Scope of the provisions of sections 11 and 47.

Satyanarayana Rao, J.-The plaintiff obtained in the District Court the decree for rent claimed by him for the years 1932 to 1942 but that decree was reversed on appeal by the learned District Judge on the ground that his title to the suit property became extinguished by reason of a prior decree in O.S. No. 183 of 1931 on the file of the Badagara Additional District Munsif’s Court.

The suit out of which this second appeal arises was instituted for recovery of rent due under a registered marupat, dated 27th December, 1909, executed by the first defendant’s brother, one Krishnan Nambiar, since deceased to the plaintiff’s brother, deceased Govinda Variar. The second defendant in the suit is alleged to be the tenant under the first defendant and defendants 3 to 13 and 15 were subsequently impleaded as parties interested in the property under the will of Krishnan Nambiar, the executant of the marupat. The 14th defendant is a member of the tarwad of the plaintiff and he was impleaded to protect the interests of the members of the tarwad. The first defendant disclaimed interest in the property by his written statement and the second defendant and the other defendants were the main contesting defendants. The principal defence to the action Was that the suit was barred by reason of the decree in O.S. No. 183 of 1931 on the file of the Badagara Additional District Munsif’s Court and that the plaintiff had no title to the property. The title claimed by the plaintiff to the suit property is based on the compromise decree in O.S. No. 419 of 1892 on the file of the District Munsif’s Court, Badagara, in pursuance of which a kanam document, Exhibit P-3 was executed in respect of three items of property of which the suit property is one. This kanam deed states that the property was given as putravakasam property to be enjoyed by the children of Kunhunni Variar, and the plaintiff is the only surviving son of the said Kunhunni Variar entitled to the entire rights in the property as the sole surviving member of the putravakasam tavazhi. The plaintiff sues now to recover the rent due under the marupat. There is no dispute now that if otherwise the title of the plaintiff was not extinguished he would be entitled to recover the rent claimed by him in the suit.

In 1931 the plaintiff who was also the then Karnavan of his tarwad institutes suit, O.S. No. 183 of 1931 for recovery of possession of the property on the basis that the title to the property vested in the tarwad. He obtained a decree for possession on that basis and a certificate copy of the decree is marked as Exhibit P-5. That decree was not executed and was allowed to be barred. The plaintiff now alleges that he did not know his rights at the time he instituted that suit as he was then under the impression that the property belonged to the tarwad while, in fact, it belonged to the putravakasam tavazhi of which he is now the sole surviving member. The learned District Munsif who tried the present suit overruled the plea of the defendants that the present suit was barred by the decision in O.S. No. 183 of 1931. The earlier suit was brought by the plaintiff as a karnavan of his tarwad while the present suit is based on a different title, viz., the title of the putravakasam tavazhi. The fourteenth defendant who was subsequently impleaded as a party to the suit is the seniormost anandravan of the tarwad. The view of the learned District Munsiff is that the parties were not litigating in the previous suit under the same title as is now claimed in the present suit and therefore there was no bar of res judicata for the present suit under section 11, Civil Procedure Code. The learned District Judge assumed that at the time the earlier suit was instituted by the plaintiff as karnavan he was the only member of the tarwad then alive and that therefore he should have validity included the alternative title based on the putravakasam tavazhi right in the earlier suit and as he failed and neglected