JUDGMENT

Kanhaiya Lal, J. - The dispute in this appeal relates to a house which was mortgaged along with another house by Najabat Khan in favour of the defendant-appellant and his brother Madho Prasad in 1892. On the death of Madho Prasad his interest devolved on the defendant-appellant. The defendant-appellant brought a suit to enforce his mortgage and got a decree for sale against the present defendants Nos. 2 to 6 as the heirs of Najabat Khan, and in execution thereof he got the two houses aforesaid put up to sale.

2. A suit was then brought by the present plaintiffs-respondents other than Musammat Umda Bibi for a declaration that the house now in dispute was used as an Imambara and was waqf property; that the other house was his exclusive property by inheritance from Fateh Khan, and that neither of those houses was liable to sale in execution of the above decree. That suit was dismissed in regard to the house now in dispute on a finding that it was not proved to be waqf property, but decreed in regard to a share in the other house which was found to be the property of Fateh Khan, the common ancestor of the then plaintiffs and the mortgagor.

3. The present suit has been filed by the same plaintiffs and a lady named Musammat Umda Bibi for the protection of their interests in the house, which was previously described as waqf property, from the impending sale. The Courts below decreed the claim.

4. The first question for consideration is whether the omission of the plaintiffs other than Musammat Umda Bibi to set up the title, now sought to be enforced in the previous suit operates as a bar to the present claim. In the previous suit the then plaintiffs sought to protect the entire house in question on the ground that it was waqf property. They had asserted a right to offer prayers and to perform religious rites therein in their personal capacity as beneficiaries, but the object of the suit was not to protect their personal rights alone but to protect the entire house which they had described as waqf property. In the present suit they seek to enforce their personal interests in the said house as the heirs of Fateh Khan. They had not excluded the present house from their claim in the previous suit. In fact, they were claiming one of the houses mortgaged in their personal rights and seeking to protect the other house now in dispute on the ground that it was a waqf property. Having asserted that the latter was a waqf property, they could not have consistently claimed the same property as their personal property except possibly in an alternative form. They were, however, not under an obligation to adopt the latter course. Section 11 of the CPC requires that the decision in a previous suit would not be a bar to a decision in a subsequent suit unless the matter in issue was directly and substantally in issue in the previous suit between the same parties or between parties under whom they or any of them claim, litigating under the same title. The title set up in the previous suit was a title based on the property in dispute being treated as waqf property, in which the plaintiffs were interested as much as other persons entitled to offer prayers therein. In the present suit they are claiming a personal title in themselves as the heirs of Fateh Khan. Explanation and of that section provides that any matter which might and ought to have been made a ground of defence or attack in a former suit should be deemed to have been a matter directly and substantially in issue in such suit, but it is not obligatory on a party seeking to protect certain property as waqf property from an impending sale to as sert in the same suit any personal right thereto, to which he may afterwards find himself entitled, in case the property in question is not found to be waqf property. It is immaterial whether they could have joined in the previous suit an alternative claim for the protection of the personal share they are now seeking. There was no obligation to join t