P.C. Pandit, J.
1. The main question arising in this case is whether the present suit is barred by the principle of res judicata.
2. One Bishan Dass was the owner of the land in dispute. On his death in October, 1945, mutation of his land was entered in favour of Bawa Rattan Dass, who alleged that he was a chela of the deceased. This led to a suit brought by Dhani Ram and Gurbux Singh against Bawa Rattan Dass on 12-12-1945 for a declaration that they were the owners of the property in suit, being the sons of the deceased. On 15-6-1949 this suit was decreed but on appeal by the defendant the decision of the trial Court was set aside on 8-12-1950 and the suit was dismissed.
This decree was confirmed on appeal by the High Court on 29-11-1954. It was held that the plaintiffs were not entitled to succeed to Bishan Dass because the rule of inheritance applicable to this property was from Guru to Chela. A finding was, however, given that Bawa Rattan Dass was not the chela of Bishan Dass, but since the plaintiffs had BO right to succeed to this property, their suit was dismissed.
3. Later on, the Assistant Collector, 2nd Grade, ordered that the possession of the land in dispute be delivered to Bawa Rattan Dass. Since the latter Was Sing to take possession on the basis of this order, the present suit was again filed on 28-4-1955 by Dhani Ram and Gurbux Singh sons of Bishan Dass, against Bawa Rattan Dass for a declaration that they were the owners in possession of the land in dispute and for an injunction restraining the defendant from interfering with the same.
4. A preliminary objection was raised by the defendant that the suit was barred under the provisions of Order 2, Rule 2. and Section 11, Civil Procedure Code, and was not maintainable. It was also alleged that the paintiffs had no locus standi to file the present suit because a similar suit had already been filed by the plaintiffs, which had been dismissed.
5. The following preliminary issues were framed by the trial Court-
1. Has the plaintiff a locus standi to bring the suit?
2. Is the present suit barred under Order 2, Rule 2, Civil Procedure Code?
3. Is the present suit barred by principle of res judicata.
6. The trial Court held that the plaintiffs had locus standi to bring the suit; and that the suit was not barred under Order 2, Rule 2, Civil Procedure Code, but the same was barred by the principle of res judicata. On these findings, the suit was dismissed and the parties were left to bear their own costs.
7. Aggrieved by the decision of the trial Court, the plaintiffs went in appeal to the Senior Subordinate Judge, Ambala. The only point that was argued before the learned Judge was about res judicata. He confirmed the finding of the trial Court on this point and dismissed the appeal with costs. It is against this decision that the plaintiffs have come here in second appeal.
8. After hearing the counsel tor the Parties, I am of the view that this appeal must be dismissed. In the first suit, the plaintiffs claimed ownership of the land in dispute on the ground that they were the sons of Bishan Dass deceased. In the present suit, they are claiming ownership of the suit land on the ground of their being in possession of the same for a very long time. There is no manner of doubt that the right claimed by the plaintiffs in both the suit is the same, though the grounds, on which they are basing their right, are different.
In the first suit filed by them, this ground of possessory title was available to them and they could have easily taken the same at that time. In view of Explanation IV to Section 11, Civil Procedure Code, the present suit would be clearly barred. It was held in Full Bench decision of the Lahore High Court in Mt. Sardaran v. Shiv Lal, AIR 1944 Lah 282, that where the right claimed in both suits is the same, the subsequent suit will be barred as res judicata, though the right in the subsequent suit is sought to be established on a ground different from that in the first suit. This decision was approved by their Lordships of the Supreme Court in Sunderbai v. Devaji Shankar, AIR 1954 SC 82. I am, therefore, of the opinion that the Court below were right in holding that the present suit was barred by the principle of res judicata,
9. Learned counsel for the appellants contended that the plaintiffs were not litigating under the same title in both these suits. In the first suit, they were claiming ownership on the ground of inheritance, while in the second one, in a different capacity, that is, on the basis of possessory title. In my opinion, there is no merit in this Contention. In both the suits, they were claiming ownership of the property for themselves in their personal capacity. In the first suit, the ground of their ownership was inheritance and in the second suit, it was of possessory title. As already mentioned above, the right claimed in both the suits was the same, though the grounds on which the same was based, were different.
10. In view of what I have said above, this appeal fails and is dismissed. But in the circumstances of this case, however, I would leave the parties to bear their own costs throughout.