1. The plaint properties belong in jenm to the K tarwad and were held on kanom by the P tarwad. In 1919 one Velu Nair, a member of the P tarwad, assigned the kanom interest to the plaintiff's uncle Subbarama Iyer and later that uncle assigned the interest to the plaintiff. After the assignment to Subbarama Aiyer by Velu Nair, the K tarwad instituted O.S. No. 335 of 1920 against the karnavan and certain members of the P tarwad for arrears of michavaram and they obtained a decree. In execution of that decree, the K tarwad brought the kanom interest to sale and a member of that tarwad purchased it and afterwards assigned that interest to the present defendant 1. Prior to the assignment by Subbarama Iyer to the plaintiff, one Raman was on the land as a tenant and as the plaintiff suspected that after the Court sale in execution of the decree in O.S. No 335 of 1920 that Raman was colluding with the present defendant 1 and her assignor, she took the precaution of impleading the present defendant 1 and her assignor in a suit in ejectment which this plaintiff instituted against Raman. The plaint in that suit (O.S. No. 689 of 1928) was clearly framed as one based on the tenancy and not on title. She also took care to claim relief against the present defendant 1 and her assignor who were defendants 3 and 2 in that suit only on the ground of their having got into possession or attempting to get possession in collusion with the tenant Raman. In the course of the trial of O.S. No. 689 of 1928, the plaintiff distinctly stated that she did not desire to have the question of title raised in that suit. Indeed it is doubtful whether having regard to the way in which the plaint was framed, the question of title could properly have been gone into in that suit at all, even if the plaintiff so desired. The Court found that there was no collusion between the tenant and the present defendant 1; but it also found that the present defendant 1 and her assignor had got into possession of the items now in question after the purchase in execution of the decree in O.S. No. 335 of 1920. The plaintiff's suit against her tenant was accordingly dismissed so far as the present items are concerned. Hence the present suit, based on title, to eject defendant 1.
2. The Courts below have passed a decree in favour of the plaintiff. Hence this second appeal by defendant 1. Mr. Govinda Menon first contends that the present suit is barred by O.S. No. 689 of 1928. I agree with the Courts below that there is no such bar. The mere fact that the present defendant 1 had been impleaded in the former suit will not by itself suffice to raise the bar. Whether the bar is sought to be raised Under Section 11, Civil P.C., or under Order 2, Rule 2, the Court will have to consider whether the present suit is based on the same cause of action as the former suit or the claim now put forward is one that might and ought to have been put forward in the former suit. I am of the opinion that the present suit is not based on the same cause of action as the former suit; nor can it be said that the present claim ought to have been included in the former suit. Indeed I even doubt whether it might have been included at all.
3. It is well established that a person who gets into possession in collusion with a tenant in possession is, so far as the landlord is concerned, placed under the same disability as the tenant from calling his landlord's title in question: see Pasupathi v. Narayana (1890) 13 Mad 335. In the former suit therefore, the present defendant 1 must be held to have been impleaded only as standing in the same position as the plaintiff's then tenant and the principle of estoppel above referred to, precludes any question of title having bean raised in the former suit. Thare is accordingly no force in the plea based upon O.S. No. 689 of 1928.
4. Mr. Govinda Menon next contended that as the other members of the P tarwad (including the karnavan) had been impleaded in O.S. No. 335 of 1920 and as the michavaram was according to the kanom document a charge on the kanom properties, the plaintiff and her assignors must be held bound by the sale in execution of the decree obtained by the K tarwad in O.S. No. 338 of 1920. Here again I am of the opinion that the Courts I below rightly overruled the contention. Neither the fact of the other members of the tarwad being parties to the former litigation nor even the fact of the rent being a charge on the property will make the adjudication in that suit and a sale proceeding in execution of that decree binding upon a person to whom the property had been assigned before the institution of that suit. It may be that Velu Nair's interest (then subsisting) in the tarwad property could be bound by reason of the karnavan having been a party, but the interests of an assignee in property which before the institution of the suit had been alienated cannot be bound by the sale. To take a familiar case by way of illustration, a mortgage debt may be binding on all the mortgaged items, but if before the institution of a suit for sale some of the items are sold by the mortgagor to third persons, a decree obtained by the mortgagee without impleading the purchaser of the equity of redemption in those items cannot as such bind that purchaser though there can be no doubt as to the liability of those items to bear their share of the mortgage debt. I must therefore hold that as against the plaintiff and her assignor, defendant 1 has not derived a valid title to the kanom interest by reason of the purchase in execution of the decree in O.S. No. 335 of 1920.
5. It was next contended that this line of argument was not available to the plaintiff because the assignment by Velu Nair to Subbarama Iyer must be deemed to be void. Whether the assignment was valid or not will depend upon a number of facts. If for instance the alleged partition in the P tarwad is true, there is no reason why the assignment of Velu Nair should not be operative. Even otherwise, circumstances are conceivable in which the assignment may at least be voidable if not void. It cannot therefore be said that this question raises a pure point of law. The lower Appellate Court was therefore justified in refusing to allow it to be raised for the first time at a late stage during the hearing of the appeal before it. The appeal accordingly fails and is dismissed with costs.