The central legal point established in the judgment is the application of the doctrine of res judicata under Section 11, Civil P.C. and the implications of giving up a defense in one suit and reserving it for another.

Bardswell, J.

1. The plaintiff brought a suit to recover certain properties. The suit was dismissed on the ground of res judicata by both the first Court and the appellate Court. It was held to be res judicata with reference to two previous decisions, one in O.S. No 505 of 1923 on the file of the District Munsifs Court, Srivaikantam, and the other in O.S. No. 270 of 1925 on the file of the same Court. With regard to O.S. No. 505 of 1923 there has been a great deal of misapprehension and a great deal of unnecessary discussion owing to the wrong way in which that suit was regarded and also owing to a mistranslation of the plaint in that earlier suit as it appears in the printed papers. In the plaint in this suit it was stated that the earlier suit was one for enforcing an award and this is how it has been treated in both the two lower Courts. It has even been referred to in the judgment in that suit itself as a suit to enforce an award. It has therefore been agreed that as the suit was one to recover possession, the right of possession should have been based not only upon the award but upon the two yadasbs that preceded it, and upon which the present claim is based. It is however ojear from the prayer in the plaint in O.S. No. 505 of 1923 that what was prayed for was that the award should be filed under para. 20, Schedule 2, Civil P. C. There is no doubt but that a suit to enforce an award is quite a different thing from sen application to file an award, which application has to be treated as a suit; and even though the District Munsif in his judgment in O.S. No. 505 of 1923 has referred to the suit as being one to enforce an award, he refers to it in the same sentence as being brought under paras. 20 and 21, Schedule 2, and under these paragraphs the suit can only be one for filing an award. It has been pointed out that the plaint in the earlier suit is referred to as brought under Order 7, Rules 1 to 6, Civil P.C., but nothing can be drawn from that to show that it was not a suit to file an award, which specifically it was, as under para. 20 an application to file an award has to be numbered and registered as a suit and naturally the application in such a case would take the form of a plaint. As then, that earlier suit was only a suit for filing an award, no other relief could be asked for at that time in the application. Therefore this ground of res judicata is the result of misapprehension and there is no res judicata as far as suit O.S. No. 505 of 1923 is concerned.

2. With regard to the other suit O.S. No. 270 of 1925, the position is different. That was a suit in which the present defendants 1 to 3, who alone matter, as defendant 4 is only a tenant of the plaintiff, brought a suit against the present plaintiff for an injunction to prevent his interfering with their possession and enjoyment of the suit properties. Defendant 1 raised the plea that by a family arrangement these properties bad fallen to him and were in his possession, and two issues were framed as to this, the burden of which was upon the plaintiff as the then defendant. However no evidence was brought in regard to these issues and in fact the defendant adduced no evidence at all. On the other hand he gave up in that suit his fight with regard to possession. He filed a statement to the effect that he undertook not to disturb the possession of the then plaintiffs in the property till the disposal of the present suit and that he specifically referred all the isssues in the case to be determined in that suit, O.S. No. 285 of 1925, on the file of the Palamcottah District Munsifs Court, and prayed that justice may be done without any prejudice to defendant ls right in that suit. It has been held, and it is now contended for the respondents, that he had no legal right, so to give up his defence in that suit and that therefore is is a matter of res judicata with reference to Section 11, Civil P.C. and Bxpl. & of that section. It has been held in Bayyan Naidu v