The cause of action in a suit is determined by the media of title upon which the plaintiff relies to support their claim.

R. N. MISRA, J.

( 1 ) THIS appeal is by the defendants 1 to 4 against the confirming decision of the learned Additional Subordinate Judge of Cuttack. The plaintiff sued for title, possession and recovery of damages.

( 2 ) THE defendants 6 and 7 were the landlords. The defendant No. 1 was their khamaroi. The disputed land belonged to the defendant No. 1. As the defendants 6 and 7 were in need of a homestead for their own Khamar the defendant No. 1 gave the disputed property to them for the said purpose about 30 years prior to the litigation. The father of the defendants 6 and 7 made certain, alterations to the standing structure and used the same as their Khamar. On 19-11-1959, the defendant No. 1 sold the property to the defendants 6 and 7 (Ext. 1) for a consideration of Rs. 1000/ -. Under an amicable division the disputed portion of the property fell to the share of the defendant No. 6 and he sold 6 decimals out of it with the standing structure to the plaintiffs on 9-5-1960 under a registered sale deed (Ext. 2 ). There is a mistake in the sale deed and It was rectified on 16-121961 (Ext. 5 ). The defendant No. 6 also sold away 26 decimals out of the disputed property to the defendants 8 to 13 on 9-5-1960. Since then the plaintiffs and the defendants 8 to 13 were in possession of their respective acquisitions without any partition by metes and bounds. On 9-10-1960, the plaintiffs were dispossessed by the defendant No. 10 in collusion with the defendants 1 to 5. The suit was, therefore instituted for the aforesaid reliefs.

( 3 ) THE defendants 1 to 5 filed one joint written statement and defendants 9 to 13 filed another joint written statement while the defendants 6 and 7 filed all separate written statement of their own. It was specifically pleaded in defence that there was a prior suit being T. S. No. 149 of 1960 by the plaintiffs for similar reliefs. Ext. B is the plaint of that suit. An amendment of the plaint was asked for on 5-1-1962. By order dated 24-1-1962 the amendment application was rejected. Thereafter the plaintiffs took no steps and on 26-2-1962 the suit was dismissed with costs and a decree was drawn up on 28-2-1962. On the basis of these allegations it was contended that the present suit was not maintainable on account of the provisions of Order 9, Rule 9. Civil P. C. Besides this contention in law many other factual contentions were raised to deny the plaintiff's title.

( 4 ) IN the trial court two issues were raised being Issue No. 3 -- "is the suit barred by principles of res judicata under Order 2, Rule 2 and Order 23, Rule 1 Civil P. C. ?" -- "is the suit maintainable in view of the order of dismissal passed in T. S. No. 149 of 1960 of this Court?" Both the learned Trial Judge as also the learned appellate Judge negatived the plea of non-maintain-ability of the present suit and found the sale deed dated 19-11-1959 (Ext. 1) to be valid. They accordingly have allowed the plaintiffs a preliminary decree for partition, but have refused to grant damages.

( 5 ) IN Second Appeal Mr. Mohapatra rightly confined his contention to the plea in law, namely, that the courts below have gone wrong in holding that the present suit was maintainable and was not barred under Order 9, Rule 9, Civil P. C. He contends that in the previous suit, the plaint whereof is Ext. B, and in the present suit the claim of the plaintiffs is based upon the sale deed (Ext. 1) and the common media of title is thus one and the same transaction. It may be true that the plaintiffs have made certain new allegations and have indicated, with reference to the point of time, a new cause of action, but to find out 'whether it is barred under Order 9, Rule 9. Civil P. C. what is necessary to be considered is whether in substance it is the same cause of action.

( 6 ) THE term "same cause of 'action" occurs in Order 2. Rule 2 as also Order 9. Rule 9, Civil P. C. Order 9, Rule 9 provides:- (1) Where a suit is wholly or partly dismissed under Rule 8, th