Sadasiva Aiyar, J.
1. Plaintiff is the appellant. He and the defendants Nos. 21 to 24 are the urallers of the plaint devaswom. The plaintiff brought the suit on behalf of the devaswom to redeem a mortgage granted in February 1887 for Rs. 3,500, the first defendant having executed the registered kaichit, or counterpart Exhibit A, to the devaswom urallers. Both the Courts found that the 1st defendant acted beyond the scope of his authority in executing this kaichit, Exhibit A, and that he did not properly represent the tarwad of the defendants Nos. 1 to 16 in executing the kaichit. The Subordinate Judge, however, gave a decree for redemption of an old mortgage of 1833 granted by the devaswom to the family of the defendants Nos. 1 to 16 for Rs. 1,885-11-5. The learned District Judge, however, held that as the devaswom had brought a prior suit No. 320 of 1886 for redemption of this old mortgage of 1833 and had withdrawn that suit without liberty to bring a fresh suit, the plaintiff cannot be allowed under Order XXIII, Rule 1, Clause 3, to succeed in this second suit and to obtain the same relief which he had prayed for in the prior suit. The principal question in this case, therefore, is whether by the proceedings in the former suit of 1886, the plaintiff is debarred from redeeming the mortgage of 1833 (Mr. Ramachandra Aiyar, for the appellant, did not seriously contest the conclusion of the lower Courts that the mortgage of 1887 was not binding on the tarwad of defendants Nos. 1 to 16).
2. The case of Brij Nandan Singh v. Kailash Ternary 24 Ind. Cas. 17, quoted by Mr. Ramachandra Aiyar, was decided on the ground that the previous suit between the parties was 'dismissed for default' of both parties and that such a dismissal did not operate as res judicata so as to bar the second suit. The learned Judges do not state in their judgment under what provision of the Civil Procedure Code, the first suit was dismissed 'for default' of both parties. If they intended to hold that the first suit was dismissed under Order IX, Rule 3, their decision is, no doubt, supported by Order IX, Rule 4. Whether the learned Judges were right in concluding on the facts proved in that case that the dismissal of the former suit was a dismissal for default of appearance on both sides, is a question on which I need not express an opinion, especially as I am not sure that the facts are correctly The facts as stated in the judgement are quite correct.--Ed. and fully set out in the unauthorized report of Brij Nandan Singh v. Kailash Tewary 24 Ind. Cas. 17. I might further add that, in the case in Brij Nandan Singh v. Kailsash Ternary 24 Ind. Cas. 17, the defendant, whose former suit as plaintiff was treated as dismissed for default of prosecution, relied on the plea of res judicata because the plaintiff as defendant in the former suit failed to instruct his Vakil to defend the case. It is difficult to see how such a plea lies at all in the mouth of the defendant when his former suit was dismissed. The learned Judge's reference to Doma Ram v. Raghu Nath Pandit 10 C.W.N. 40 seems to me to be (with the greatest respect) irrelevant, but (as I said before) the unauthorized report might have omitted With due deference to His Lordship it is submitted that no part of the judgment, which contains all the necessary facts, has been omitted from the report.--Ed., to state all the necessary facts.
3. As regards the case of Doma Ram v. Raghu Nath Pandit 10 C.W.N. 40, quoted in Brij Nandan Singh v. Kailash Tewary 24 Ind. Cas. 17, I respectfully but unhesitatingly dissent from that decision, as I am unable to hold that the dismissal of a plaintiff's claim against a particular defendant for failure of the plaintiff to produce evidence against that defendant, though the plaintiff did appear in Court on the date of hearing and even obtained a decree against other defendants, was a dismissal for default of the plaintiff's appearance. In the present case, both parties appeared on the date fixed for the trial of the suit and at their request, the first suit was struck off as settled. I am unable to hold under the circumstances that the former suit was not withdrawn by the plaintiff [see also Gulkandi Lal v. Manni Lal (1904) A.W.N. 66 or to hold that the suit was dismissed for default of the appearance of both parties.
4. Order XXIII, Rule 1, allows to a plaintiff unfettered liberty to withdraw his suit against all or any of the defendants; in other words, he can abandon the whole of his claim against every defendant or against any one or more of the defendants. He can also abandon part of his claim against any one or more of the defendants. But such withdrawal or abandonment is done at the risk of his losing all rights to litigate the subject-matter of the claim or claims so abandoned or withdrawn from the adjudication of the Court, unless he got the permission of the Court, to re-litigate the same. In the- present case, no such permission was obtained when the former suit was struck off owing to the plaintiff's withdrawal of the claim made in that former, suit to redeem the mortgage of 1833. The present suit was brought to redeem a later mortgage of February 1887 which was found to be an invalid transaction. The plaintiff, who is the appellant in the second appeal, now wants to be allowed to treat the suit as a suit for redemption of the old mortgage of 1833, but the short answer to this claim of the plaintiff is 'you brought your former suit No. 320 of 1886 in the Temelprom Munsif's Court for redemption of this same mortgage of 1833 and you withdrew it without permission and you are barred by Order XXIII, Rule 1, Clause 3.'
5. It was, however, ingeniously argued on the appellant's side that the alternative claim to recover the property is not a claim as mortgagor to redeem the mortgage of 1833, but a claim to recover possession of the properties on the basis of the plaintiff's title as jenmi of the lands from the defendants who are not the jenmi owners.. If I. understood this over subtle contention rightly, the steps of the reasoning seem to me to be as follows: 'I (plaintiff) am the owner. An owner is entitled to possession prima facie. You (the defendants) admit you are not the full owners. Persons who are not full owners are prima facie not entitled to possession. Therefore, give me back my property. If you say that you are entitled to possession as the mortgagees under the mortgage of 1833, then receive your money and give up possession. As I offer to pay the money only in consequence of your reply to my claim for possession based on my title, that offer would not convert my suit into a suit for redemption of your mortgage of 1833 and I am not, therefore, barred by Order XXIII, Rule 1, Clause 3, in consequence of my withdrawal of the former suit.' In support of this argument, the decision in Parambath Manakkal v. Puthengattil Moosamu 28 M. k 406 is relied upon. In that case the former suit was brought to redeem a, mortgage of 1884 of properties which might be called (A) properties. That mortgage was a renewal in part of a mortgage of 1876 which included both (A) properties and (B) properties. The mortgage of 1876 was relied upon in that former suit in support of the validity of the mortgage transaction of 1884 sought to be redeemed in that former suit. That first suit was dismissed on the ground of the invalidity of the mortgage of 1884. The second suit was brought by the plaintiffs to redeem (A) properties alone on the strength of 'the plaintiff's title and on the demises of 1876 and 1884.' The decision of the learned Judges, if I have understood it rightly, concedes (a) that if the second suit is treated as one brought for redemption of the mortgage of 1884, it is barred as res judicata; (b) if it is treated as a suit for redemption of the mortgage of 1876 alone, it is barred by Section 43 of the old Civil Procedure Code corresponding to Order II, Rule 2, of the new Code; (c) but as it is based on the plaintiff's title as owner also, he could obtain possession on payment of whatever is due to the mortgagees on foot of the original kanom of 1876 and for improvements.
6. There are no doubt distinctions between the facts of the present case and the facts of the case of Parambath Manakkal v. Pathengattil Moosamu 28 M.k 406. Though the later suits in both cases were based on title also, the first suit in Parambath Manakkal v. Pathengattil Moosamu 28 M.k 406, was brought on the invalid later mortgage, while the first suit in this case was brought on the valid earlier mortgage. There is also another distinction between the case of Parambath Manakkal v. Pathengattil Moosamu 28 M.k 406 and the present case, namely, while the defence plea as to the bar of the second suit was based in Parambath Manakkal v. Pathengattil Moosamu 28 M.k 406 on res judicata and on Section 43, the bar of the second suit in this case is based on Order XXIII, Rule 1, Clause 3. But I do not like to distinguish the case of Parambath Manakkal v. Pathengattil Moosamu 28 M.k 406 from the present case on these grounds. The common feature in the two cases is that the second suit claimed relief on the plaintiff's title as the owner of the properties sued for, and on that fact an agreement was alleged in that suit (and is alleged also before us) that it saves all statutory bar. And this fact was naturally pressed with great strenuousness by Mr. Ramachandra Aiyar. After giving my best consideration to his argument, I have come to the clear conclusion that it should not be accepted. The result of accepting his contention would be, that a plaintiff, who 40 years after the date fixed for redemption of a valid mortgage, withdraws a suit brought for redemption thereof without liberty to bring a fresh suit, (the defendant having admitted in the suit that he was in possession of the mortgaged properties on foot of the mortgage), can again bring a suit within 60 years of the dismissal of the first suit for possession; basing it for claim on his title as owner, and he can succeed in obtaining a decree for redemption by cleverly framing his plaint as a plaint which is not solely based on his right to redeem. As said in Arunachalam Chetty v. Meyyappa Chetty 8 M.L.J. 28, quoting West J., the plaintiff's 'cause of action, into what ever Protean forms it may be moulded by the ingenuity of Pleaders, is to be regarded as the same, if it rests on facts which are integrally connected with those upon which a right and infringement of the right have already been once asserted, as a ground for the Court's interference.' I think that this principle was the basis of the Full Bench decision in Bommidi Bayyan Naidu v. Bommidi Suryanarayana 17 Ind. Cas. 445, and it is clear to me that Parambath Manakkal v. Pathengattil Moosamu 28 M.k 406 must be deemed to have been overruled by the Full Bench decision in Bommidi Bayyan Naidu v. Bommidi Suryanarayana 17 Ind. Cas. 445. By a manipulation of the form of the plaint in the later suit, in which the subject-matter and the relief claimed are substantially the same as those of the former suit, you cannot be allowed to get round the statutory provisions enacted by the Legislature for the protection of the defendants from repeated harassments in respect of the same subject-matter and reliefs.
7. In the last resort the plaintiff seeks to redeem the mortgage of 1856 for Rs. 2,000 set up by the defendants in answer to the plaintiff's suit brought for redemption of the suit mortgage of 4th February 1887, which was found to be legally invalid as against the defendants. He relies on the case of Kadakamvalli Sankaran Mussad v. Mokkath Ussain Haji 17 M.L.J. 329. The defendants, however, claimed to hold the lands not only under the document of 1856 (which they have not produced) but under three other purakadoms (or mortgages for additional sums lent), the total of the additional sums lent amounting to Rs. 4,000. These purakadoms (Exhibits 23, 24 and 26), however, were found either not to affect the plaint items 1 to 38 or not to be binding on the plaintiffs by both the lower Courts. The respondents' Vakils, however, contend that though those three purakadoms were found not to bind the plaintiff's devaswom, the plaintiff, having failed to prove the validity of the plaint mortgage of 1887, could be allowed to redeem the lands only on the footing that all the mortgages set up by the defendants were true and binding and he cannot be allowed to change the suit into a suit for redemption of only one of the mortgages set up by the defendants, I do not see much force in this argument. It is, no doubt, an indulgence granted by the Court in its discretion to allow the plaintiff to amend the prayer in the plaint [though the discretion of the Court should be freely exercised (see Order VI, Rule 17) unless the amendment would make the suit to relate to a wholly different subject-matter]. But it does not follow that the defendants are entitled to insist that their defence in its entirety should be accepted by the plaintiff by reason of the grant of permission to the plaintiff to amend his suit. I am, however, pressed with the observations of Sir Subramania Aiyar and Benson, JJ. in Achuta Menon v. Achutan Nayar 21 M.k 35. The observations are as follows: 'It is scarcely necessary to say that one of the objects of Section 373 (old Civil Procedure Code) is to protect a defendant from being harassed by repeated litigation with reference not only to the allegations constituting the plaintiff's case, but also as to those which constitute the defence or any part of it' Now in the former suit of 1886, the defendants set up (see paragraphs 7 and 8 of Exhibit B, the written statement in that suit) that their right to hold the lands 1 to 38 rested on the kanom of 1856 for Rs. 2,000 and also on a purakadom of 1863 for a further advance of Rs. 2,000. That purakadom is evidently in the document Exhibit 26. In this case under the above ruling in Achuta Menon v. Achuta Nayar 21 M.k 35, I think that the plaintiff cannot be heard to contest the validity as against the devaswom of the purakadom of 1863 (Exhibit 26) and that he could be allowed to redeem only on payment of the sums due both under the document of 1856 and the purakadom of 1863 (Exhibit 26).
8. In the result and following Kadakamvali Sankaran Mussad v. Mokkath Ussain Haji 17 M.L.J. 329, I would allow the plaintiff to redeem the mortgage of 1856 (admitted by the defendants) and the purakadom of 1863 (which the plaintiff could not dispute) on payment of the amount due thereunder and of the value of the improvements after deducting the value of the purappad due according to these documents from 13 years before suit (that is, from and including the Malabar year 1073), the plaintiff having admitted in his plaint receipt of all prior purappads due to him as mortgagee. The terms of the document of 1032 are set out in paragraph 7 of Exhibit B (the written statement in Original Suit No. 320 of 1886). The value per para of the Michavaram paddy and the value of the improvements as decided by the Munsif and accepted by the District Judge will be followed in drawing up the decree of this Court. Six months' time is granted for redemption. The costs of the contesting respondents throughout must be paid by the appellant and will carry interest at 6 per cent. per annum from this date and will be added to the amount payable for redemption. Though the decision in Kadakamvali Sankaran Mussad v. Mokkath Ussain Haji 17 M.L.J. 329 does not expressly state that the plaintiff who is allowed to redeem a mortgage other than that which he sought to redeem (but which the defendant admitted as the one under which he was holding) ought to amend his plaint, I agree with the observation made by my learned brother during the course of the arguments that the better course is to direct the plaintiff to so amend his plaint before passing the decree. I would, therefore, direct the plaint to be amended by adding an alternative prayer for redemption of the mortgages of Thulam 1032 and 1039, the amendments to be made in two weeks from this date. In default, the second appeal will stand dismissed with costs. On compliance, the decree for redemption which I have already indicated will issue.
9. I concur.
10. This second appeal coming again for hearing the Court delivered the following
11. Interest at 12 per cent. per annum will be allowed on the puramkatam amount till the date when the prior kanom would have to be redeemed in the usual course.
12. Twenty-fifth April 1916 will be the date fixed for redemption.