1. The respondent as plaintiff instituted a suit against the appellants as defendants for ejecting the latter on declaration of his own title on the following allegations that the lands were purchased at a rent-sale by the landlords in execution of a decree for rent obtained by them against the one Bishun Charan Das and others and that the landlords took symbolical pos me session after such purchase and there or after leased the same out to the respondent but when the respondent went to take possession he was resisted by the as appellants who had no title. The appellants in their defence alleged that they had been in possession for many years as occupancy ryots under that tenure-holders and that the plaintiff himself had recognized them as such. This suit was dismissed. The judgments of the trial Court and of the t appellate Court in that suit are not very clear but it appears to have been held by the latter Court that though the recognition had not been proved the respondent or his lessor had never been in possession, and that the appellants had been in possession for over 12 years and so the suit was barred by limitation.
2. The respondent then instituted the present suit with the same prayer but this time alleging that the appellants were under-ryots and professing to have served notices on them under Section 49, Bengal Tenancy Act. The trial Court held, on a preliminary issue, that the suit was barred by res juaicata view of the earlier decision aforesaid. On appeal by the respondent the Sub-ordinate Judge had held that the suit is not so barred and has remanded the suit for trial on the other issues. Hence the present appeal.
3. The decision of the Subordinate Judge has been assailed upon two broad grounds, being the grounds on which the Munsiff rested his decision. They are first, that a prayer for declaration of title such as there was m the previous suit not having been granted should be deemed to have been refused under Expln. 5, Section 11 of the Code and so the present suit is barred and second the present suit is also barred because of the principle of constructive res jdicata as enunciated in Expln. 4 to that section.
4. Now on a perusal of the judgments of the two Courts in the previous suit g it is quite clear that the plaintiff's title n under the lease was never disputed an suite was not put in issue, and therefore Le was not a matter on which any association was called for. It is true that the suit was dismissed on the ground of limitation, but that only meant that the defendants were m re occupation as tenants which was the only right they claimed well over 12 years. The declaration of title was he asked for on the footing of the defendants being trespassers. But once the hat defendants asserted only a tenancy right and in this case they went further and pleaded recognition by the plaintiff plaintiff, there was no necessity for the ach. Court to go into the question of the plaintiff's title. It may be mentioned that it is only by a from of pleading peculiar to this country that a declaration of title as ancillary tot the relief for possession is generally sought for. The silence of the decree on the question of the plaintiff's title, in view of the pleadings, cannot, in our judgment be construed as negativing the plaintiff's title which was admitted.
5. Then, as regards constructive res judicata. The causes of action in the but two suits are entirely different. At the Slants time of the first suit the cause of act on which the present suit was based did not come into existence and, trial so in no view can it be said that the two causes of action could be joined together to form the foundation for relief in the previous suit. Even in cases in which the plaintiff might have made the second line of attack an alternative basis for his prayer for relief as to khas possession, the question always remains, whether he ought to have done so, for the words of the explanation are 'might' and 'ought.' There is abundant authority for the view that where the legal relation put forward in the subsequent suit is different from what was alleged in the previous one the subsequent suit is not barred because it is clear that it cannot be said of any matter that it ought to have bean set up as a ground of attack in the former suit if its introduction would have been incongruous to the matter of that suit. Unless it can be said that it was obligatory on the plaintiff to adopt that course the principle of constructive res judicata cannot apply : Deputy Commissioner of Kheri v. Khanjan Singh  29 All. 331, Soni Lal v. Kanhaiya Lal  35 All. 1227. Where a plaintiff sues for khas possession against a defendant alleging trespass, it is hardly obligatory on him to plead in the alternative that the defendant is a tenant; the two are certainly inconsistent pleas. There is no provision of law which makes it obligatory on a plaintiff to unite the two causes of action, even if such union is permissible under the law.
6. The result is that in our judgment the present suit is not barred and the Subordinate Judge's order is right. The appeal is accordingly dismissed with costs two sold mohurs.