The cause of action in the earlier suit must be exactly the same as the cause of action on which the second suit is based for the principle of res judicata to apply.

ORDER :- The order challenged by this Civil Revision Application is the order of November 20, 1974 passed by the Civil Judge, Senior Division, Panaji, whereby he dismissed two preliminary objections raised by the defendants in the suit.

2. The case of the plaintiff, present respondent No. 1 is that he is a lessee of the two of the seven plots, constituting the suit property which is known as "Palmar Oiteral do Predio Aivao" belonging to the 2nd defendant, the applicant herein and her husband. In June 1968 the first defendant entered the property and forcibly dispossessed the plaintiff on the allegation that the lease of the plaintiff had been legally terminated; the plaintiff filed a suit against both the defendants for declaration and permanent injunction; the suit was dismissed on the ground that the plaintiff had already been dispossessed of the suit property, by the defendants, in May 1968; and that the plaintiff would only be entitled to pray for restoration. The plaintiff therefore filed the present suit praying for restoration of possession of the suit land. However, in the written statement of the defendants (Exhs. 14 and 15) the defendants raised the preliminary objection that the suit was barred by the principle of res judicata as well as by limitation. The argument of the defendants is that in present suit the subject-matter is the same as the one directly and substantially in issue in the suit for injunction previously filed by the plaintiff. The question of limitation is not relevant to the present inquiry because it is not agitated before me.

3. The contention of Shri Shinkre, learned advocate for the defendant No. 2 who alone came before me in revision, is that the principle of constructive res judicata applies to this case. He relies on Raj Lakshmi Dasi v. Banamal Sen, AIR 1953 SC 33, and also on Joseph Klein v. Eliahu (Leo) Heiman, AIR 1949 PC 53. On perusal of these two rulings I find that they are not applicable to the present case.

4. The ruling which is on all fours with the present case is the ruling given by the Mysore High Court in Namdevaru v. H. V. Rama Rao, AIR 1959 Mys 173. There the previous suit was instituted by the plaintiff against the defendants in second suit and some other persons, for a declaration of title and for injunction. The High Court held that in order to succeed in the plaint as framed by the plaintiff, the plaintiff had to establish that he was in possession of the property; that the finding of the Subordinate Court that the defendant was in possession of the property was correct and in view of the decision of the Privy Council in Joseph Klein v. Eliahu (Leo) Heiman, AIR 1949 PC 53, the plaintiff would gain nothing by the declaration asked for unless he proceeded to take the necessary action for recovery of possession of the lands of which he claimed to be the purchaser. In that view of the matter the Court did not think it proper to go into the question of title and dismissed the suit. The plaintiff then filed the suit which culminated in the appeal which was disposed of by AIR 1959 Mys 173. The title claimed in that suit is the same which was claimed in the earlier suit. In the subsequent suit, however, there was a claim for possession which was not made in the earlier suit. At the hearing, the first ground urged before S. R. Das Gupta C. J., was that the second suit was not maintainable and was barred by the principle of res judicata. The advocate for the defendant contended that the decision in the earlier suit prevents the plaintiff from filing the second suit. Rejecting that contention the

earned Chief Justice held that the cause of action must be the same in both the cases. The cause of action in the earlier suit, as framed, was not exactly the same as the cause of action on which the second suit was based. In the earlier suit the case of the plaintiff before me was that he was in possession and the defendant wanted to interfere with that possession and therefore he as