Sadasiva Aiyar, J.:— The defendants are the appellants. The facts are a little complicated. It is necessary however to recite only the following to appreciate the questions of law which have to be decided in this second appeal.

2. The plaintiff's father who died in 1910 executed a sale deed in favour of defendant 1 in 1896, conveying two houses and the plaint lands for Rs. 3,000. Defendant 1 got possession of the lands, according to defendant 1's case, in 1896 itself on the date of sale. The plaintiff first brought a suit in 1906 to set aside the sale deed executed by his father and to recover possession of the plaint lands on the following allegations:

(a) That the sale deed was executed colourably; (b) that it was executed without any consideration; (o) that it was never intended to be given effect to; (d) that the recitals of consideration therein are all false and fictitious; (e) that defendant 1 had no right or necessity to execute the sale deed; and (f) that the said document is not valid and binding on the plaintiff.

3. That suit was dismissed with costs on the following findings of the lower appellate Court:

(a-1) that the sale deed, Ex. A, was not a colourable transaction; (a-2) that Rs. 1,995-8-0 of the Rs. 3,000, purchase-money, did pass as consideration for the sale and that Rs. 1,995-8-0 went in discharge of debts binding on the plaintiff; and (a-3) that possession of the houses and lands at once passed to defendant 1.

4. Having failed in inducing the Court to set aside the sale deed of 1896 in his previous suit of 1906 and having had those findings of fact, namely, (1) that the sale-deed of 1896 was a real transaction, (2) that nearly Rs. 2,000 of the purchase-money had been paid by defendant 1 to the plaintiff's father for discharging antecedent debts, and (3) that possession had at once passed to defendant 1 of the properties sold, given against him in the former suit, the plaintiff has brought the present suit in October 1911 praying in effect for the very same reliefs as in the former suit, namely, the setting aside of the sale-deed of 1896 and the recovery of the plaint lands from the defendants, and he relies in this suit on practically the very same allegations as in the former suit. There are, of course, some additions made in this suit both to the allegations made in the body of the plaint and to the reliefs prayed for at the end of the plaint. As regards the additional allegations in the plaint, the only material additional allegation is that even if there were antecedent debts to be paid out of the purchase money as recited in the document, Ex. A, such antecedent debts are not binding on the plaintiff's family: see para. 5 of the plaint in this case. As regard the additions made in the prayer portion, these additions consist of prayers for alternative reliefs, namely, that if the entire properties could not be delivered to the possession of the plaintiff, “such of the properties or portions thereof” as the Court thinks fit “may be delivered, either unconditionally or subject to conditions, to the plaintiff.” In the plaint in the present suit, the plaintiff has carefully avoided controverting the final finding of the Court in the former suit, that the possession of the plaint lands passed in 1896 itself to defendant 1. Not only did he not expressly controvert that finding, but he dates the cause of action for the present suit in 1896, though he gives that date, not on account of the act that date is the date of the taking of possession of the alienated properties by defendant 1, but because it is the date of the sale deed. He further admits in para. 11 of the plaint in this case, as I understand that paragraph, that the present suit is prima facie barred by limitation. He however claims the benefit of Section 14 of the Limitation Act, basing that claim upon the fact that the suit of 1906 was finally disposed of only in 1911. He further wants to get out of the bar of limitation by contending that a new cause of action arose in his favour when his father died in 1910. He did not repeat in the plaint in this suit his allegation in the plaint in the former suit of 1906 that he was in possession till 1903. Tbs lower appellate Court's statement in para. 14 of its judgment, that according to the plaintiff the possession of the lands passed to the defendant only in March 1903, is not based on the pleadings in this case and it is in fact opposed to the inference to be drawn from the deliberate omission of the plaintiff to repeat in the plaint in this suit that he lost possession in 1903 and that he is relying upon Section 14 of the Limitation Act, to save himself from the bar of limitation.

5. The learned District Munsif dismissed the plaintiff's suit as barred by res judicata and as barred by limitation. The lower appellate Court first remanded the case to the District Munsif for findings on three issues, the first of which was:

“When did the defendants in Original Suit No. 432 of 1911 get possession of the nanja lands sued for?”

6. The learned Subordinate Judge gave no reasons for this order of remand except stating that “it appeared” to him “that for the right decision of the suit” those issues should be remitted for trial and findings. When the District Munsif submitted the finding that the defendants got possession of the nanja lands sued for in 1896 itself, the lower appellate Court did not accept that finding and it decided on the fresh evidence (which was allowed to be adduced in the District Munsif's Court in pursuance of the remand order) that the plaintiff lost possession only in 1903 and that the defendants' possession become adverse to the plaintiff only in 1903, holding further that the finding in the former suit that possession had passed in 1896 itself was not res judicata. I might further add that among the 11 grounds of appeal to the lower appellate Court by the plaintiff, there is not a single ground which says that the plaintiff lost possession only in 1903 and that therefore the suit is not barred by limitation. On the other hand, the 4th, 5th and 6th grounds in the appeal memorandum relied solely upon Section 14 of the Lim. Act, to save the bar of limitation. Not only this, the plaintiff did not let in evidence before the Munsif in the first instance on the question of the date when he lost possession and there is no allegation in the grounds of appeal to the lower appellate Court that he was precluded from letting in any evidence, and yet the lower appellate Court in its remand order permitted him to let in fresh evidence on the question of when he lost possession.

7. It is unnecessary to deal further with the point whether the lower appellate Court was justified in remanding the case to the Court of the District Munsif to give a finding on the question of possession and whether it was justified in upsetting that finding on the new evidence taken on remand. I am clearly of opinion that a finding on this question of possession in the former suit, No. 111 of 1906, is res judicata in this case against the plaintiff. Issue 5 in the former suit was, whether the sale to the present defendant 1 by the father of the present plaintiff in 1896 was only a colourable transaction. One of the main questions to be considered in arriving at a finding whether a sale deed is a colourable transaction, or a real transaction, is whether or not possession of the property sold passed to the vendee from the vendor. The District Munsif who decided the former case found in para. 21 of his judgment that possession was not parted with by the plaintiff's father to defendant 1 (vendee), though the patta and kist receipts began to stand in the vendee's name from the date of the sale deed, 1896: see Ex. 13. But, on appeal, the lower appellate Court went into the same question elaborately in paras. 17 to 22 of its judgment (Ex. f.) and found that the vendee got possession at once in 1596. Now, it seems to me under Section 11 of the CPC, that the question when defendant 1 got into possession under his sale deed of 1896 was directly and substantially in issue in the former suit between the same parties litigating under the same title in a Court competent to try this subsequent suit and was heard and finally decided in the defendant's favour. The learned Subordinate Judge in this case tried to get over the bar of res judicata by the following argument. Though the question was tried and decided in the former suit, that question was only of relevant fact and not a fact in issue. That suit would have been dismissed even if the Court found that possession passed to the vendee only in 1903, as that Court could have found the sale to be a real transaction even if the possession passed only in 1903. The question of possession was not therefore essential to the decision of the former suit.

8. I am clear that the above reasoning is fallacious. The question of res judicata has to be decided, not on a consideration whether the decision of the controverted point was essential or necessary to the decision of the former suit, but upon the question whether it was directly and substantially in issue in the former suit. The word “substantial” has not such a stringent signification as the word “essential” or the word “necessary.” In the Full Bench case reported in Bommidi Bayyan Naidu v. Bommidi Suryanarayana(1), Sundara Aiyar, J., has considered very elaborately the question of res judicata, and the test he lays down, is whether the issue was one on which the judgment of the previous suit was based, quite apart from the question whether the decision itself in the former suit would be affected by the matter being reopened in the later suit or whether the decision on the former suit could not logically have been based on even a different finding. There lean be no doubt on a perusal of the judgment of the lower appellate Court in the former case that the decision therein was clearly based on the finding on the question, when the possession of the alienated properties passed to the vendee. Of course, the decision on each one of several relevant facts on which a finding is based may not be res judicata unless that relevant fact can itself be considered a substantial question in issue. As to what is a substantial question and what is not a substantial question no invariable rule can be laid down except that if the parties by their conduct of the litigation clearly treated it as a substantial question and the Court also further treated it as a substantial question, it would be almost conclusive to show that question was one substantially in issue.

9. Holding as I do that the decision on the question of possession in the former suit is res judicata, it is clear that under Article 126, Lim. Act, the present suit, which is brought in effect to set aside the alienation made by the plaintiff's father in favour of defendant 1 is barred by limitation. The lower appellate Court, after remanding the case for the decision of the issue as to when possession passed, has considered (when the case was returned to it) the quite irrelevant question, namely, when the defendant 1's possession became adverse to the plaintiff, and then applied Article 144, Lim. Act. Article 126. Lim. Act, clearly applies to the facts and that article says that a Hindu governed by the law of Mitakshara has got twelve years to set aside his father's alienation of family property, the time from which the period begins to run being the date when the alienee takes possession of the property. This suit therefore brought in 1911 is clearly barred by limitation.

10. I might further state that, in my opinion, not only is the question of possession res judicata by decision in the former suit, but even the whole suit itself in the present case, is barred by limitation by the decision in the former suit. The mere addition of a further useles allegation in the plaint in this suit that the plaintiff's father's antecedent debts, if true, are not binding, cannot make the present plaint to be based on a different cause of action from the cause of action set out in the former suit. It may be remarked that there is not even an allegation in the plaint that the antecedent debts are illegal or immoral Nor can the addition of some alternative reliefs, which might and ought to have been claimed in the former suit, change the character of the suit. On this question, I shall only repeat the quotation which I made in the judgment of the above Full Bench case:

“The same set of facts, which the mind at once grasps as jurally integral, ought not to be made the basis of repeated proceedings; the complaining party is allowed to frame his complaint in various ways and the rule obtains that all the circumstances, which exist when the former of two actions is brought and can be brought forward in support of it, shall be brought forward then, not reserved for a second action arising out of the same events. The cause of action is regarded as identical, though the form of action differs on the second occasion, and the test applied is whether the evidence to support both actions is substantially the same……. Under a freer system of procedure, such as that of the equity Courts in England or of the civil Courts in India, second suits are to be admitted more sparingly than when the plaintiff has to proceed by set forms of action. As he can bring forward his whole case, unfettered by artificial restraints, and seek all remedies that the Court can justly award upon the facts proved, there is no reason why he should be permitted to harass his opponent and occupy the time of the Courts by repeated investigations of a set of facts which ought all to have been submitted for adjudication at once. His cause of action, into whatever Protean forms it may be moulded by the ingenuity of pleaders, is to be regarded as the same, if it rests on facts which are integrally connected with those upon which a right and infringement of the right have already been once asserted as a ground for the Court's interference.”

11. In the result I would reverse the decision of the lower appellate Court and restore that of the District Munsif, dismissing the suit with costs throughout in all Courts. The memorandum of objections cannot be maintained as it relates to a matter which ought to have been contested by an appeal from the District Munsif's decision to the Subordinate Judge and was not so appealed against.

Napier, J.:— I concur.

S.N/R.K

12. Appeal allowed.