Tottenham and Agnew, JJ.
1. This is an appeal against an order of the lower Appellate Court remanding the case under Section 562 of the Code, the suit having been dismissed by the first Court on the ground that it was barred by Section 43 of the Code. Other matters were brought to our notice by the appellant's pleader, and he proposed to argue against the order of remand in respect of those other matters, but we confined him to the one point which is before us in this appeal, namely, whether the District Judge was right or wrong in holding that the suit is not barred by Section 43.
2. The case set up in support of the first Court's decision was that the plaintiff had previously brought a suit for a declaratory decree alleging himself to be in possession of the property in dispute. That suit was dismissed on the ground that the plaintiff was not in possession.
3. The present suit is brought to recover possession of the same property. It is urged, and was held by the first Court, that inasmuch as the plaintiff was found to be out of possession when he brought his first suit, he ought then to have brought his suit to recover possession. The lower Appellate Court has set aside that finding following the decision of this Court in Jibunti Nath Khan v. Shib Nath Chuckerbutty I.L.R. 8 Cal. 819 which decision was followed in another case given in the footnote of the same report. We think that the lower Appellate Court was right in following that decision. Section 43 refers to cases brought upon one and the same cause of action. In the case to which the lower Appellate Court refers--Jibunti Nath Khan v. Shib Nath Chuckerbutty I.L.R. 8 Cal. 819 the learned Judge who delivered the judgment says, at page 822, that 'a cause of action consists of the circumstances and facts, which are alleged by the plaintiff to exist, and which, if proved, will entitle him to the relief, or to some part of the relief prayed for, and is to be sought for within the four corners of the plaint.' It appears that the circumstances and facts alleged in the present plaint were not the same as those alleged in the plaint in the former suit. That being so, we think that the Judge was right in saying that the two suits were not on the same cause of action. We accordingly dismiss this appeal with costs.