1. The plaintiff-appellant brought a suit to recover certain property alleging that he was the reversionary heir of one Venkanna. The property had been in the possession of Narasamma, a female relation of Venkanna, and, according to the plaintiff, her possession was under licence from him. He therefore sued to recover the property ifrom the defendants who were in possession after Narasamrna's death. The suit was dismissed. The present suit was brought to recover the same property from the same defendants on the ground that the plaintiff was the heir of Narasamma who had been in possession of the property. The Lower Courts have found that this suit is barred under Section 11, Explanation IV of the Civil Procedure Code and the Court of First Instance relies on the decision in Govinda Menokki v. Govinda Kurup (1919) 10 LW 170 for its decision. That case appears to be very much in point, as also a very recent case reported in Muhammad Rowther v. Abdul Rehman Rowther ILR (1922) M 135. There are also cases Masilamani Pillai v. Thiruvengadam Pillai ILR (1908) M 385 and Rangasami Patnulu v. Appalasami (1916) 1 MWN 286 which all support the Lower Court's decision, and there is also a very recent pronouncement of the Privy Council reported in Fateh Singh v. Jagannath Baksh Singh (1924) 48 MLJ 64 which is authority to the same effect.
2. The learned vakil for the appellant is constrained to rely mainly on cases which were decided under the Civil Procedure Code of 1859, viz., Musammat Nousha Begam v. Musammat Umrao Begum (1875) 7 NWPHCR 60, and the dissenting judgment of Garth, C.J. in Denobundhoo Chowdhry v. Kristomortee Dossee ILR (1876) C 152. Those judgments, however, whether they were under the then existing Code correct or not, appear to be in conflict with the very early case of the Privy Council in Woomatara Debia v. Unnopoorna Dassee (1872) 11 BLR 158. It seems to me here that the plaintiff at the time of bringing his first suit possessed, as he alleges, title as reversioner to Venkanna and also as heir to Narasamma. He sued on his title as absolute owner alleging that the defendants had trespassed upon the property. His cause of action was his absolute right to the property which had been infringed by the trespass of the defendants. Whether his title came to him in one way or in another it appears to me to be immaterial, for it would give him no different right as against the defendants or in respect of the alleged act of trespass, and I think that, under Section 11, Explanation IV, he certainly might have put forward both his titles to the property and I think that he also ought to have done so. In deciding whether he ought to have done so, the provisions of Order 2, R. I arc relevant. That rule says:
Every suit shall, as far as practicable, be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
3. Therefore, when the plaintiff brought his first suit, he should have framed it as far as practicable so as to afford ground for final decision in order to prevent further litigation. There is no inconsistency between the two pleas set up by him and it would not have been inconvenient to try them together. Since, therefore, R. I says that every suit shall be framed so as to afford ground for final decision, I think under Explanation IV the suit ought to be so framed if possible and the plaintiff ought to have framed his first suit so as to include both the titles which he has now set up in separate suits. Reliance is placed by the appellant on Ramaswami Aiyar v. Vythianatha Aiyar ILR (1903) M 760, but, so far as the facts of the case are concerned, they do not help him, for they relate to a case where two different mortgages were sued on, but certain observations are relied on which I do not think really help the appellant. It is suggested that the words ' subjects in dispute ' in Order 2, Rule 1 really mean cause of action and cause of action alone, but the observation in Ramaswami Aiyar v. Vythianatha Aiyar ILR (1903) M 760 is as follows:
The expression 'subjects in dispute' means the cause of action or the subject-matter of litigation, that is, the right which one party claims as against the other.
4. Here the only right claimed by the plaintiff as against the defendants is the right to possession as owner, and, consequently, the ' subject in dispute ' is the same in both the suits. Again a quotation from Scotland, C. J.'s judgment in Chinniya Mudali v. Venkatachala Pillai (1867) 3 MHCR 320 appears at page 322:
I take it to be also dear, as a general rule, both on principle and authority, that when a question of right or title has been adjudicated on in a suit, the bar of judgment cannot be avoided by suing on a new form of claim or on a ground of relief which might have been, but was not raised or determined in the former suit.
5. That appears to be applicable to the facts of the present case. The plaintiff brought his first suit on title. He brought the second suit on the same title, merely alleging different facts as the basis of that title ; in fact, this second suit is simply a new form of his claim as against the defendants. I do hot think it is necessary to refer at length to the cases in this Court cited by appellant Allunnl v. Kunjusha ILR (1883) M 364 and Mangalathammal v. Veerappa Goundan (1919) MWN 287 which can be distinguished on their facts. Following Muhammad Rowther v. Abdul Rehman Rowther ILR (1922) M 135. I must hold that the Lower Appellate Court was right and dismiss the Second Appeal with costs.