Ahdur Rahim, J.
1.This appeal is by the plaintiff in Original Suit No. 61 of 1903, against the judgment of the Subordinate Judge of Kumbakonam dismissing the suit. One of the grounds on which the learned Judge proceeded was that the present suit was not maintainable by reason of Original Suit No. 7 of 1892, instituted by the plaintiff against one Srinivasa Iyer, predecessor-in-title of the present defendants having been dismissed by the Subordinate Judge of Negapatam on the 1st November 1892. He holds that the previous suit was disposed of under Sections 157 and 102, Civil Procedure Code of 1882, and the bar arises by reason of Section 103, Civil Procedure Code of 1882. But the learned vakil for the 74th defendant urges that the first suit was decided under Section 158 of the Code, and the present suit is, therefore, barred on the ground of res judicata. The contention on behalf of the appellant is that the dismissal of the previous suit was under Section 102, as held by the Court below, but that the causes of action in the two suits were not the same. If the plea in bar either under Section 103, or by reason of res judicata, is sustainable, it would be unnecessary to go into the question of limitation, the only other question raised in the appeal.
2. The property, to which both the suits relate, consists of certain villages. In the plaint in the suit of 1892, it is alleged that the villages belonged to one Narayanasawmy Aiyar, senior paternal uncle of the plaintiff; that he died about twenty-four years ago and, after his death, the villages remained in the enjoyment of Narayanasawmi's widow Sellathammal; that, on Sellathammal's death on the 30th August 1891, the plaintiff became entitled to, and came into possession of all her properties including the properties sued for, and that the plaintiff leased the latter properties to several persons in September 1891. It, then, goes on to allege that 'on the strength of some opinion entertained by the revenue anthorities, on an enquiry made by them after the said Sellathammal's death, the defendant who has no claim, for the last one month entered upon the undermentioned properties and has been causing disturbance. Besides, he has been causing disturbance to the plaintiff's enjoyment in several ways by frightening and intimidating the plaintiff's lessees and by instituting criminal complaints etc, against them. 'In the 6th paragraph of the plaint, it is stated that' whatever might be the nature of the defendant's claim he had no right whatever to wrongfully enter upon the property remaining in the plaintiff's possession.'And in the 7th paragraph, the cause of action is alleged to arise in January 1892,' when the defendant began to cause obstruction as against the plaintiff's possession.' The relief prayed for is 'perpetual injunction restraining the defendant from interfering with the property remaining in the plaintiff's possession.'
3. The defendant in that suit denied the plaintiff's right to, and possession of the land in dispute, contending that the property belonged to one Anappier, the father of Sellathammal; that on his death without male issue it devolved on his widow Parvathammal, and that on Parvathammal's death Sellathammal succeeded to the property. The defendant claimed that on Sellathammal's death, he inherited the property as the sister's son of Anapian. The three material issues framed in the case were (a) whether the property belonged to Narayanaswamy, the husband of Sellathammal, (b) whether the succession devolved on the plaintiff after the death of Sellathammal and he has been in possession of the property since her death, and (c) whether the plaintiff was entitled to obtain the injunction solely on the strength of his possession without making out title to the property. The issues were settled on the 2nd April 1892, and the lease, was fixed for final hearing on the 26th August, on which date the plaiutiff applied for adjournment on the ground that he had not sufficient time to summon his witnesses, and the hearing was postponed to the nth October. On the nth October only two Out of the 24 witnesses subpaenaed by the plaintiff appeared, but neither the plaintiff nor his pleader appeared on that date. The Court, having waited for some time, passed the following Order:- 'From the issues above mentioned, it will be seen that the plaintiff's claim is completely denied by the defendants. I should therefore dismiss the plaintiff's suit with costs.' An application was subsequently made under Section 103 of the Civil Procedure Code of 1882 to set aside the order of dismissal to the same Judge. He held that the dismissal must be considered to have been made under Section 158 of the Code inasmuch as the case had been adjourned in order to enable the plaintiff to produce his evidence, and he failed to do so, and that therefore the plaintiff had no remedy under Section 103. It is to be noted that the Subordinate Judge does not state that he decided the suit on its merits, which I think he could have done under Section 158. The other course open to him under Section 157, was to dismiss the suit under Section 102 of the Code on the ground that the plaintiff failed to appear. The order dismissing the suit does not mention the section under which it was made. But on reading the order, it would appear to have been made under Section 102, read with Section 157, rather than under Section 158. The Subordinate Judge who heard the application under Section 103, seemed to think that under the circumstances the suit could have been dealt with only under Section 158; but that is apparently a wrong view of the law. The plaintiff did not appear at the adjourned hearing and therefore the case fell within the terms of Section 157--Maharajah of Vizianagaram v. Lingam Krishna Bhupati : (1902)12MLJ473 . I am also inclined to hold, as I have said, that the Subordinate Judge might have dealt with the case under Section 158, if he chose to do so. The view taken in Shrimant Sagajirao v. S. Smith I.L.R. (1895) B. 736 however seems to be that, where the plaintiff does not appear, the suit cannot be decided under Section 158, even though time had been granted at his request for the purpose of producing evidence or perrorming any other act necessary for the further progress of the suit. With great respect to the learned Judges who decided that case I am unable to agree in their construction of Section 158. There is nothing in the language of that section which precludes its application to a case where the plaintiff does not appear. Section 158 generally empowers the Court, under the circumstances mentioned therein, to decide the suit, whether the party at whose instance the adjournment was granted is present or not, at the date fixed for hearing, and the judgment in Shrimant Sagajrao v. S. Smith I.L.R. (1895) B. 736 does not give any reasons in support of a limited construction. It may, however, be that in such cases, the Court ought ordinarily to deal with the suit under Section 157 and not Section 158. Under Section 158 the Court is required, if it chooses to act under it, to go into the questions raised in the action and to decide them on such materials as may be before it. But, as I have said, so far as it appears from the order of the Subordinate Judge in the previous suit, he did not consider the case on the merits, although the suit might have failed because of the inability of the plaintiff to support his allegations by evidence.
4. The question, then, is whether the cause of action in the present suit is the same as that in the suit of 1892 within the meaning of Section 103. In the plaint in the present suit, which is much fuller than the plaint in the other suit, the plaintiff states that the property originally belonged to Anappier who died in 1836 leaving him surviving his wife Parvathammal and his mother Ammalammal; that before his death Anappier authorised his wife to adopt a son; that after the death of Anappier, his widow gave birth to a. posthumous child Sellathammal, and that in 1837 the widow adopted one Ramasami. The property then vested in Ramasami, and Parvathammal looked after it as his guardian, Ramasami, died in 1839 and the property devolved on Parvathammal as his heir and she enjoyed the same till her death in 1841. Then it is alleged one Sundaram Aiyarobtained possession of the property as guardian of Sellathammal and that such possession was adverse to the rights of the proper heirs of Ramasami, and that Sellathammal, when she came of age continued in adverse possession and thus acquired a right as absolute owner,
5. Sellathammal died in 1891, her husband Narayanasami having pre-deceased her in 1868. And the plaintiff says that he being a nephew of Narayanasami succeeded to the property on the death of Sellathammal, who had acquired an absolute right thereto by adverse possession, and he further alleges in the alternative that the property was owned and possessed by Narayanasami adversely to Sellathammal, and in this view of the case also he is entitled to the property on the death of Narayanasami's widow Seliathammal. The plaint goes on to state that whatever right Srinivasa Aiyar, the defendant in the previous suit and father of defendants 1, 2 and 3 in the present case, possessed in the suit properties was extinguished by the adverse possession of Sellathammal and Narayanasami Aiyar. It further states that the Government took possession of the property probably as an escheat, but that eventually on certain misrepresentations being made by Srinivasa Aiyar, the predecessor-in-title of the defendants, the Government wrongfully put Srinivasa Aiyar in possession of the property in December 1891, which the plaintiff says is his cause of action. The main relief he asks for is declaration of his title to these properties and recovery of possession. It will be noticed that in the plaint in the previous suit allusion is made to the same order of the Government which is now alleged to be the cause of action. That order by which the plaintiff was dispossessed in December 1891 was passed before the institution of the previous suit. In the plaint in that suit he admits that the defendant had entered upon the land and was causing disturbance, but he claims that he was in possession by reason of the fact that he had granted leases to several persons before the passing of the order by the Government. It is not now alleged that anything has transpired since the institution of the previous suit in the nature of infraction of the plaintiff's right. What appears to have been the case, from the statements in the plaint in the previous suit, was that soon after the death of Seliathammal, there was the usual scramble for possession between the rival claimants and that the authorities supported the defendant's claim who on the strength of their order, entered upon the possession of the properties; but the plaintiff claimed that he was still in possession. His possession, however, had to be secured and therefore he wanted a perpetual injunction against the defendant on the ground that he was entitled to the property on the death of Seliathammal. Whatever rights he has now to the property accrued on the death of Seliathammal by virtue of his relationship to her husband Narayanasami, and it is the same right which is in dispute in the present action. No doubt in the previous suit he alleged that the property belonged to Narayanasami and that he inherited it on the death of his widow who was in possession for 24 years after Narayanasami's death, while in the present suit he says that either the property belonged to Narayanasami, he having acquired it by adverse possession, or to his widow Sellathammal by virtue of adverse possession against the heirs of Anappier, and that in either case he succeeded to the property on the death of Sellathammal.
6. As I read the plaint in the first suit, the cause of action then was the denial of the plaintiff's right to the property accruing on the death of Sellathammal and Srinivasa taking possession of the property on the strength of the order of the authorities, though he claimed that such order of the Government and the action taken under it should not affect his title nor the possession he had by virtue of the leases. The main question then was: Did the plaintiff acquire a right to the property on Sellathammal's death? And this is made near by the issues framed in the case. It is true that the relief which he asked for then was perpetual injunction, but he could not have obtained that relief unless he was able to establish his title. As observed by their Lordships of the Privy Council, the cause of action has no relation to the character of the relief prayed for by the plaintiff, any more than to the defence which may be set up by the defendants-see Chand Kour v. Partab Singh I.L.R. (1885) C. 98 It has been urged by the learned vakil for the plaintiff that it is not open to us in this connection to travel outside the four coruers of the plaint in order to ascertain what the cause of action was in the previous suit, and he relies in support of this argument on the decision just referred to, where their Lordships observe that the cause of action refers entirely to the grounds set forth in the plaint as the cause of action, or in other words to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. But these observations must be read in connection with the context in which they are made. So read, they only mean that a cause of action is not governed by the nature of the defence which the defendant may set up. I do not think, for instance, that their Lordships intended to lay down that we are precluded, in determining whether the cause of action in the two suits is the same, from referring to the issues which were raised in the first action for the purpose of finding out what the plaintiff had to prove and undertook to prove in order to support his claim as alleged in his plaint. The plaint in the suit of 1892 is extremely concise and vague, and it becomes necessary for the purpose of understanding the scope of that suit to refer to the issues. It has been argued with considerable emphasis that the plaintiff then alleged that he was in possesion of the property although it may be that his allegation was false or founded on misconception. But the plaintiff also alleged in the previous suit that he had a right to the property and that Srinivasa Aiyar in disturbing his possession purported to do so under some claim of right. The suit was not a merely declaratory suit, nor based on mere possessory title, instituted under the special provisions of the Specific Relief Act; the entire scope of the suit was to obtain a decision that the plaintiff succeeded to the property on the death of Sellathammal. The plaintiff has in the present action merely varied the form of relief by asking for the recovery of possession instead of perpetual injunction, which means much the same thing in substance. If the causes of action in the two suits are substantially the same, the mere differences in the form in which they are stated or in the relief prayed for can make no difference in law-see Haji Hasan Ibrahim v. Mancharam Kaltandas I.L.R. (1878) B. 137. Otherwise a plaintiff who has allowed judgment to go against him by default could always get over the disability imposed by Section 103 of the Code by simply manipulating the form of the plaint in a subsequent suit.
7. It is next argued that in the present suit the plaintiff's case is that the property belonged to Sellathammal or to her husband Narayanasami, while his case in the first suit was that it belonged to Narayanasami, and it was not alleged then that it belonged to S?llathammal in absolute right. In both the cases, whether the property belonged to Sellathammal absolutely or to Narayanasami, the plaintiff's title to it is based on his relationship to Narayanasami and arose on the death of Sellathammal. The media therefore, in the language of the Privy Council, on which the plaintiff in either case asks the Court to arrive at a conclusion in his favour, is succession to the property in question on the death of Sellathammal and the denial of such right by Srinivasa Aiyar, the defendant, or his representatives in title. I may refer to a case in Woomatara Debea v. Kristokaminee Dossee (1872) 18 W.R. 163 where the Judicial Committee of the Privy Council had to construe the phrase 'cause of action' as used in Section 2 of the Civil Procedure Code of 1859. The observations made in that case seem to bear closely on the facts of this case. There the plaintiff had in a former suit admitted that no portion of the land then sued for was included in the limits of a taluk as originally settled and defined by the dowel but that she had as taluqdar of that taluq acquired title to it as towfeer, i.e., by gradual squatting or encroachment. It was held in the suit subsequently brought by her that she could not claim to fall back upon the title to the land as included within the limits of her taluq. Their Lordships observe: 'The first question that occurs to their Lordships upon that section is what is meant by the cause of action. And in the present case they are clearly of opinion that the cause of action was the dispossession of the defendant by the fixing of the boundary that is now complained of and the other proceeding in the Act IV case. The result of these proceedings was to affirm the possession of the defendants in the land which was the subject of the first suit and to leave the party who felt aggrieved by them to her remedy by a civil suit.' Then they go on to say: 'Now it is perfectly clear to their Lordships upon the proceedings that the real question in issue to be determined between the parties then was whether the lands then sued for, which included the lands now sued for, belonged as of right to the taluqdar, or whether they fell within lot 32 which belonged to the defendants. And it was open to the plaintiff, the present appellant, in the former suit, to shape her title in either of three ways. She might have said, as she did say, according to Mr. Doyne's argument to-day that the whole of the land then claimed was towfeer land; or she might have said a portion of the land fell within the taluq, as originally settled and formed part of the 7,000 and odd beegas mentioned in the dowl and the residue of it is towfeer laud; or she might have put her case in the alternative and have said that she had a good title to a portion as her original land, but that, should the proof of that fail, that portion also was to be considered as towfeer land. With the full knowledge of ail the circumstances she chose to say: 'I admit that I am in possession of all that I was entitled to under the dowl, but I. claim this land, the whole of it, as towfeer land. 'The contention now is that although she saw fit to take that course then, she has now a right to fall back upon the other title, and to say: 'The boundary was improperly drawn so as to include in the defendant's holding that which of right should have been within my originally settled taluq; and as I now claim in that way that which I might have claimed in the former suit, I am not precluded from bringing this second suit.' It appears to their Lordships that that contention cannot prevail against the clear terms of the section in question, or indeed, upon principle.' Section 2 of Act VIII of 1859 on which the question arose was in these terms : The Civil Courts shall not take cognizance of any suit on a cause of action which shall have been heard and determined by a Court of competent jurisdiction between the same parties or the parties under whom they claim. That lays down a narrower principle of res judicata than Section 13 of the Code of 1882, while the disability imposed by Section 2 of Act VIII of 1859 seems to be the same as that laid down by Section 103 of the Code of 1882 which precludes a second suit being brought on the same cause of action as in the first suit, even though the first suit was dismissed for default of the plaintiff and not heard and determined. In the present case, therefore, the subject of inquiry is the same as was in the case in Woomatara Debea v. Krishtokaminee Dossee (1872) 18 W.R. 163 viz., the identity of the cause of action. Thus, to adopt the language of the Privy Council, it can make no difference in principle how the present plaintiff shaped his title if he was in a position at the time of the suit of 1892 to base his claim on two alternative titles which he has put forward in the present suit. Though Section 13 is not applicable to this case as the previous suit was not heard and finally decided within the meaning of that section, I think Section 42 and Section 43 are clearly applicable. Section 42 lays down that every suit shall, as far as practicable, be so framed as to afford ground for a final decision upon the subject in dispute and so to prevent further litigation concerning them. The real subject of dispute in this case was the title of the plaintiff to the property in question which accrued on the death of Sellathammal, and the plaintiff ought to have to put forward the two alternative sets of facts which are now alleged in support of that title and which existed at the time of the previous action. What led the plaintiff to come to Court then as now was the order of the Government on the strength of which Srinivasa Aiyar obtained possesion of the land and the denial of the plaintiff's title thereto by Srinivasa Aiyar. Section 43 lays down that the whole of the plaintiff's claim should be included and he must ask for all the remedies to which he may be entitled in respect of the same cause of action. One test, it seems to me, which may be usefully applied in order to see whether the causes of action are the same, is whether the Sections 44, 45, 46 and 47 of the Code which relate to joining causes of action would have any application to such a case as this. To my mind, it is obvious, that they would not. I may also refer to the case of Munshee Buzloor Ruheem v. Shumsoonissa Begum and Jodonoth Bose v. Shumsoonissa Begum (1867) 11. M.I.A. 551. There the question for consideration was whether the claim in the new suit was in fact founded upon a cause of action distinct from that which was the foundation of the former suit. The cause of action in the former suit of the respondent in the appeal before their Lordships of the Judicial Committee was a refusal by her husband, the appellant, to restore, or his misappropriation of, the wife's property which she says she entrusted to him. The property sought to be recovered in the second suit was a particular company's paper which along with other property,the subject of the first suit,was deposited with the husband. This company's paper not having been sued for in the first action it was held that the plaintiff could not recover it in the new suit. The cause of action in both the suits was one and the same conversion
8. None of the cases cited by the learned vakil for the appellant has, it seems to me, any bearing on this case. In Pitta-fur Raja v. Suriya Rao I.L.R. (1885) M. 520, the claim involved in the second suit in respect of the personalty had not arisen at the time of the former suit. In Ramaswami Ayyar v. Vythinatha Ayyar I.L.R. (1902) M. 760 the two suits related to two distinct mortgages, and, as it is pointed out in Thrikaikat Madathil Raman v. Thiruthiyil Krishnen Nair I.L.R. (1905) M. 153 and others, the cause of action in Ramaswami Aiyar v. Vythinatha Ayyar I.L.R. (1902) M. 760 arose out of two distinct contracts. In Jibunti Nath Khan v. Shib Nath Ckuckerbutty I.L.R. (1882) C. 819 the previous suit, which was one for declaration of title to and confirmation of possession of certain land, had been dismissed on the ground that the plaintiff was not in possession at the time of filing the suit and his title was not adjudicated upon. It was held that a subsequent suit for recovery of possession on the same title was not barred under Section 43 because the causes of action were different. As the learned Judges point out, the previous suit was one of a declaratory nature and the plaintiff could not then have asked for anything more on his allegations in the plaint, and after the previous suit there had been an active disturbance of the plaintiff's possession. But if the Court in that case had found against the plaintiff both on the question of title and of possession he could not have subsequently brought another suit on the basis of his title although his first suit was liable to be dismissed on the question as to possession alone being determined against him-see Peary Mohun Mukerjee v. Ambica Churn Bandopadhya I.L.R. (1897) C. 900.' So if the cause of action in the present case was the denial of the plaintiff's title to the land by succession to Sellathammal and the distmbance of his possession by Srinivasa Aiyer,it would not be open to the plaintiff to say that if he had prosecuted the suit and it was found that he was not in possession, then on that ground alone his suit might have been-though I do not think it wouid have been-dismissed.
9. I am, therefore, of opinion that the judgment of the lower Court on this point is right and that the appeal must be dismissed with costs.
10. I concur.