1. The plaintiff, who was the adopted son of one Sharadabai, brought suit No. 337 of 1919 against Sharadabai for possession of the property of his ad adoptive father, and for setting aside alternations made by Sharadabai to ??? defendants, 23 in number. In that property were included S. No. 51, pot No. ??? which is the subject of the present suit and S. Nos. 88 and 89, all of which ??? in the possession of the present defendant. So far as regards S. Nos. 88 and 89 the plaintiff's case was that they has been improperly alienated by Sharadabai to the defendant. As regards the present S. No. 51, pot No. 2, possession was ??? claimed from the defendant, but from Sharadabai; but as a matter of fact ??? particular property had been alienated ??? the plaintiff and Sharadabai by a dead ??? gift in favour of the defendant. That deed of gift, which was not attested, ??? void in law. The suit between the plaintiff and Sharadabai was compromised and there was a decree in terms of the compromise between the plaintiff and defendants 1 and 24, viz., Sharadabai and some other person who is not a party ??? this suit, and in accordance with the decree the plaintiff was to recover possession of the property in this suit and also other property from defendant 1. ??? was a separate decree against the other defendants for other property. In execution of the decree against Sharadabai ??? plaintiff endeavoured to take possession of S. No. 51, pot No. 2, but was obstructer by the present defendant. The plaintiff made an application to the Court under O. 21, R. 97, which was dismissed under O. 21, R. 99, and the plaintiff then brought the present suit under O. 21, R. 103, for possession of the survey number against the present defendant. It was contended at the trial that the suit was barred under O. 2, R. 2 of the CPC, read with Section 11, Expln. 4, and also under section 47 of the cpc, inasmuch as the plaintiff had omitted to include the whole of his claim against the defendant in the previous suit and as the defendant was a judgment-debtor in the previous suit, any question between him and the plaintiff should be disposed of under section 47 of the cpc, and not by a separate suit. Those objections were overruled by the Judge of the first Court, and the plaintiff's claim was decreed, but on appeal the decree was reversed by the Assistant Judge of Dharwar who held that the suit was barred by the provisions of O. 2, R. 1 of the CPC, Expln. 4, Section 11 of the same Code, and Section 47 of the CPC. The plaintiff makes the present appeal.
2. The position has been set out at p. 2 of the judgment of the lower appellate Court in these words:
“The position now stands thus: The plaintiff when he instituted Suit No. 377 of 1919 in the Courts of the First Glass Subordinate Judge, Dhanvar, as against his adoptive mother Sharadibai as regards the whole of the family property including Survey No. 51(2) now in dispute, was fully conscious that it was in the possession of the present defendant. He however ignores the deal of gift of 1918, because it was legally inoperative for want of attestation and behind defendant 2's back entered into a compromise with Sharadabai for numerous lands including the suit survey number. O. 2, R. 1, enjoins that “every suit shall, as far as practicable, be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.” Survey No. 51(2) was one of the lands in dispute in the previous litigations and if the plaintiff had so framed his suit as to pray for relief anent the said land as against the present defendant, the present suit would have been redundant”
3. He therefore holds that the present suit is barred by the provisions of O. 2, R. 1. It is further barred by Expln. 4, S. 11, because:
“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.”
4. As S. No. 51(2) was one of the lands in dispute in Suit No. 377 of 1919 and is both Sharadabai as well as the present defendant were parties to that suit, the plaintiff, in the Judge's opinion, ought to have alleged the invalidity of the deed of gift, Ex. 18, and ought to have recovered possession of the said land, and the Judge, relying on Guddappa v. Tirkappa (1), held that the suit was barred on the principle of res judicata: Further, he held that as the plaintiff had got a decree against Sharadabai regarding this land in the former suit and the present defendant was a defendant in the former suit, the case was covered by section 47 of the cpc, and he relies on the case of Chunilal v. Kashibhai (2). It has been argued by the learned advocate for the appellant that O. 2, R. 1, has no application. In the former litigation S. No. 51(2) was not in dispute so far as the respondent is concerned. He claimed S. Nos. 83 and 89 under an alienation from Sharadabai. The plaintiff claimed S. No. 51(2) from Sharadabai. The cause of action as against the respondent was adverse possession. In the present case the cause of action is obstruction by respondent in the execution of the plaintiff's decree against Sharadabai or rather the order of the Court refusing the plaintiff's application to set this obstruction aside. And he refers to Narsigounda v. Chawagounda (3). That case lays down that Article 91, Limitation Act, does not apply to a suit for possession where the plaintiff alleges and proves that a sale-deed is void because it was executed by him whilst a minor, but does not claim expressly to have it cancelled or set aside. Then as regards S. 11, Expl. 4, it is argued that the plaintiff had no cause of action against the respondent in 1919 except adverse possession. In order that a suit should be barred by S. 11, the parties in the former suit must be the same, and the subject-matter the same, and he urges that the case in Guddappa v. Tirkappa, was on different facts. The former suit was only to have the alienations made by Sharadabai, that is, of S. Nos. 88 and 89 set aside and not the one made by himself of S. No. 51 and that under the ruling in Narsagounda v. Chaivagounda referred to above, he was entitled to ignore the deed of gift. Now, so far as concerns the application of O. 2, R. 2, and O. 2, R. 1, which must be read together, and Section 11. Expln 4 of the CPC, it is necessary to have a clear statement of the facts before applying the law. As found by the lower appellate Court the facts are that on the date of his adoption by Sharadabai the plaintiff and Sharadabai passed a deed of gift in favour of the defendant with regard to the survey number now in suit, viz., S. No. 51, pot No. 2. It has been found by the lower appellate Court that deed of gift was not attested, that the plaintiff deliberately refrained from having it attested in order that it might be void, and it is conceded on both sides that the deed of gift is void. Now when plaintiff sued to recover possession of all the property of his adoptive father including all the property which had been alienated by Sharadabai, the cause of action was his adoption by Sharadabai, and as adopted son he was entitled to set aside all alienations made by the adoptive mother. The plaintiff, as the lower appellate Court has found, was fully aware of the fact that the possession of S. No. 51(2) was not with Sharadabai, but with the defendant. That survey number was one of the survey numbers of which the plaintiff claimed possession, and the present defendant was a defendant in that suit, and he was one of the persons from whom the plaintiff sought to recover possession of his adoptive father's property, such property as the defendant was in possession of, on the ground that the alienations to him were void.
5. Now it appears that for reasons best known to himself the plaintiff concealed the fact that S. No. 51(2) was in the possession of the present defendant and sought possession of it from Sharadabai although Sharadabai was not in possession. The subject in dispute therefore between the plaintiff and the defendants who were twenty-four in number in that case, was, the property of his adoptive father, and I do not see how it could be contended that where an essential fact was suppressed, i.e, that S. No. 51(2) was in the possession of the present defendant, who was defendant 2, in that suit, on a title which was not put forward in that suit, it could possibly be held that suit was framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them, because it is obvious that in order to recover possession of this survey number from the present defendant a further suit was necessary, and this is the suit which has, as a matter of fact, been brought. There can therefore, I think, be no reasonable doubt that this present suit is repugnant to the provisions of O. 2, R. 1. Secondly, O. 2, R. 2, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. The cause of action in that suit, as has already been pointed out, was his adoption by Sharadabai which entitled him to set aside any alienation and to recover the whole of the property belonging to his adoptive father. The defendant was actually a party to that suit, and in respect of the cause of action, viz., the adoption, the present plaintiff was entitled to make a claim against him for restoration of S. No. 51(2) on the ground that the deed of gift was void in view of the fact that to the plaintiff's knowledge the deed of gift which was passed to him by Sharadabai in respect of that property was void and inoperative in law, and therefore there was no necessity to set it aside. S. 11, Expl. 4 says:
“Any matter which might and ought to have been made ground of defence or atack in such, former suit shall be deemed to have been a matter directly and substantially in issue in such suit.”
6. The possession by the present defendant of S. No. 51(2) might and ought to have been made a ground of attack in the former suit, and must be therefore regarded as being a matter directly and substantially in issue in that suit. It has been held in Masilamania Pillai v. Thiruvengadam Pillai (4) that the question of what ought to be made ground of attack under S. 13, Expl. 2, must be determined by the provisions of section 42 of the cpc. That is now O. 2, R. 1. As pointed out in that case, there is no hardship or inconvenience in requiring a plaintiff suing as heir to state all the facts on which he bases his heirship, even though it may result in the presentation of an alternative case while great inconvenience and hardship may be caused to the defendant by allowing the plaintiff to keep a ground in reserve. It is also held that it will not be practicable to join in one suit the different grounds only when the evidence in sup-port of one ground will he destructive of ??? other. Now to have alleged in the ??? suit that defendant 2, in that ???, viz., the present defendant, was in ??? of S. No. 51(2) under a void ??? of gift was not in any sense ??? of the plaintiff's claim to recover ??? other lands from other defendants ??? S. Nos. 88 and 89 from the present ??? on the ground that the alienations made to them by Sharadabai were ???. In Tarachand v. Bai Hansli (5) ??? was held that there is nothing in ??? 13 or its Expl. 2 of the CPC, to show ??? “any matter” means “matter arising ??? of the same cause of action.” In ??? v. Tirkappa , the plaintiffs ??? to recover certain land, alleging ??? on the death of the widow of the ??? owner they became entitled as eversioners. They had previously sued ??? the same land claiming as the ??? members of the joint family to which ??? former owner belonged. That suit had been dismissed. It was held that ??? present suit was barred by the provision of Section 13 of the CPC, 1882, the ??? as S. 11 of the present Code. It ??? held by Sir Lawrence Jenkins, C.J ??? p. 193, that the test to be applied as ??? a matter might or ought to have been made a matter to attack is this. ??? the matters so dissimilar that their ??? might lead to confusion? and it ??? held that no confusion would have ??? had the plaintiff in the former suit ??? in the alternative the title he ??? sets up. I have already pointed ??? that there was nothing to prevent ??? plaintiff in the former suit from ??? possession of S. No. 51(2) ??? defendant 2 in that suit, who is the ??? defendant, on the ground that ??? dead of gift was invalid in law. It ??? clear, therefore, that he might have ??? that a ground of attack. Nor was ??? matter so dissimilar that any ??? would have been caused by making ??? based on that cause of action, ??? therefore the matter not being ???, on the authority of the case in ??? v. Tirkappa, it must be ??? that the plaintiff out to have made ??? a ground of attack. In Muhammad ??? v. Abdul Behman Rowther (6), ??? a person instituted a suit against ??? in possession, for partition and recovery of his share in certain lands on the footing that he was a co-owner under a joint purchase made by himself and his two deceased brothers, but his claim was dismissed on the ground that the purchase was not a joint one but the sole purchase of one of the deceased brothers, and the former instituted a sub sequent suit to recover his share as one of the heirs of the deceased purchaser it was held that the suit was barred by the rule of res judicata, as the plaintiff ought to have joined his subsequent ground of title in the former suit under section 11, expl. 4 of the cpc and it is stated at p. 141, referring to the ruling of the Privy Council in Kamestvar Pershad v. Bajku-mari Buttan Koer (7) that if a person has two grounds on which he could base his claim or title to a thing, he must bring forward both in the first suit itself and he will be barred from bringing a second suit, unless indeed the union leads to confusion. I am of opinion that the rulings to which I have referred apply to the facts of the present case, and that the view of the lower Court that the suit is barred by O. 2, R. 1, (and also in my opinion, by O. 2, R. 2), and by section 11, expl. 4 of the cpc, is correct. This is sufficient for the disposal of the appeal, but as a further point of law is involved, I shall proceed to deal with the contention that section 47 of the cpc, does not apply to the present case. section 47 of the cpc, states:
“All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a suparate suit.”
7. Now in the former case the defendant in the present suit was defendant 2. A compromise decree was passed in that suit as between the present plaintiff and Sharadabai for the restoration of possession by her of the family property, and decrees were passed against all the defendants including defendant 2, the present defendant, for restoration of the property in their possession. But when the plaintiff attemped to take possession of S. No. 51(2), he was obstructed by the present defendant. Prima facie therefore it would appear the question of possession was one arising between the parties to the suit, and relating to the execution of the decree. It is however contended that the question of S. No. 51(2) had not arisen between the parties to the suit. As far as this survey number was concerned, the respondent was not a party to the suit. The contention would appear to be that he was only a party to the suit as regards S. Nos. 88 and 89 in regard to which there was an alienation in his favour by Sharadabai. In Chnuilal v. Kashibhai the plaintiff sued the defendants, father and son, but obtained a decree against the son only. He applied to the Court to attach the property of the son. The father also made an application stating that his own property should not be attached in execution. The Court held that the father had proved his case for the purpose of the application, and directed the plaintiff to file a regular suit for a declaration that the property was liable to be attached in execution of his decree. It was held on appeal that inasmuch as the father, although the suit had been dismissed against him, was still a party to the suit within the explanation to section 47 of the cpc, any question arising between him and the plaintiff with regard to the execution of the decree would have to be determined fey the Court executing the decree and not by a separate suit. That proceeds on the explanation to S. 47, which says:
“For the purposes of this section, a plaintiff whose suit his been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit.”
8. Therefore, that does not strictly apply to the facts of the present case. In view of the fact, however, that the plaintiff was the plaintiff in the former suit, and the present defendant was the defendant 2 in that suit, and the property now in dispute was one of the properties in dispute in that suit, although defendant 2 was not sued by the present plaintiff in respect of that property, and in view of the wide terms of section 47 of the cpc, I am of opinion that the present suit was barred under that section. This however is a minor point in view of my finding as to the suit being barred by O. 2, Rr. 1 and 2 and section 11, expl. 4 of the cpc, a point as to which I do not think there can be any doubt.
9. The result is that the decree of the lower appellate Court is confirmed, and appeal dismissed with costs.
R.M/R.K
10. Appeal dismissed.