Richard Garth, C.J.
1. The plaintiff sues in this case to recover a small piece of ground with the building upon it; and the suit has been dismissed in the Court below, upon the ground that the plaintiff is precluded by Section 103 of the Civil Procedure Code from bringing it.
2. It appears that the piece of land, which is the subject of the suit, belonged formerly, together with other land, to one Abdool Hye, and that two several portions of this land were sold under an execution against Abdool Hye on the same day; one portion, No. 155, was sold to a Mr. Linton; and another portion, No. 147, to Afzul Rabbani, the present defendant.
3. The plaintiff in this suit bought Mr. Linton's share at a sale in execution of a decree; and he claims the piece of land now in suit, as belonging to the portion numbered 155, which Mr. Linton purchased.
4. On the other hand, the defendant Afzul Rabbani claims it as part of the piece numbered 147, which he purchased; and he has set up as a defence to the plaintiff's claim a judgment in a former suit which was brought by Mr. Linton for the rent of No. 155 against a person named Harper. That suit was dismissed under Section 114 of Act VIII of 1859, (which corresponds to Section 103 of Act X of 1877) because Mr. Linton did not appear at the trial.
5. Now Section 103 says, that 'when a suit is wholly or partially dismissed under Section 102,' (that is, where the defendant appears, and the plaintiff does not appear) 'the suit shall be dismissed; and the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.'
6. The defendant here says that the former suit was brought for the same cause of action as this suit, and that therefore the plaintiff is precluded from bringing it.
7. Both the Courts below have dismissed the suit upon that ground; and the plaintiff consequently appeals to us.
8. Now in order to determine whether those Courts were right, we must see what the nature of the former suit was.
9. It was a suit brought by Mr. Linton, the plaintiff's predecessor in title, against Mr. Harper, for the rent of the piece of land which is the subject of this suit. The defendant pleaded that the present defendant, Afzul Rabbani, was his landlord; and that the piece of ground belonged to Afzul Rabbani as being part of lot No. 147.
10. Upon this defence being set up, the Court considered Afzul Rabbani as the person really interested in the dispute, and directed him, to be made an intervening defendant. Accordingly Afzul Rabbani, intervene, for the purpose of supporting Mr. Harper's case, that the piece of land formed part of No. 147, and therefore was not Mr. Linton's property.
11. That suit was dismissed, because Mr. Linton did not appear at the trial; and in this case the Courts below have held, that as Afzul Rabbani was made an intervening defendant in the former suit for the purpose of having his title to this piece of ground decided as against Mr. Linton, the present plaintiff, who claims under Mr. Linton, is precluded by the result of that suit from trying this suit against Afzul Rabbani; and it has been argued here that the former suit was not solely for rent, but it was also for a declaration of the plaintiff's title to the land in respect of which the rent was claimed.
12. We have ascertained what the real nature of the former suit was; and we find that it was not brought for possession of the land now in question, but merely to recover rent from Mr. Harper, though the plaintiff certainly asked for a declaration by the Court that he was entitled, as against the defendant, to the land of which the rent was claimed.
13. That being so, I am of opinion that the Courts below were wrong in deciding that Mr. Linton, (or rather the plaintiff in this suit who claims under Mr. Linton) is precluded from bringing this suit to try the title to the land, as against the present defendant.
14. No doubt an issue was raised in the former suit as between Mr. Linton and the present defendant as to the title to the land; but the suit was not brought against Afzul Rabbani, nor was it brought to try the title to the land, or to obtain possession of it as against him. It was simply brought to recover rent, and to have Mr. Linton's title as landlord declared as against Mr. Harper as his tenant. The question of title to the land as between Mr. Linton and Afzul Rabbani was merely raised incidentally to the main question. The matter is clearly not res judicata; and I consider the operation of Section 103 of the Code of Civil Procedure is confined to those cases only, where a second suit is brought for the same object and cause of action as the suit which is dismissed. Applying that principle to the present case, Mr. Linton, or those claiming under him, would no doubt be precluded from bringing a suit for the same rent which was sued for in the former suit; but he is not precluded from bringing a suit to try the title to the land as against the present defendant.
15. The judgments, therefore, of both the lower Courts must be set aside, and the case must go back to the first Court to be tried on its merits. The respondent must pay the costs of this appeal, and the costs in the lower Courts will abide the result of the cause.
16. I also think that this case should be remanded to be tried on the merits.
17. The facts are very simple: Two lots, numbered respectively 155 and 147, originally belonged to Abdool Hye. These lots were sold in execution on the same day. Lot 155 was purchased by one Mr. Leslie, who sold to Mr. Linton, whose interest was again sold in execution and purchased by the plaintiff in the present case. Lot No. 147 was purchased by Afzul Rabbani, the defendant in the case now before us.
18. Mr. Harper is a tenant of a portion of the land, as to which there is now a dispute whether it constitutes part of lot No. 155 or lot No. 147. Mr. Linton, believing that it formed part of lot No. 155, sued Harper for rent, relying upon a covenant in the lease, under which Harper held, to pay rent to Abdool Hye and his assigns.
19. In answer to that suit, it was pleaded that the particular piece of land occupied by Mr. Harper was not part of lot No. 155, but was part of lot No. 147, and that the rent was therefore payable to Afzul Rabbani. It would appear that Abdool Hye, the former owner, had instructed Mr. Harper to pay his rent to Afzul Rabbani.
20. This being so, it became necessary, in order to decide the suit for rent, to try the question of title; in other words to try which, plot of land contained the one bigha held by Mr. Harper.
21. The Court in which the rent suit was pending thought fit to make Afzul Rabbani a party to that case. Now this is a course the impropriety of which has been repeatedly pointed out by this Court. However, it was done, and an issue of title was raised, but when the case came on for hearing, Mr. Linton, the plaintiff, did not appear, and the case was dismissed under Section 114 of the old Code, Act VIII of 1859. It is now contended that the present suit, which is a suit brought to establish the plaintiff's title as against Mr. Harper and Afzul Rabbani is barred by the dismissal of the previous suit. This I think it clearly is not. It certainly is not barred by Section 13 of the Code of Civil Procedure, for the question of title was not heard and decided in that suit; and then as regards the express provision of Section 114 of Act VIII of 1859, which provides that a plaintiff whose suit has been dismissed for default shall be precluded from bringing a fresh suit in respect of the same cause of action, it appears to me that the cause of action in the previous suit was the non-payment of rent, and this is a different cause of action from the cause of action in the present suit.
22. It is to be observed that the former suit was brought upon a Court-fee stamp assessed according to the value of the rent, and that there was no prayer for possession. It is clear, therefore, that no cause of action arising out of non-delivery of possession was alleged or put forward in the plaint; nevertheless, if the Court had tried the issue of title, the finding upon that issue must have had the effect of res judicata as between the parties, but inasmuch as that issue was not tried, the question raised thereby was not heard and decided, and therefore the matter is not res judicata, having regard to the express language of Section 13 of the Code. The cause of action in the present case is, to my mind, with reference to Section 114. of Act VIII of 1859, clearly distinguishable from the cause of action in the previous case; and the present suit is not therefore barred by the express provision contained in this section, which has moreover since been repealed.