An unsuccessful plaintiff, whose suit had abated, can raise the same pleas in defense in subsequent litigation.

M.R.SHARMA, J.

1. One Surta was the original owner of the land which was being cultivated by Gajpat Singh as a tenant up to 1938. From 1950 onwards the revenue entries show that he was cultivating this land on payment of no rent and regarded himself as owner. On 11th Oct. 1966. Surta made a gift of this land and some other property in favour of Sudhan, Gajpat Singh filed a suit for declaration that he was the owner of this property either by purchase or by adverse possession and so Surta could not have made a valid gift. This suit was dismissed as having abated on Feb. 27, 1969, and this dismissal of the suit was affirmed in appeal.

2. On June 5. 1970, the present suit for possession of land was instituted by Sudhan. It was resisted by Gajpat Singh inter alia, on the ground that he had become the owner of the property by adverse possession.

On the pleas raised by the parties, the learned trial Court framed the following issues : - 1. Whether the plaintiff is owner of suit land?

2. Whether the defendant has become owner of suit land by purchase from Surta and by being in adverse possession of the suit land above twelve years?

3. Whether the defendant is estopped from raising the above plea covered by issues Nos. (1) and (2) for the reasons detailed in para No. 7 of the plaint?

4. Whether the plea covered by issues Nos. (1) and (2) is barred by principle of res judicata?

5. Whether the suit is within time?

6. Relief.

On issue No. (1), it was found that Sudhan, respondent, was the owner of land. On issue No. (2), it was held that the appellant had not become owner of the land by purchase from Surta but his possession, being adverse, had ripened into title. Issues Nos. (3) and (4) were discussed together and it was held that because of the abatement of earlier suit the appellant was debarred from resisting the claim of the respondent on the plea of adverse possession. The learned lower appellate Court affirmed the decision of the learned trial Judge on these issues and dismissed the appeal.

3. The second appeal filed by the appellant came up before me on Aug. 24, 1973. It was pointed out that there was a sharp conflict of judicial authorities on his point whereas the Lahore and Madras High Courts in Raju V/s. Ram Chand, AIR 1933 Lah 752, and Kamatchi Ammal V/s. Athigamudaya Pillai, AIR 1969 Mad 426, took the view that abatement of a suit tantamounts to a judgment in favour of the successful party and the same matter could not be re-agitated in subsequent proceedings, the Allahabad High Court in Bejai Ragho Niwasji V/s. Tej Narain Lal, AIR 1943 All 99, took the view that a party whose suit had abated could defend its possession in a subsequent suit filed against it. I was inclined to follow the Division Bench decision of the Lahore High Court in Raju s case (supra), but it was pointed out that provisions of O.IX, R.9, Civil P.C., were somewhat analogous to the provisions of O.XXII, R.9, Civil P.C., and in Shivashankar Prasad Sah V/s. Baikunth Nath Singh, AIR 1969 SC 971, it had been held that the dismissal, for default of the judgment-debtor, of an application filed by him under Sec.47, Civil P.C., resisting the execution of the decree, was not a final decision of the Court after hearing the parties and the same did not operate as res judicata and the judgment-debtor could raise the same objection in a subsequent application filed by him. From this I inferred that the authority of Raju s case (supra) had been impliedly shaken. At my request, the learned Chief Justice ordered that the controversy in judicial opinion should be resolved by a Full Bench and this is how this case has come up before us.

4. Order XXII, R.9(1), Civil P.C. reads as under:-

"9. Effect of abatement or dismissal- (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action."

It is significant to note that the statute bars a fresh suit on the same cause of action and places no express impediments i