1. This is a plaintiff's appeal against a judgment and decree of the District Judge, Ambala, dismissing an appeal against a decree of the trial Court.

2. On the death of Mangal, a proprietor in the village, his estate was inherited by his widow, Mt. Nano. She executed a registered deed of gift in favour of her daughter Dayan, but the daughter died in 1919 and the lands were mutated in the name of Sardara, son of Dayan. The husband of payan was Chet Ram. In 1926, Sardara died leaving only a widow, Waryami, and the lands were mutated in her name. She died in 1939 or 1940 and the lands were mutated in the name of Chet Ram, the father of Sardara.

3. Upon this the Patlidars filed a suit for declaration that the property left by Mangal was theirs and they were in possession as such. After giving the history of the land they alleged that as Sardara had died issueless, by custom as well as by law, the plaintiffs who were the Pattidars and belonged to the same 'got' had a right to succeed and as they were in possession they were entitled to bring a suit for declaration. The cause of action it was alleged, arose on the 20th of December, 1940, when the defendants refused to accept their rights. It was prayed that a decree for declaration in regard to the land in dispute be passed against the defendants. Objection was taken by the defendants, who were the sons of Chet Ram that a suit for declaration did not lie. On the 18th of June, 1941, the suit was dismissed on the ground that the plaintiffs were not in possession and they refused to amend their plaint. On appeal being taken to the District Judge, it was held that excepting three Khasra numbers the plaintiffs were not in possession of the land in dispute and the Suit would lie only in regard to these Khasra numbers and not with regard to that portion of which they were not in possession. He therefore allowed the appeal in regard to those three Khasra numbers and remanded the case for trial on merits in respect of those fields. On remand the trial Court dismissed the suit on the 4th of December, 1942, under Order IX, Rule 8, Civil Procedure Code. It would thus appear that the suit in regard to three Khasra numbers was dismissed under Order IX, Rule 8, Civil P. C., and no application was made for setting aside the dismissal for default and the suit in regard to the rest had already been dismissed because the plaintiffs were not in possession.

4. On the 20th of January, 1943, the Pattidars brought a fresh suit for declaration. In this plaint they did not refer to the previous litigation at all. They again alleged almost in identical terms as in the previous suit as to how Chet Ram, the father of the defendants, got mutation of the land effected in his name. They also alleged that the Pattidars who belonged to the same 'got' had a better right to succeed than the father of Sardara who was the son-in-law of Mangal. In para. 8 they stated:

"As the land in dispute is in possession of the Pattidars of the same 'got' they are lawful heirs (Waris). Therefore the plaintiffs have a right to bring the suit."

5. In para. 9 it was alleged that about 15 days before the defendants, who were minors, had refused to recognise the rights of the plaintiffs. The cause of action arose on the 20th of December, 1940. They therefore prayed that a declaration be given in regard to 176 bighas 19 biswas of land in their favour. Defendants pleaded that the suit was brought under Order IX, Rule 9 and both the trial Court and the District Judge held that the suit was so brought.

6. In appeal, it is submitted that the two suits are not being brought on the same cause of action because in the present suit it is alleged that 15 days before the suit was brought the defendants again refused to accept the title of the plaintiffs. I find that excepting that the plaintiffs have alleged that once again (i.e. 15 days before the suit) the defendants have refused to recognise and admit the rights of the plaintiffs, there is no difference between the two plaints, i.e. the plaint in the present suit and in the previous suit.

7. Order IX, Rule 9(1) is as follows:

"IX.

9(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."

8. It shows that where a suit is wholly or partly dismissed under Rule 8 the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action. There is no doubt that in the previous suit a part of the suit was dismissed under B. 8 and with regard to the rest the appellate Court had decided against the then plaintiffs. Mr. Harbans Singh Gujral relies firstly on ' HAKIM SINGH v. WARYAMAN', 140 Pun Re 1907. This was a case where it was held that a suit for declaration of title by a person in possession is not barred if attempt is made to oust him from the land although a right to sue the defendant had already accrued because the defendant had been recorded as owner of the property in the Settlement Record. This case has no application to the facts of the present case.

9. He next relied on a judgment of the Madras High Court in 'ASIA BIVI v. SEHU MOHAMED ROWTHER', 60 Ind Cas 201 (Mad), where it was held that an order under B. 8 when read with Rule 9 of Order IX, Civil P. C., has not the effect of 'res judicata' on a subsequent suit and therefore a suit for declaration that an alienation in favour of the defendants was invalid if dismissed for default, does not bar a subsequent suit for declaration and separate possession. It was remarked by Krishnan, J., that the relief asked for in the two suits has no bearing on the cause of action and the causes of action are generally different where the reliefs are different. The cause of action in the first suit, said the learned Judge, is not the same as in the second suit though the title alleged is the same and the title is only a part of cause of action; the ground of claim in the first suit was an alienation by the widow and subsequent dealings by the alienee and in the second suit there was super-added the intention of the plaintiff not to continue any longer in the joint possession. This it was held, was a different cause of action. This case again does not apply to the facts of the present case.

10. Reference was next made to a judgment of their Lordships of the Privy Council in 'Chand Kour v. Partab Singh', 16 Cal 98 (PC), Where it was held that dismissal of a suit under Section 102, Civil p. C. (O. IX, Rule 8 now) does not operate as 'res judicata'. It precludes a fresh suit in respect of the same cause of action, referring, irrespectively of the defence or the relief prayed entirely to the grounds, or alleged 'media', on which the plaintiff asks the Court to decide in his favour. In this case the brother's sons as nearest agnates brought a suit for declaration that a gift made by the widow of the deceased proprietor in favour of her daughter's son could not operate against their right of succession. A prior suit before the deed of gift brought by the present plaintiffs for declaration and injunction restraining the widow from alienating the same estate had been dismissed in default and it was held that the causes of action in the two suits were identical and a fresh suit could be brought. At p. 102 Lord Watson observed as follows:

"The ground of action in the plaint of 1878 is an alleged intention on the part of the widow to affect the estate to which the plaintiffs had a reversionary right by selling it, in whole or in part, or by affecting it with mortgages. The cause of action set forth in the present plaint is not mere matter of intention, and it does not refer to either sale or mortgage;. It consists in an allegation that the first defendant has in point of fact made a 'de present' gift of their whole interest to a third party, who is the second defendant. That of itself is a good cause of action if the appellants' right is what they allege. It is a cause of action which did not arise, and could not arise until the deed of gift was executed, and its execution followed the conclusion of the proceedings of 1878."

It will be noticed that the cause of action in the second suit only arises after the gift was made and did not arise until the gift had been made and therefore the second suit could not be barred under Rule 9.

11. Reference was then made to 'Tarit BhuSan Bai v. Skidhar Salagram Shila Thakur', AIR 1942 Cal 99, but the facts of that case are not identical with the facts of the present one and I doubt very much if the rule laid down in that case would apply to the facts of his case.

12. Counsel then referred to 'Balkishan v. Raghubar Dayal', 45 All 81, Where it was held that the failure of a suit to eject the defendant as a tenant would not bar a subsequent suit based on the grounds that the possession of the defendant was permissive and that in the previous suit he had denied the title of the plaintiff to the premises from which it was sought to eject him. This case has very little to do with the present suit.

13. In reply Mr. Gandhi relied on 'Maung Ba Tu v. Ma Thet Su', 5 Rang 785, Where it was held that a dismissal under Order 9 Rule 8 bars a suit on the same cause of action, but does not apply to a right to partition. Not much assistance can be drawn from the facts of this case.

14. Mr. Gandhi finally relied on a judgment of Mr. Justice Jai Lal in 'Muhammad Khan v. Mt. Nekan', AIR 1926 Lah 562, where again it was held that a subsequent suit, in effect the same as previous suit but where a different relief is claimed, is barred under Rule 9, Order IX, Civil Procedure Code.

15. What I have to determine in this case is as to whether the two suits have been brought on the same cause of action. In both suits I find that the plaintiffs claimed that they were in possession as Pattidars of the same 'got' and prayed for declaration that they had a better right to remain in possession. In the two plaints, which I have referred to above, there is no difference at all in the allegations made excepting the addition in the second one of a re-denial of plaintiffs' right 15 days before the suit. In my opinion, if a suit is dismissed for default no second suit is possible on the same cause of action and that is exactly what the plaintiffs are trying to do in the present case. In the previous suit the plaintiffs had asked for declaration with regard to that portion of the land of which they had been held to be in possession and the suit was dismissed in default and therefore under Order IX no second suit can be brought on that cause of action.

16. Mr. Gujral then submitted that in regard to that portion of which he was held not to be in possession and he claims to be in possession now he can bring a second suit. I am unable to agree with this submission. The appellate Court had held in the present suit that he was not in possession. There is no allegation in the present plaint that he had subsequent to that adjudication come into possession. It was really bringing a second suit on the same cause of action, and, in my opinion, it is barred, if not for any other reason then for this that the second suit offends against the well-known maxim that no man shall be twice vexed with one and the same cause of action; see 'Amir Din v. Shidev Singh', AIR 1947 Lah 102 and 'Harnam Singh v. Bakshish Singh', RSA No. 6 of 1949, and I am therefore of the opinion that the suit was rightly dismissed and I dismiss this appeal with costs throughout.