1. This second appeal has been referred to a Division Bench by Ranawat J., as it involves an important point of law relating to res judicata and has come before us for hearing.

2. For the proper understanding of the case, the following pedigree table is given:

SHAH SHANKARLAL | ___________________________________________________ | | | Pannalal Chokchand Maganlal widow | | Lalkunwarba | Jawaharlal | (Deft. No.1) ___________________________________________________________________ | | | | Chagganlal Kesrimal Shantilal Kantilal (Plaintiff) ( Deft.No.2) (Deft.No.3) (Deft.No.4)

3. On 4-4-1942, Chhaganlal filed the present suit in the court of Sadar Devani Raj Devgarh, Parlapgarh State, It is alleged in the plaint that in Smt. 1956, a partition had taken place amongst the three sons of Shankarlal by which one house situated opposite the house of Bhuraji in the town of Partapgarh was allotted to the share of Maganlal while another house situated in Gopalganj was jointly allotted to Pannalal and Chokchand and the moveable property remained in the possession of the widow of Pannalal.

This partition was confirmed by the parties subsequently. The house in Gopalganj remained in the possession of Pannalal and Chokchand. Pannalal died issueless and Chokchand died leaving four sons. After the death of Chokchand, his four sons became the owners of the whole house in Gopalganj. Mst. Lalkunwar Bai widow of Pannalal had mortgaged a portion of the house with Jawaharlal defendant No. 1 on 20-2-1937 for Rs. 1,000/- and the plaintiff had already filed a suit for the cancellation of the mortgage which was then pending.

The plaintiff further alleged that on 5-4-1939, the defendants had divided the property of Pannalal amongst themselves, which was against the interest of the plaintiff. The plaintiff claimed one fourth share in the house in Gopalganj. The defendants contested the suit on various grounds. One of the pleas taken by defendant No. 1 was that of res judicata on the ground that on 3-7-1947, the High Court of Partapgarh had dismissed the previous suit fifed by Chhaganlal.

It was held in that case that after the partition of Smt. 1956, there was no reunion between Pannalal and Chokchand that they were not members of the joint Hindu family but were separate and that Chhaganlal or his sons did not become the owners of the property left by Pannalal. It was further held that at the time of the death of the widow of Pannalal, her daughters and their sons were living and were the nearest next reversioners and that the plaintiff was not entitled to maintain the suit.

4. The present suit was tried by the learned Civil Judge, Partapgarh, and it was decided by him on 18-11-1952. He granted a preliminary decree to the plaintiff. He ordered that the house in dispute be divided in two equal parts. In one half, the plain till and the defendants were held entitled to get one fifth share each as heirs of Pannalal. In the other half, the plaintiff and defendants Nos. 2, 3 and 4 were to have equal shares as heirs of Chokchand. It was also provided that the plaintiff and the defendants shall pay the mortgage money in equal shares to redeem the mortgage of defendant No. 1. A Commissioner was appointed to divide the property by metes and bounds according to the above directions.

5. Jawaharlal filed an appeal to the court of the District Judge, Partapgarh, which was dismissed on 15-9-1954. The plea taken up by Jawaharlal that the suit was barred by res judicata on account of the decision of the High Court of Partapgarh was rejected by the learned District Judge. Hence, this appeal on behalf of Jawaharlal defendant No. 1.

6. In this court, the main argument urged on behalf of the appellant Jawaharlal is that the present suit is barred as the decision of the Partapgarh High Court dated 3-7-1947 operated as res judicata. In this connection, it may be pointed out that the widow of Pannalal died on 20-3-1937 and the previous suit was filed on 15-2-1940 after her death.

7. Both the lower courts, however, have passed a decree in favour of the plaintiff regarding the property of Pannalal on the basis that he was entitled to get the share in it, even if Pannalal and Chokchand had separated as he was one of his heirs.

who had sons and the plaintiff was not the heir of Pannalal and secondly, on the ground that even if the daughters and their sons are ignored, it was the duty of the plaintiff to allege and prove in the previous suit filed by him that he was entitled to whole or part of the house on the ground that he and his brothers became heirs of Pannalal after the death of Lalkunwarbai and as he failed to take such plea, the present suit was barred on account of the principle of constructive res judicata.

9. In the plaint in the present case, the plaintiff failed to plead specifically that he was claiming as heir of Pannalal after the death of Lalkunwarbai. In the absence of such plea an enquiry was not made as to whether any daughter, daughter's son of Pannalal were in existence at the time of the death of Lalkunwarbai. Both the lower courts have gone out of their way in deciding the case by presuming that the plaintiff was one of the heirs of Pannalal.

That was a matter which must have been definitely pleaded. Had it been so pleaded, an issue would have been framed thereon and the matter would have been properly investigated. In our opinion, it was not open to the courts below to award a decree to the plaintiff in the property of Pannalal on the ground that he was one of the heirs of Pannalal on the death of Lalkunwarbai. That part of the decree cannot be sustained on this ground alone.

10. As both the lower courts have considered at length the question of res judicata and as it has been argued at considerable length at the Bar, we think it proper to consider how far the principles of constructive res judicata can be applied in this case. But before we do so, we may mention that Jawaharlal was treated as a trespasser in the previous suit filed by the plaintiff and also in the present suit.

In the previous suit, the mortgage was treated as a nullity. In the present suit also, it is treated as a nullity. There is no prayer for the redemption of the mortgage treating it as binding on the plaintiff and the other heirs of Pannalal. There is also no suggestion in the plaint that Jawaharlal was one of the heirs of Pannalal after the death of Lalkunwarbai. In the circumstances, in our discussion on the question of res judicata we treat Pannalal as a trespasser.

11. Now, we proceed to consider the principles of constructive res judicata relevant to the subject under discussion. Explanation 4 to Section 11 of the Civil Procedure Code lays down

"any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."

As a corollary to this explanation, it may be said that such a ground of defence or attack would be held to be heard and finally decided against the plaintiff or the defendant, as the case may be.

12. The doctrine of res judicata is based on the principle that no man shall be vexed twice over the same cause. Under the main part of Section 11 if any matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties in a court competent to try the subsequent suit and which has been heard and finally decided by that court, it cannot be agitated again in a subsequent suit.

Explanation 4 takes the main section further by laying down that certain matters which might not have been directly or substantially in issue in the previous suit and might not have been decided shall be deemed to be directly and substantially in issue in the previous suit and shall be deemed to have been so decided. The extension of Section 11 on the lines of explanation 4 is merely the application of the principle that all matters in controversy between the parties relating to the subject-matter of the suit must be brought before the court of law once and for all, and it should not be left, either to the plaintiff or to the defendant to agitate over and over again.

Thus, if the plaintiff has several grounds on which he can make his claim in a court of law, he should put forth all the grounds on which he can make his claim. Similarly, if the plaintiff's suit can be resisted on various defences, all the defences must be pleaded. If somebody has omitted to do so, he cannot be permitted to agitate in future. There are certain obvious limitations in the application of the principles enunciated above.

The use of the words 'might' and 'ought' shows both the wide amplitude in which the explanation works as well as the restrictions under which it operates. 'Might' conveys the possibility of joining all grounds of attack or defence together, while 'ought' conveys the reasonableness or propriety of so joining them. The explanation means that all grounds of attack and defence must be taken even if they can only be taken up in alternative except in cases, when it would be inexpedient for a party to do so.

If, there is an alternative way of imposing a liability on the defendant, it ought to be made a ground of attack except in case where "matters are so dissimilar that their union might lead to a confusion" (Kameswar Prasad v. Rajkumari Rattan Koer, ILR 20 Cal 79 (PC)). It depends on the facts of each case to say whether the dissimilarities are such as may lead to confusion. No hard and fast rules can be laid down on this point. While it is not possible to lay down affirmatively any definite rules on this point, it may, however, be pointed out that in cases where the evidence to be produced in support of a particular ground is not destructive of the evidence to be produced for the other ground, that can be taken to support or defend a case, both of such grounds should be taken up by a party and if he fails to take up any such ground, he cannot escape the penalty provided under Section 11.

13. Now, take the case before us. The plaintiff based his claim on survivorship alleging that his father Chokchand and Pannalal had reunited and were members of the joint Hindu family. He could have very well said that in case he failed to prove that, he was entitled to recover the property from the defendant, as he along with his other brothers became a heir to Pannalal after the death of Lalkunwarbai.

For proving this contention, he had only to prove that after the death of Lalkunwarbai, there were no other persons entitled to succeed. This evidence cannot be in any way destructive of the evidence, which he had to produce on the point of survivorship. It was his duty to join both the grounds of attack in the previous suit and he could not have reserved the other ground for future. As he failed to do so, the second suit was barred by the principles of res judicata.

14. The view that we have taken is also supported by a number of authorities. The leading case on the subject is Guddappa v. Tirkappa, ILR 25 Bom 189. The plaintiff in that case had instituted previously suit No. 19 of 1895 against the defendant of that case by which they had prayed to be confirmed in possession of the land in suit and for an injunction on the ground that they were the sole surviving members of the joint family.

The suit was dismissed. The plaintiffs were deprived of the possession of the property for which they had brought the suit and they filed another suit for the recovery of possession alleging their title by heirship. This was held as res judicata. We may quote the following observations in the judgment of Jenkins, J. : --

"Now that the plaintiffs could in the former suit have alleged, in the alternative, their title as heirs, is conceded; equally, as it appears to me, they ought to have so alleged it. It was forbidden by no rule of pleading; on the contrary, it was necessary for the complete and final disposal of all questions as to the plaintiff's title .....

In my opinion, the plaintiffs ought to have pleaded their heirship as a ground of title; it existed at the date of the former suit; it is not suggested that they were ignorant of it, nor has any tenable ground of excuse been suggested before us. Therefore, I hold that Section 13 (now Section 11) applies."

Learned counsel for the respondent has argued that this authority has been dissented by the Madras High Court in the case of Ramaswamy Ayyar v. Vaithinatha Ayyar, ILR 26 Mad 760. The ground of dissent is that the cause of action which accrues by right of survivorship is quite distinct from the cause of action which would accrue to a party as a reversionary heir on the death of the deceased's widow and as the two rights accrue from totally different causes of action, explanation 2 is not applicable.

We may with utmost respect say that the question to be considered while applying explanation No. 2 to Section 11 is not the nature of the causes of action accruing to the plaintiff for making a particular claim, but whether he should have put forward his claim on the basis of several causes of action at one and the same time, That case was considered by Wallis J. in Masilamania Pillai v. Thiruvengadam Pillai, ILR 31 Mad 385 and it was held that the decision in that case was no bar to arriving to the conclusion that a person, who sued to recover the property as a reversionary heir of the deceased on an alleged relationship to the deceased is, when such suit is dismissed, debarred from bringing any suit for the same property as a reversionary heir under a different kind of relationship.

15. Illustrative of the same principle is the case of Mt. Mantorni v. Krishna Ballabh Rai, AIR 1949 Pat 340. In that case, one Hitlal Rai, a separated member of the joint family, had two sons Pulkit Rai and Mahadeo Rai, who were also separate. Pulkit Rai sold some land to the plaintiff Krishna Ballabh Rai, son of Mahadeo, on the 21st of January, 1926. On the 10th of April, 1926, Pulkit Rai executed a sale deed in favour of his daughter Mst. Thakani. The land demised by this sale-deed was part of the land covered by the sale deed of January, 1926. Pulkit Rai died in 1937 and his estate descended to Mst. Thakani.

She also died in 1939, but before her death, she executed a deed of gift in favour of Mt. Mantorni Krishna Ballabh Rai instituted a suit on the 20th of January, 1945 for a declaration that the deed of gift was fraudulent. He claimed that he was entitled to the possession of the property in dispute on the death of Mst. Thakani as he was the reversioner. He also claimed on the basis that the property in suit had been sold to him by the sale deed of January, 1926. Previous to this, Mst. Mantorni had instituted a suit against the plaintiff and others.

In that suit, she claimed to be in joint possession with all the defendants and wanted separation of her share basing her title on the deed of gift by Mst. Thakani on the 14th of September, 1938. Krishna Ballabh Rai denied that the plaintiff had any title, because by virtue of the sale deed dated 21st January, 1926 executed by Pulkit Rai, he had no right to make a Kebala in favour of his daughter, In that case, it was held that the Kebala in favour of Krishna Ballabh Rai was never given effect to. In that suit, Krishna Ballabh Rai did not set up his title as a reversioner.

The result was that Mst. Mantorni was held entitled to the right claimed by her namely of separate possession of the property conveyed to her by Mst. Thakani. On the basis of that judgment, it was urged in the suit filed by Krishna Ballabh Rai that it was barred by the principle of res judicata. Their Lordships of the Patna High Court after referring to various cases held that the suit was barred.

16. Learned counsel for the respondents urged that the plaintiff Chhaganlal was only claiming in the present suit his share in the property left by Pannalal treating Jawaharlal also as his co-sharer while in the previous suit, he treated him as a trespasser and claimed the whole of the property left by Pannalal. In this connection, he has referred to the case of In Re Ayya Nadar, AIR 1953 Mad 933 in which it was held that if a suit for possession of a property on the allegation that it was purchased by the plaintiff from his mother was dismissed, it cannot be said that the plaintiff cannot sue afterwards for partition of the property alleging that it was joint family property.

That case can be distinguished on facts. It was held that that was such inconsistency in the nature of the two claims as to be destructive of each other. The facts of that case were that the plaintiff had purchased from his mother some land and brought a suit for taking possession of his property, His brother defended the suit on the ground that in reality the property had been purchased with the funds of the joint family in the name of the mother. The suit was dismissed. Thereupon, the plaintiff filed a suit for partition claiming the joint family property.

It was observed that had the plaintiff put forward both the claims, it would certainly have been incongruous and would have brought about their mutual destruction without any effort on the part of the defendant. As already pointed out in the present case before us, the evidence in support of one claim cannot be said to be such as to be destructive of the evidence in support of the other claim if Jawaharlal is treated as trespasser.

17. Learned counsel has also relied on the case of N. M. Khajamyan Rowther v. Appavu Pillai, AIR 1926 Mad 126, in which it has been held that a suit by the plaintiff for possession of his share after partition is not barred by the dismissal of his prior suit for recovery of specified plot of land on his exclusive title, The defence in that case was that the land in which the plaintiff claimed was undivided and if the suit was dismissed on that defence, the second suit for possession of his share by the plaintiff after partition is obviously not barred.

The case of Muhammad Rowther v. M. M. Abdul Rahman Rowther, AIR 1923 Mad 257, was referred to in the case and was distinguished, But so far as the facts of the case before us are concerned, they have a similarity with the facts in Muhammad Rowther's case, AIR 1923 Mad 257. In that case, the first suit was for possession against the defendant as owner on the strength of plaintiff's title by purchase. The second case was for possession on the strength of the plaintiff's title as owner by inheritance. It was held that in both the cases, the plaintiff should be held to be litigating under the same title and he should have combined the two claims in the first suit.

18. Learned counsel further argued that in this case, the plaintiff is claiming only one fifth share in the property, while he was claiming the whole in the previous suit. There is no substance in this point. It has been held in the case of Mohammed Esuf Rawther v. Sultan Abdul Kadar, AIR 1924 Mad 711, that where a person failed to assert in the alternative a claim to a share and his claim for the whole is dismissed, he or his heirs are precluded from claiming the share. The same view is taken in the case of Abdul Majid Khan v.

Abdul Alim Khan, 174 Ind Cas 777 (Nag).

It was held in that case that where in a previous suit, the plaintiff claimed certain property and the defendant set up exclusive claim to the possession of the property and the suit was dismissed, a subsequent suit by the plaintiff against the same defendants claiming the joint possession of the same property as his heir is barred by res judicata.

19. The above discussion is sufficient to show that if Jawaharlal is treated as a trespasser the plaintiff cannot avoid the bar of res judicata, even if the suit is treated as one in which the plaintiff was claiming as an heir of Pannalal. As already pointed out the suit is not for redemption of mortgage, and both the courts have acted wrongly in making provision for the payment of the mortgage money in the present suit.

20. Learned Counsel also relied on the decision of the Allahabad High Court in the case of Kamta Rai v. Nand Kishore, AIR 1952 All 287. In that case, a Hindu widow brought a suit against the mortgagee for possession of half share in the property alleging that the property was joint family property and the widow of the deceased joint brother was in possession in lieu of maintenance and that he had succeeded to it by survivorship on the death of his brother. That suit was dismissed, Subsequently, that person brought another suit against the mortgagee for accounts of the mortgage claiming title to the property as heir of the husband of the deceased widow treating him as a separated brother.

It was held that the suit was not barred. It is obvious that in the above case, the suit was for redemption. That ruling would have been applicable, had the plaintiff filed a suit for redemption. It is not for us to say what shall be the fate of the plaintiff, if he files a suit for redemption against Jawaharlal.

21. In our opinion, the present suit filed by the plaintiff is barred under Section 11, C.P.C. so far as it relates to the property left by Pannalal, So far as the property of Chokchand is concerned, the decree of the trial court is not challenged in this appeal.

22. The result is that the appeal is partly al lowed and the judgment and decree of the learned District Judge, Partapgarh dated the 15th September, 1954 are modified so far as it awards a share to the plaintiff in the property left by Pannalal That part of the decree which provides for the payment of mortgage money is also ordered to be deleted. The rest of the decree is maintained. Looking to the circumstances of the case, we order that the parties shall bear their own costs through out.