1. The plaintiffs are the appellants before us. Their suit has been dismissed by the lower Courts in limine, without being tried on the merits on the ground that it is barred by Order IX, Rule 9, of the Civil Procedure Code, by reason of the order in the prior suit, Civil Suit No. 494 of 1913, brought by them against practically the same defendants, regarding the same properties, dismissing it for default under Rule 8, The lower Courts have held that the cause of action for the two suits is one and the same. The learned Vakil for the appellants contends that they were wrong in so holding.
2. In considering the applicability of Rule 9, it must be carefully kept in view that it has not the effect of res judicate, for there is no adjudication on any of these issues in the first case. This is pointed out by the Privy Council in Chand Kour V. Partab Singh 15 I.A. 156 . The rule merely bars a second suit on the same cause of action. In that case their Lordships observe: 'The cause of action has no relation whatever to the defense which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It 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.' Applying this view, they held that the dismissal for default of a prior suit by the reversioners, for a declaration and injunction restraining the widow from alienating her husband's properties was no bar to A subsequent suit by them to declare a gift made by the widow after the disposal of the first suit was not valid against them. The ground of claim in one suit was the intention of the widow to alienate and in the other suit a completed alienation by her.
3. To decide the question before us we have, therefore, to examine the allegations in the two plaints, in Civil Suit No, 494 of 1913, and in the present suit, to see if the two suits are based on the same cause of action. In the first suit, plaintiffs claimed title to a fractional share in the plaint properties as the heirs under Muhammadan Law of their deceased father, Sheikh Meera Rowther. They stated that their mother had illegally sold their share to their brother, the second 'defendant, who had subsequently mortgaged the whole property to the ninth defendant and that he had brought a suit and obtained a decree for sale of the mortgaged properties. They contended that the sale was invalid against them, as their mother had no authority to act as their guardian, under the Muhammadan Law and deal with their properties and that, even if she had, the sale was vitiated by fraud and other grounds stated. Alleging themselves to be in joint-enjoyment of the properties with their co-sharers, they sued for a declaration of their title and for an injunction restraining the ninth defendant from executing his decree. That was the suit that was dismissed for default. In the present; suit they, no doubt, allege the same title and the same reasons for treating at invalid against them the sale, the mortgage and the decree as well as the subsequent Court auction-sale and purchase in execution of that decree, which took place since the dismissal of the first suit. But they also aver they are no longer willing to remain joint with their co-sharers and pray that the properties may be divided by metes and bounds and separate possession of their share may be given to them. The first suit was for a declaration to remove could on their title and the second one for partition and separate possession of the lands falling to their share.
4. The relief as asked for hap, no doubt, no direct bearing on the cause of action, but where reliefs claimed are different', the causes of action are generally found to be different. It seems to me the cause of action-in the first suit is not the same as the cause of action in the second suit, though the title alleged is the same in both. Title is only a part of the cause of action. The ground of claim alleged in the first suit is the alienation by the mother and the subsequent dealings by the alienee and his transferee with the properties; whereas, in the second suit, there is super added the intention of the plaintiff not to continue any longer in joint possession with their co-sharers and the refusal or the failure of the latter to divide and give them separate and exclusive possession of the part of the properties representing their share. Till the plaintiffs exercised their volition and decided to separate and the defendants refused or neglected to give them their share, a cause of action could not be said to have arisen for the partition suit. That being so, it seems to me the causes of action for the two suits are different though they overlap to some extent.
5. It has been held, both here and in Calcutta, that the cause of action for a suit for a declaration of title to property is necessarily different from the cause of action for the suit for possession, as the former required an allegation of possession with the plaintiff or that the plaintiff is not entitled to possession;, whereas the latter is based on the allegation of possession being with the defendant. See Giribala Dasi v. Nitya Lal Sinha 41 Ind. Cas. 905 , and Siliman Sahib v. Bontala Haman Sahib 20 Ind. Cas. 418 . The first case arose with reference to Order IX, Rule 9 itself and though the second case had no reference to that rule, it discusses the meaning of the expression 'cause of action' in Order II, Rule 2 and we must, I think, adopt the same meaning for the expression in both rules. Reference may also be made to Ramaswami Ayyar v. Vythinatha Aiyar 26 M. 760 , where there is a full discussion of the meaning of that phrase. It seems to me that a suit for partition and delivery of exclusive possession of part of the property, which was before in joint possession stands on the same footing as a suit for possession of the whole property, as regards the difference between it and the suit for a declaration of title. The cause of action in each case is different. The learned Vakil for the respondent-, however, relied on the case of Naganada Iyer v. Krishnamurthi Aiyar 6 Ind. Cas. 233 , as opposed to this view. But I think that case is clearly distinguishable. In that case, it is pointed out that the plaint in the first suit alluded to the Government order under which plaintiff was dispossessed, and admitted that defendant had entered upon the land but nevertheless the plaintiff sued for a declaration and injunction only as if he was still in possession (see pages 102 and 103) Pages of 34 M.--[Ed.], and that the second suit was based on the same grounds, nothing further having happened in the interval and that the only difference between the two suits was that the latter asked for possession while the former asked for a declaration and injunction only. It was on this view of the facts that the learned Judges held that the second suit was barred by Order IX, Rule 9. I express no opinion regarding their view of the case before them; for it does not apply here. They held that the addition of a prayer for possession, the cause of action for which had already accrued prior to the first suit and which was actually disclosed in the plaint, did not remove the bar created by Order IX, Rule 9. In the present case there is nothing to indicate that the plaintiff's cause of action for partition and separate possession on which they now sue had arisen prior to their first suit.
6. It was further argued that the cause of action against the ninth defendant was different from the cause of action against the other defendants who are co-sharers with the plaintiffs and that, so far as he was concerned, the cause of action in the two suits was the same. It is doubtful whether, under Rule 9, the causes of action against different defendants in the same suit can be considered separately' at all. Assuming that it can be, it is clear that the bale and purchase in Court-auction which took place subsequent to the first suit gave the plaintiffs a fresh cause of action to have them declared invalid against them, The dismissal of the previous suit not having the force of res judicata is not tantamount to declaring the mortgage and decree to be valid and binding transactions. Their validity can be attacked in the present suit. Even as against the ninth defendant separately this suit is, thus, not barred by Rule 9.
7. In these circumstances, I have come the conclusion that the lower Courts were wrong in dismissing the plaintiff's suit as barred by Rule 1. I would, therefore, set aside their decrees and remand the case to the District Munsif for trial on the merits. Plaintiffs must have their costs in this and the lower Appellate Courts from the ninth defendant, and there will be an order for refund of Court-fees paid by them in those Courts.
8. I agree.