Bhashyam Ayyangar, J.
1. The point arising in this second appeal is whether the appellants (plaintiffs) are precluded by Section 43 of the Civil Procedure Code from bringing this suit by reason of their having omitted to include the present claim in their former suit, Original Suit No. 490 of 1887, assuming, as is apparently found by both the Lower Courts, that at the institution of the former suit they were aware that the land now sued for was in the possession of the present defendant and that the same formed part of their father's estate. The first suit was brought by these plaintiffs for the recovery of some other land which was in the possession of the defendant in that suit and the same was awarded to them by the decree of the Appellate Court therein, which was confirmed by the High Court in second appeal on the 13th August 1890 (Exhibit B).
2. The present suit was brought in 1896 for the recovery from the defendant herein, of the land mentioned in Schedule A to the plaint which is different from the land mentioned in Schedule B, the subject-matter of the former suit. The plaintiffs' ground of title in both the suits is one and the same, i.e., that as the heirs of their father they were entitled to succeed to both the properties on the death of their mother on the 9th January 1887. The former suit was instituted against the defendant therein, by reason of his wrongfully withholding from the plaintiffs, on the death of their mother, possession of the land in Schedule B, and the present suit is brought on the defendants herein similarly withholding the land comprised in Schedule A, the defendants in both the oases having respectively come into possession of the lands comprised in Schedules B and A under separate alienations made by the mother in favour of each on a different occasion. It will thus be seen that though the ground of title is one and the same in both the suits and the cause of action in respect of both arose at the same time, viz., the date of the mother's death, yet the person who wrongfully withheld the land in Schedule B and the person who wrongfully withheld the land in Schedule A are quite different and there was no manner of combination or privity between them in respect of the lands which they severally withheld.
3. The words 'cause of action' have all along been held to mean 'every fact which it is material to be proved to entitle the plaintiff to succeed; every fact which the defendant would have a right to traverse,' and have no relation whatever to the defence, but refer entirely to the grounds set forth in the plaint as the cause of action Cooke v. Gill L.R. 8 C.P. 107, Shankar v. Dya Shankar L.R. 15 I.A.; Chand Kour v. Pertab Singh L.R. 15 IndAp 156.
4. Though the ground of title on which both suits are founded is one and the same and the causes of action also arose at the same time, yet the properties comprised in the two suits are different and the persons who severally withheld the same are also different. A reference to Section 50, Civil Procedure Code, clearly shows that in every suit the plaint must show that the defendant is or claims to be interested in the subject-matter and that he is liable to be called upon to answer the plaintiff's demand. This clearly shows that the cause of action is not an abstraction, something independent of the defendant, but that the plaint should disclose a cause of action against the defendant. And Section 43 only provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and that if a plaintiff omit to sue in respect of any portion of his claim arising from the cause of action for the enforcement of which the suit is brought, he shall not afterwards sue in respect of the portion so omitted, In the former suit the plaintiffs were entitled to call upon the defendant therein only to answer the demand in respect of the land comprised in Schedule B in which alone that defendant was and claimed to be interested. If the land in Schedule A had also been withheld by him from the plaintiffs, plaintiffs' claim to the same would be only a part of the claim which they were entitled to make against that defendant and Section 43, Civil Procedure Code, would be a bar to the present suit if he were the defendant herein or the defendant herein were a person claiming under him. In respect of the land in Schedule B the plaintiffs' cause of action was only against the defendant in the former suit, and in respect of the land in Schedule A their cause of action is only against the defendant herein, and in my opinion it is impossible to hold that the former suit did not include the whole of the claim which the plaintiffs were entitled to make in respect of the cause of action on which that suit was founded, and that the claim in the present case is a part of the claim which they were bound to make in the former suit: in other words, that a cause of action against one person is a part of the cause of action against another though it is not a joint one against both.
5. In Pittapur Raja v. Suriya Rau I.L.R. 8 Mad. 520 in which Section 7 of Act VIII of 1859 (corresponding to Section 43 of Act XIV of 1882) was pleaded as a bar to a subsequent suit between the same parties, their Lordships of the Privy Council explained the law as follows (at page 524): 'That section does not say that every suit shall include every cause of action, or every claim which the party has, but 'every suit shall include the whole of the claim arising out of the cause of action'--meaning the cause of action for which the suit is brought. The claim in respect of the personalty was not a claim arising out of the cause of action, which existed in consequence of the defendants having improperly turned the plaintiffs out of possession of Veeravaram. It was a distinct cause of action altogether, and did not arise at all out of the other. It is not like the case of one conversion of several things. There the act of conversion of the several things is one cause of action, and you cannot bring an action for the conversion of one of the things, and a separate action for the conversion of another. The conversion of the whole is one claim and one cause of action.' See also Moonshee Buzloor v. Shumsoonnissa Begum 11 M.I.A. 551. In Pittapur Raja v. Suriya Rau I.L.R. 8 Mad. 520 the parties were the same in both the suits but the subject-matter different. Neither will Section 43, Civil Procedure Code, be a bar to a suit against one of two or more joint and several obligors, though for the same debt a suit had been already brought and decree obtained against another of such obligors per Baron Bayley in Lechmere v. Fletcher 1 C.& M. 623, Dhamput Singh v. Sham Sunder Mitter I.L.R. 5 Calc. 291. In such a case the defendants are different in the two suits but the subject-matter is the same. The present case is stronger than either of the above classes of cases, the defendants as well as the subject-matters being different in the two suits. The wrongful withholding of Blackacre by X and the wrongful withholding of Whiteacre by Y, cannot constitute the same cause of action, by reason only of the plaintiff's ground of title both to Blackacre and Whiteacre being the same, when he sues X and Y separately in respect of Blackacre and Whiteacre respectively, alleging the same ground of title, but distinct wrongful withholding by each of them. I may also here refer to more than one decision of this Court in which it was held that a suit for a mere declaration of right to any property under Section 42 of the Specific Relief Act is not obnoxious to the proviso thereto, by reason of the plaintiff being able to seek further relief in respect of such property against a person other than the defendant in the suit Subramanyan v. Paramaswaran I.L.R. 11 Mad. 116 Chinnammal v. Varadarajulu I.L.R. 15 Mad. 307.
6. The very question arising in this case was considered by a Full Bench of the North-West Provinces High Court, in 1867, in Jehan Bebee v. Saivuk Ram Agra High Court Reports, Full Bench, Vol. I, part III, p.109 and it was there held that it was not obligatory on the heirs to make all the alienees parties to the first suit, upon pain of forfeiting all future right of suit against them by reason of such omission. The reasoning on which the decision proceeded is as follows: 'As against the widow the cause of action is based upon the fact that she has made an alienation of the inheritance in excess of her interest. As regards an alienee, the cause of action arises from the circumstance, that the possession of a part of the inheritance is wrongfully withheld. Although the alienation may have been wrongful, it does not follow that an heir is entitled to recover possession from the alienee. Such an alienee, if a purchaser or mortgagee, may, under the doctrines laid down in Hanooman Persaud Panday v. Munraj Koonwaree 6 M.I.A. 393 successfully defend his possession by proving that he acted honestly and with due caution, but was himself deceived--and yet the heir might, although he could not succeed in a suit against the alienee, recover damages from the widow for her wrongful act. For the same reason (i.e., that the cause of action against the alienee is the wrongful withholding of possession) the heir's cause of action as against different alienees who have acquired possession under alienations made at different times and under different circumstances, is not one and the same cause of action, as is admitted by the respondent's pleaders. To apply these conclusions to the case before us--the plaintiffs sued on the same title in the former and in the present suit and the question as to the widow's right to alien arose equally in each case. But the sales were distinct, different lands having been sold at different times to different purchasers.'
7. A different view was taken in an earlier decision of a Full Bench of the Sadr Dewany Adalat of North-West Provinces. (Fyz Ali Khan's case, 20th March 1866) which however was distinguished in the above case (Spankie, J., dissenting). In Fyz Ali Khan's case, the reversionary heir, Rao Kurrun Singh, sued to establish his title to twenty-seven villages which had formed the estate of Dhuleep Singh who died in 1846 and was succeeded by his widow and mother successively. The widow died in 1856. Rao Kurrun Singh's grand-father was the heir-at-law, but he was a lunatic and Rao Kurrun Singh, on his own account and as guardian of his lunatic grand-father, sued to establish his title to the property which had been alienated by the widow with the concurrence of the mother of Dhuleep Singh, joining the mother an a party to the suit along with the alienees. She died during the pendency of the suit and Rao Kurrun Singh succeeded and obtained proprietary possession of the twenty-seven villages, though not actual possession of three of them, which were in the possession of mortgagees, who had not been made parties to the suit. The mortgages had been made by the widow, with the concurrence of the mother, prior to the permanent alienations which were set aside by the decree in the suit as not binding upon the reversionary heir. Subsequently, Rao Kurrun Singh sued the mortgagees to avoid the mortgages as unlawful and recover full possession of the three villages in their possession. The second suit was dismissed by a Full Bench on the ground that Rao Kurrun Singh's cause of action was Dhuleep Singh's widow's death and he had to establish his title to his property the whole of which had been alienated by the widow and the mother and as ho did not include the mortgagees in the first suit, though he did sue and obtain proprietary possession of the estate, he could not subsequently sue to avoid the mortgages as unlawful. Appeals wore preferred to Her Majesty in Council from the decision of Sadr Dewany Adalat in the first suit and from the Full Bench decision in the second suit Kooer Goolab Singh v. Rao Kurrun Singh 14 M.I.A. 176; Rao Kurrun Singh v. Fyz Ali Khan 14 M.I.A. 187. Both the appeals are dealt with in one common judgment, the result being that the appeal from the first suit was dismissed, but the appeal from the second suit was allowed and the Full Bench decision of the Sadr Dewany Adalat reversed on the ground that the second suit was based on a different cause of action from the first and that Section 7 of Act VIII of 1859 was therefore no bar to the subsequent suit. It will be seen that out of the twenty-seven villages which formed the subject-matter of the first suit and had been alienated to the defendant therein, for a purpose not binding upon Rao Kurrun Singh, the next reversionary heir, three villages had already been mortgaged to, and were in the possession of, the defendant in the subsequent suit, the purpose for which the property was thus mortgaged being also found not to be one that would be binding upon the reversionary heir. The three villages were included in the first suit and also formed the subject-matter of the second suit, the equity of redemption thereof being alone comprised in the former suit, and the mortgage estate which had been carved out of the said three villages constituting the subject-matter of the second suit and defendants also being different in the two suits. The ground of title on which the two suits were founded was one and the same as in the present case and the cause of action in each also arose at the same time and in one sense, so far as the three villages in question were concerned, the two suits related to different interests in the same property. Their Lordships of the Judicial Committee, in reversing the decision of the Full Bench, laid down that the true test of the proper application of the section in question as a bar to a subsequent suit in any particular case must be whether there has been a splitting of the cause of action, that upon the above facts the two suits cannot be regarded as having been based upon the same cause of action and the second suit cannot therefore be said to have been brought upon a splitting of the cause of action. In Mothoor Mohun v. Khemunkuree 5 Suth. W.R. 182 the same view was taken by the High Court of Calcutta and the operation of Section 7 of Act VIII of 1859 explained as follows:
Section 7 of Act VIII of 1859 requires that, if all rights arising out of the same cause of action are not sued for together, the portion abandoned cannot be separately sued for afterwards but does not enact similar penalty for all rights under the same or similar titles, the right to sue for which may arise under different dates and causes of action, and the defendants as to which different properties may be either only one party or different parties altogether.
8. These are direct authorities in favour of the appellants' contention. The respondent's pleader chiefly relies upon the unreported decision of this Court in Subbannavien v. Krishna Royar Appeal No. 182 of 1896, where in a case which was substantially the same as the present, it was held by a Division Bench that Section 43, Civil Procedure Code, was a bar, the only difference between that case and the present being that in the former the plaintiff in the second suit was not the reversionary heir himself, but a person claiming under him under an alienation made subsequent to the first suit. This, however, is only a circumstantial difference and it must be admitted that that decision fully supports him. But the above decision of the Privy Council does not appear to have been brought to the notice of the learned Judges who decided that case and their decision cannot be reconciled with that of the Privy Council. The respondent's pleader is not able to cite any other case in which under similar circumstances Section 43, Civil Procedure Code, was held to be a bar.
9. The decision in Subbannavien v. Krishna Royar Appeal No. 182 of 1896 purports to be based upon a course of decisions in this Presidency in which it was held that a suit relating to various properties in the possession of different defendants who claimed under different alienations made by a widow or by a Karnavan or the managing member of a Tarwad or a joint Hindu family, is not open to the objection of misjoinder of defendants and of causes of action, when the plaintiff's ground of title to all the properties included in the suit is the same 7 M.H.C.R. 290. With all deference, I venture to state that the course of decisions referred to does not warrant the inference drawn therefrom that the plaintiff is bound to include all the properties alienated and the alienees in one and the same suit, and that if he omits to do so, his subsequent suits are obnoxious to Section 43, Civil procedure Code. A person suing for partition of an estate or for an estate which has devolved upon him by inheritance may so shape his plaint as to base it upon a single cause of action, the various defendants being joined as parties in possession of the estate. Further, under Section 28, Civil Procedure Code, relating to the joinder of different persons as defendants, it is open to a plaintiff to join as defendants various persons against whom the right to relief is alleged to exist, whether jointly, severally or in the alternative in respect of the same matter. And judgment may be given against such one or more defendants as may be found to be liable, according to their respective liabilities. It would be noted that the phrase 'in respect of the same matter' occurring in this section, is wider than the phrase 'in respect of the same cause of action' occurring in Section 26, Civil Procedure Code, relating to the joinder of different persons as plaintiffs in the same suit. Raghunath v. Sarosh I.L.R. 23 Bom. 266. I need hardly add that the expression in Section 43, Civil Procedure Code, is 'cause of action', and not 'matter.' In Ishan Chunder v. Rameswar I.L.R. 24 Calc. 831 it was held, following the decision of this Court In 7 M.H.C.R. 290 above referred to, that 'In a suit for ejectment against several defendants who set up different titles to various parts of the land claimed, there was only one cause of action' and it was observed that 'in England in an action in ejectment all the parties in possession are joined.' Under the English law, the persons to be made defendants in an action in ejectment, i.e., to be named in the writ, are all the persons in possession of the land sought to be recovered; and the persons who have a right to defend an action of ejectment are not only the persons named in the writ, but also any person who is in possession by himself or his tenant (Rules 112 and 113; pp. 494--98, Dicey's 'Parties to an action,' edition of 1870). As to cases in which different persons are in possession of different portions of the property, the rule laid down in Cole on 'Ejectment' (page 76) is as follows: 'When the tenements claimed and the tenants thereof are numerous, it is frequently advisable to bring two or more distinct ejectments rather than one action against all of them for the whole of the property. The exercise of a sound discretion and judgment on this point may sometimes save much trouble.' Under the English law and practice, in an action of ejectment, the plaintiff need include in the action only those who are in possession of the land for the recovery of which the action is brought and in cases in which the plaintiff, as heir-at-law, may have to recover different portions of the inheritance which are in the possession of different persons, he must exercise a sound discretion and judgment as to whether it would be expedient to bring one action of ejectment against ail the defendants or different actions in ejectment against different persons in respect of the tenements in their respective possession.
10. Whether the action is based only upon one cause of action or not will depend upon the frame of the plaint in a suit for ejectment and not upon the answers to the suit, which may be set up by the different defendants. Even if the plaint is not based upon one and the same cause of action, yet if the relief that is claimed severally against the different defendants be in respect of the same matter, Section 28, Civil Procedure Code, will save it from the objection of multifariousness.
11. For the above reasons and following the Full Bench decision of the N.W. P. High Court(1) and the decision of the Privy Council(2) I would allow this second appeal and, reversing the decree of the lower Appellate Court, remand the appeal for disposal on the merits. Costs of this second appeal will be costs in the cause.
12. I concur.