are concerned, but the suit so far as it relates to the rest of the properties is clearly barred by limitation.
16. In view of my earlier finding that the suit is barred by constructive res judicata this appeal fails and is dismissed with costs. The decisions of the courts below are affirmed. Prayer for leave to appeal is refused.