1. The question raised in this appeal is one of res judicata. The contesting parties are the plaintiff and his sister, the 3rd defendant. The District Munsif dismissed the suit, holding that it was barred by reason of the decision in Original Suit No. 129 of 1913 by the Appellate Court. The Subordinate Judge, who was the same Judge who decided the appeal in the other suit, held that his decision did not operate as res 'judicata in this suit and sent the case back to the District Munsif for deciding the other issues.
2. In Original Suit No. 129 of 1913 (587 of 1912) the plaintiff sued as lessor to recover rent and to obtain possession of the suit house from the 3rd defendant, setting up (1) an arrangement whereby his own mother Nagammal and his two aunts Almelu and Mariayee, being unable to discharge the debts of their mother Chellayee and aunt Minakshi, agreed to let 1st plaintiff have the exclusive possession of the suit property on condition of his discharging those debts, (2) a lease of the house from month to month to the 3rd defendant. He alleged in the plaint a single cause of action which was the date of default in the payment of rent, April 1st, 1912.
3. The District Munsif found for the plaintiff on the issue as to letting and against the defendant upon the independent title set up by her. He did not decide the question as to the plaintiffs title, as he considered the issue unnecessary. He gave the plaintiff a decree for rent and possession. The Subordinate Judge found against the plaintiff both on the lease and on the exclusive title sat up by him and dismissed the suit.
4. In Original Suit No. 129 of 1916 the plaintiff sued as reversionary heir of his great grandfather, Thandavamurthi Goundan, to obtain (1) a declaration of his own and his cousin Palani Goundan's (2nd defendant's) title as reversioners, (2) possession of the house marked A in the plan together with mesne profits. He repeated in his plaint with some variations as to time and persons concerned the story about the family arrangement under which he was to discharge the debts of Chellayee and Minakshi. He alleged a partition in March 1910 (that is, prior to the institution of his prior suit but not mentioned in his plaint in that suit), whereby the family arrangement referred to above was re opened and the family houses were divided into three shares and the house marked A was allotted to his share. He stated his causes of action for this suit as arising on three different dates, viz., December 7th, 1908, when his grandmother's sister, Minakshi, who had a daughter's estate died, March 1910, when the alleged partition took place, and February 2nd, 1916, when on appeal he lost his suit in the Subordinate Judge's Court.
5. As an alternative relief, he asked that if the partition alleged were found against, the family houses might now be divided and the one marked A might be given to him and put in his possession as his exclusive share.
6. The question whether the plaintiff is to be debarred from proceeding with the present suit must now be viewed from two different standpoints, namely, that of Section 11 and that of Order II, Rule 2 of the Civil Procedure Code. While it may be confidently asserted that the plaintiff's right as a reversioner has never hitherto been 'directly and substantially in issue' in any former suit, it may be argued contra with some reason that public policy does not permit a defendant to be harassed with a multiplicity of suits with all the ingenuity that may be employed in so framing a plaint as to dress up a stale claim in new colours. It may be urged that the 3rd defendant has successfully defeated an attempt to deprive her of possession of the property that she enjoys, only to find herself subjected to a renewed attack on the same property at the instance of the same party (her brother) who has already once failed on the verdict of three Courts. Explanation IV to Section 11 of the Civil Procedure Code lays down that any matter which might and ought to have been made a ground of defence or attack in a former suit shall be deemed to have been a matter substantially in issue in such suit. No doubt the plaintiff might in Original Suit No. 587 of 1912 have taken his stand upon his right to succeed to his great-grand father's property upon the death of Minakshi, seeing that the woman died in 190S and her sister Chellayee died in 1905. There would have been no objection under Order II, Rule 3, to such a joinder of the causes of action in the two suits. He might also have mentioned the partition of properties in March 1910 which he now puts forward. But can it be said that he ought to have done so? To answer this question we must turn to Order II, Rule 2, which says that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Now the Privy Council so long ago as 1885 had occasion in Pittupur Raja v. Suriya Row 12 I.A. 116 to construe the words of the corresponding section of the Code of 1859, which declared that 'every suit shall include the whole of the cliaim--arising out of the cause of action.' They then observed that this did not mean that every suit. should include every cause of action or every claim which the party-had; and they applied the test cited from Moonshee Buzloor Ruheem v. Shumsoonnissa Begum 11 M.I.A. 551 of seeing whether the claim in a new suit was in tact founded on a cause of action distinct from that which was the foundation of the former suit. The wording of the Code of 1908 upon this point is a little different from that of 1859, as it substitutes the words 'whole of the claim which the plaintiff is entitled to make in respect of the cause of. action' for the words 'whole of the claim arising out of the cause of action.'
7. But Order II, Rule 2, Clause (1), is identical in language with Section 43 of the Code of 1882, and in Ramaswami Ayyar v. Vaythinatha Ayyar 13 M.L.J. 448 this Court adopted the interpretation of the Privy Council and applied it to Section 43 which was the law then in force. The learned Judges (Benson and Bashyam Aiyangar, JJ.) also dealt with Section 42. which was worded in practically the same language as Order II, Rule 1, of the present Code, and ran thus: 'Every suit shall, as far as practicable, be framed so as to afford ground for a final decision upon the subjects in dispute and so to prevent further litigation concerning them.' They observed that the object of this section was not to require the plaintiff to unite all the causes of action which he might have against the defendant in respect of the corpus or object matter of the suit, but merely to require him to bring forward his whole case as to the matter of litigation on the question of right involved in the suit. They explained the expression 'the subjects in dispute' as signifying the jural relation between the parties to the suit, for the determination of which the suit is brought.
8. If we take this decision to be good law (and I see no reason why we should dissent from it), it may be said that the jural relation of lessor and lessee, on which Original Suit No. 587 of 1912 was based, in respect of the house comprised in the present suit was quite different from the jural relation of owner by right of succession and trespasser, which governs the suit of 1916. The dates when the causes of action arose in the two suits are also different. Of course a finding upon a certain issue or issues in one suit may be res judicata in a later suit between the same parties without the whole of the later suit being barred by res judicata.
9. I am, therefore, of opinion that the learned Subordinate Judge was right in remanding the suit for disposal on the issues other than issue No. 3, which was upon the question of res judicata. This appeal should be dismissed, and each party should be directed to bear his own costs in the appeal.
Sadasiva Aiyar, J.
10. I agree but I wish to express in my own words my opinion on the legal question involved. Those questions are of great difficulty and were argued strenuously on both sides. In the plaint in the Suit No. 129 of 1913 of the Additional District Munsif's Court of Madura (587 of 1912 of the Principal District Munsif's Court) the plaintiff stated that his grand-aunt Minakshi died 'two years ago' (see the 5th paragraph of Exhibit I, dated 21st October 1912). That means that she died about October 1910. The 7th paragraph of that plaint states that the plaintiff's mother and her two sisters entered into some arrangement with the plaintiff (ignoring evidently the defendants Nos. 1 and 2 and the plaintiff's brother Pachaimuthu) about paying the debts of the plaintiff's grand aunt Minakshi and his grandmother Chellayee. This implies that agreement was after Minakshi's death in about October 1910 and that she was not a party to it.
11. In the plaint in the present suit No. 129 of 1916, the plaintiff does not state when his grand-aunt Minakshi died but says (paragraphs 7 and 8 of the plaint) that, after the death of Minakshi and in March 1910, a division took place between the 1st defendant, 2nd defendant and the plaintiff re-opening a previous arrangement between the defendants Nos. 1 and 2 and the plaintiff and Minakshi. Thus Minakshi, according to the present plaint, had died before March 1910 and the family arrangement set up in this suit was between her and the plaintiff and the defendants Nos. 1 and 2 during her lifetime (and not as between the plaintiff and the plaintiff's mother and the plaintiff's two aunts as set up in the former suit). The cause of action in the former suit was substantially based on the contractual relationship of landlord and. tenant between the plaintiff and the 3rd defendant whereas in the present case, it is based on the alleged joint title of the plaintiff and of the defendants Nos. 1 and 2 and on a division between them in March 1910. Having regard to the preponderance of the weight of authority among the many decisions of this Court, of which only Rama-swami Ayyar v. Vythinatha Ayyar 13 M.L.J. 448 and Prambath Manakkal v. Puthengattil Mopsamu 28 M. 406 need be quoted, the former dissenting from Guddappa v. Tirkappa 2 Bom. L.R. 872 and both overruling Rangasami Pillai v. Krishna Pillai 8 Ind. Dec. 184 in favour of the view that the explanation to the res judicata section as regards 'grounds of attack' does not affect a plaintiff where he sues on a different cause off action and that a suit based on the contractual relationship of tenancy is based on a different cause of action from that based on title, I am constrained with reluctance to hold that the present suit not barred by res judicata by the decision in the former suit.
12. As regards the question whether the expression 'cause of action' will include the facts which were available to the plaintiff to put forward on the date of the previous suit, which, however, he so omitted to put forward in the first suit and which he bad put forward for the first time in the second suit in order to establish substantially the same title on which the first suit was brought, the better opinion is that the expression will generally include such facts. But the decided oases disclose that considerable difference of opinion frequently results when learned Judges proceed to consider whether the title set up in the second suit and sought to be established by a particular set of facts is substantially the same as the title set up in the first which was sought 'to be established by another set of facts and whether hence, the cause of action in the two suits is the same. For instance in Arunachalam Chetty v. Meyyappa Chetty 8 M.L.J. 28 (decided by Subramania Aiyar and Davies, JJ.), a minor who failed in the first suit to set aside a compromise decree passed during his minority on the allegation of fraud on the part of his guardian, was held precluded from bringing a second suit on the new allegation that the decree was passed without obtaining the consent of the Court. Bat in Ramaswami Ayyar v. Vythi-natha Ayyar 13 M.L.J. 448 the learned Judges, Benson and Bashyam Aiyangar, JJ., disapprove of the decision in Arunachalam Chetty v. Meyvappa Chetty 8 M.L.J. 28 (see page 774 Page of 26 M.-Ed). In Masilamania Pillai v. Tiruvengadam Pillai 31 M. 385 Sir Arnold White, C.J., and Miller, J., differed on the question whether the second suit based on a claim to be the next reversioner, on the allegation that the plaintiff was the sister's son's son of the last male owner, was barred by the dismissal of a former suit in which also the plaintiff had claimed to be the next reversioner but traced his title as the alleged adopted son of the brother of the last male owner. Oiving to such difference of opinion, the case went before the present learned Chief Justice (then Wallis, J.) and he held that the title as reveirsioner was the substantial cause of action in both suits and he decided that the second suit was birred. 1 shall quote some instructive observations from that judgment: Apart altogether from authority, it appears to me that, in a suit to establish a claim as reversioner, that claim should be held to be the subject in dispute within the meaning of the section. I should not omit to observe that the provisions of Section 4 as to the framing of suits are only to be applied as far as practicable,' and if the plaintiff would have been embarrassed in the former suit by relying not only on his alleged adoption by the divided brother of the deceased bat also on his descent from the sister of the deceased, it may well be that he would not have been bound to rely on both grounds. This would, I think, be the case if the evidence in support of one ground might be destructive of the other grounds. Bat there could be nothing of this kind in the present case, and I do not think there is anything unreasonable in holding that the plaintiff in the former suit ought to have relied upon his descent from the deceased's sister as well as upon the adoption, so that if proof of the adoption failed, he might still establish his right as reversioner on the ground of this descent and prevent further litigation regarding it. The judgments of the learned Judges who made the reference do not expressly refer to Section 42 of the Civil Procedure Code, and although Ramaswami Ayyar v. Vythinatha Ayyar 13 M.L.J. 448 is cited, it is, I think, possible that the attention of the learned Judges was not specially directed to the observations as to the scope of Section 42 which are to be found in different parts of a very lengthy-judgment. If I had been obliged to form a conclusion upon the earlier authorities, and apart from Section 42, 1 should have found the task one of great difficulty.' Section 42 of the old Civil Procedure Code corresponds to the present Order II, Rule 1.
13. One of the considerations then to be kept in mind when considering the question what grounds of attack ought to have been advanced in the first suit seems to be whether under Order II, Rule 1, it was 'practicable' to have framed the first suit by alleging the facts put forward in the second suit without the evidence respectively educable on the two sets of facts being mutually destructive.
14. Mr. T. M. Krishnaswami Aiyar for the appellant (if I understood him aright on his subtle points) argued that even where the facts newly alleged in the second suit may be destructive of the facts alleged in the first suit, if the title can be grasped by the judicial mind as substantially the same in both suits, the second suit would be barrrd as res judicata and prohibited under Order II, Rule 1. He put forward the following or a similar illustration. A has two sale-deeds (say dated respectively in May and June 1910) conveying to him the same property. One was executed by B and the other ,by 0 A was doubtful whether B or 0 was the owner and so he got sale deeds from both. He then sued trespasser D on the strength of his sale deed from B. That suit was dismissed as B's title was found against. Can A then sue D again on the strength of his sale deed from 0? Mr. Krishnaswami Aiyar argued that A cannot do so and that he ought to have put forward his case under both the sale deeds in the first suit, though the title of B rested on proof of facts inconsistent with those on whose proof C's title had to be established. I think that I need only say that the balance of the authorities seems to be in favour of the view that the second suit is maintainable in the above illustration (by Mr. T. M. Krishnaswami Aiyar), though in one sense the jural relation in the two suits between the two parties is the same, namely, the plaintiff as owner and defendant as trespasser. I do not, however, consider it necessary to consider the question in detail because in the present case, the title put forward in the first suit (based on the contractual relationship of landlord and tenant) and the title put forward in the present suit (the title as one of the three heirs of the last mala owner) constitute different causes of action, according to several precedents of this Court binding up upon me.
15. Having thus expressed my concurrence with the conclusion of the lower Appellate Court on the third issue in the suit, namely, whether the suit itself is barred by res judicata, I wish to point out before getting rid of this appeal that at least one other issue ought to have been framed by the District Munaif, namely, whether the finding in the former suit against the plaintiff in respect of his exclusive title to the ownership of house site A (see paragraph 4 of Exhibit IV) is res judicata as between the plaintiff and the 3rd defendant and against the plaintiff in the present suit. The distinction between a finding on an issue being res judicata and the suit itself being barred as res judicata must be clearly kept in mind, and this new issue must also be decided in the remand hearing before the District Munsif. I do not wish to express any opinion on this new issue at this stage.
16. In the result I agree that the appeal ought to be dismissed. The parties will bear their respective costs of this appeal.