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Judgment
On the authority of the decisions in Jibunti Nath Khan v. Shib Nath Chuckerbutty 10 C.L.R. 537, Bandey Ali v. Gokul Misir 13 Ind. Cas. 154 and Siliman Sahib v. Buntala Raman 20 Ind. Cas. 418 : (1913) M.W.N. 554 we have no hesitation in holding that the lower Courts were right in thinking that the present suit for a declaration of the plaintiff''s title occupied with a prayer for possession is not barred under Order If, Rule 2, by reason of the plaintiff''s previous suit, which was for a declaration of title and for an injunction against disturbance, having been dismissed through his failure to prove possession.
The case in Naganada Iyer v. Krishnamurli Aiyar 6 Ind. Cas. 233 is distinguishable on the ground that there the previous suit was dismissed for default which involved a finding of all the issues against the plaintiff. The question of res judicata upon which that case was decided does not arise for decision against the plaintiff in this case, as in both suits here the plaintiff succeeded on the issue as to the character of the sale-deeds.
The Second Appeal No. 2123 of 1915 fails and is dismissed with costs. A further question has been raised in Second Appeal No. 2122 of 1915, namely, whether Original Suit No. 249 of 1911 was properly instituted on a cause of action which was in the previous litigation combined with that which formed the basis of Original Suit No. 183 of 1911. This point was not raised at the trial in the Courts below and we cannot allow it to be argued at this stage. This second appeal is also dismissed with costs.