P L D 1960 (W (PLP)

KAIKAUS, J.‑

This is a defendant's appeal in a suit for posses sion of land based on inheritance. The property in dispute, 448 kanals 13 marlas of land situate in Chak No. 341‑J. B. Tehsil Toba Tek Singh, District Lyallpur, was owned originally by one Mehtab. On his death the land was inherited by his son Muhammad Din. Muhammad Din died without any issue and wife and his land passed to his mother Mst. Pariah Bibi. Mst. Panah Bibi made a gift to this land in favour of her sister's husband Faqir Muhammad and his son Siraj‑ud‑Din. Mst. Panah Bibi died sometime in February 1951 and the suit out of which this first appeal arises was filed by Allah Rakha, Mst. Umar Bibi and Mst. Resham Bibi claiming to be the son and daughters of Fatta, the brother of Mehtab, against Faqir Muhammad, Siraj‑ud‑Din and mortgagees from them. Faqir Muhammad and Siraj‑ud‑Ding the contesting defendants in the suit, denied that the plaintiffs were the children of the brother of Mehtab. They, at the same time, pleaded a previous suit filed by Allah Rakha plaintiff to be a bar to the present suit. Other pleas were also taken to which it is not necessary to refer as they are no longer the subject of contest. The learned Civil Judge 1st Class who tried the case came to the conclusion that the plaintiffs were the children of Fatta who was the brother of Mehtab. The facts relating to the issue of res judicata were that Allah Rakha plaintiff had filed a suit on the 9th of February 1928 for the usual declaration that the gift by Mst. Panah Bibi in favour of defendants kilos. 1 and would not affect his reversionary rights. This suit was dismissed on the 16th of November 1928 on the finding that Allah Rakhr B had failed to prove his relationship with Muhammad Din, the Iasi. maleholder. The learned Civil Judge who tried the present suit found on the issue of res judicata also against the defendants and decreed the suit to the extent of 2/3rds of the property in dispute in favour of Allah Rakha. One‑third was excluded because under the Muslim Personal Law (Shariat) Application Act, 1948, the heirs of Mst. Pariah Bibi herself would be entitled to her share under Muslim Law which was one‑third. The plaintiffs could not be the heirs of Mst. Panah Bibi but only of Muhammad Din and, therefore, they could be entitled to 2/3rds of the property only. A decree for 2/3rds was granted to Allah Rakha only because in the presence of the son of Fatta his daughters were not entitled to succeed Allah Rakha was a residuary of Muhammad Din while his sisters were only distant kindred.

2. In this appeal learned counsel for the appellant does not challenge the finding on the issue of relationship in so far as it relates to Mst. Umar Bibi and Mst. Resham Bibi. The only point he has argued is that the previous judgment was res judicata and the suit by Allah Rakha has to be dismissed. We have little hesita tion in agreeing with learned counsel for the appellants on this point. The question as to whether Allah Rakha was the son oft Mehtab was directly and substantially in issue in the previous suit. It was on this ground alone that the previous suit had been dis missed. The decision of that question will, therefore, be binding in any subsequent suit between Allah Rakha and the present defendant. The learned Civil Judge appears to have been of the opinion that for the application of the rule of res judicata it is neces sary that the cause of action should be the same in both the suits. The learned Civil Judge in support of his decision on the issue of res judicata relied upon two judgments. The first is Tej Singh and others v. Chaudhari Hannu Prasad and others (A I R 1940 All. 433) wherein the reversioners had filed a suit for a declaration that a certain aliena tion was not binding on them and the suit was dismissed on the ground of limitation. When after the death of the widow the reversioners filed a suit for possession of the property in dispute, it was held that the previous suit was no bar. This case has no bearing on the question before us. All that had been in the first suit by the reversioners was that their suit was barred by time and that was the only matter which could become res judicata between the parties. The second case relied upon by the learned Judge was Ali Muhammad v. Karim Bakhsh and others (A I R 1933 Lah. 94). Therein a suit for a usual declaration under the Customary Law had been withdrawn under Order XXIII, rule 1, C. P. C. without any permission for bringing a suit for possession. Subse quently a suit for possession was instituted and it was held that the cause of action in the first suit was different from the cause of action in the second suit. It is to be borne in mind that in accordance with Order XXIII, rule 1, C. P. C. a suit withdrawn without permission debars the plaintiff from filing a second suit on the same cause of action and, therefore, if the cause of action be held to be different, the second suit would not be barred. But it is not necessary for the applicability of the rule of res judicata that the cause of action should be the same. Learned counsel for the defendants has produced no authority before us in support of the proposition that cause of action should be the same and we have no hesitation in rejecting the proposition. If it was a con dition of the application of the rule of res judicata that causes of action in both the suits should be the same, the rule would be limited to a very few cases and section 11 would be differently worded. It would have been quite easy to say in section 11 that causes of action in both suits must be the same if that was the intention. We cannot read into the words of a section, parti cularly a carefully drafted section, words which are not there and when we consider how will the framers of the Civil Procedure Code were acquainted with the expression "cause of action" the t inference that the omission to mention "cause of action" in section 11, C. P. C. was deliberate becomes inexorable. The phrase "cause of action" is used at numerous places in the Civil Proce dure Code. We will only refer to Order II, Order IX and Order XXIII where a second suit on the same cause of action is barred in a particular contingency. The proposition that res judi cata will not be confined to a particular cause of action will also receive support from the fact that res judicata is a rule much wider than section 11, C. P. C. It is not even necessary that there should have been a previous `suit'. Fateh Singh and others v. Jagannath Bakhsh Singh and another (AIR 1925 P C 55) appears to be an authority which would be decisive of the point before us. An earlier suit for a declaration as to the invalidity of an alienation by a widow had in that case been dismissed because of the failure of the plaintiff to prove that he was the next heir. The suit for possession filed by the same plaintiff after the death of the widow was held to be barred by res judicata on the ground that the question as to whether the plaintiff was the nearer heir had been decided in the earlier suit. Reference had been made to the order of the Judge in the first case where he had said that the death of the widow gave rise to a new cause of action, and apparently their Lordships did not repel the contention that the cause of action was new. Yet the matter was held to be res judicata. We may also refer to cases where status of parties once decided has been held to be res judicata. Ananta Balacharya v. Damodhar Makund (I L R 13 Bom. 25) and Krishna Behari Roy v. Bunwari Lal Roy and another (I L R 1 Cal. 144).

3. It was urged that the parties were not litigating under the same title in the two suits. The expression "litigating under the same title", as held in Rafiq‑un‑Nisa Bibi v. Abdul Shakur Khan and others (A I R 1929 All, 400), has reference to the capacity in which a person has been impleaded as a party to a suit. In one suit a person may have been impleaded in his personal capacity, in another as a trustee for a particular trust, and in the third suit as a mutawalli of a waqf. In spite of the fact that the person impleaded is the same, a decision given in one suit cannot be res judicata in the other suit, because the title under which the person was litigating was not the same. Although before us no judgment has been cited to support the proposition that "litigating under the same title" has reference to the particular right which is involved in a suit, we are aware of the fact that such a judgment may be cited. We have only to say that if this proposition were accepted, then, if the subject‑matter of the suit was different, a question decided in one suit would not be res judicata in the other. But there is no disagreement at all on the point that although the subject matter of the two suits be different, i.e., the properties involved are not the same, yet an issue decided in one suit would be res judicata in the other; and once we accept this proposition, it cannot consistently be urged that unless the same right is involved in the two suits the parties cannot be said to be litigating under the same title. At the same time, we have quoted above judg ments showing that status once determined is res judicata and it would not be at all difficult to quote authorities where a matter decided in a suit for declaration by a reversioner was held binding on a subsequent suit for possession. If it could be argued that when a reversioner files a suit for a declaration the right involved is different from the right to possession of the property on the death of the alienor and, therefore, in the two suits the title under which the parties are litigating are not the same, then all those judgments would be wrong. We do not think it is necessary to labour the point further in view of the Privy Council case which we have cited above.

4. As a result of the finding with respect to res judicata the suit of Allah Rakha has to be dismissed: We have considered theft question whether the other two plaintiffs may be entitled to a decree and we find that they are not so entitled. They are the first cousins of Muhammad Din and, therefore, only distant kindred. The mother of Muhammad Din was a sharer. In the presence of a sharer (except in the case of a husband or wife) distant kindred, cannot succeed. The whole property, therefore, has to go to the heirs of Mst. Pariah Bibi in case there be no collateral of Muhammad Din alive Allah Rakha has, on account of res judi cata, failed to prove that he is a collateral.

5. This appeal is accepted; but the parties will bear their own costs in both the Courts. K.M.A. Appeal, accepted.