MELANCHERI PARKUM PALLIKKARA KUNIYATI ALIAS KUNIYATI GOVINDAVARIYAR ALIAS GOVINDA MENOKKI Vs. KIZHAKKE VEETTIL APPU ALIAS GOVINDA KURUP

JUDGEMENT

(1.) The question in the former suit was whether the plaintiff was entitled to redeem a mortgage, that is, the matter in issue was whether the rights of the mortgagor had passed to the plaintiff The same matter is in issue in the present suit. It is, however, argued that in the former suit the plaintiff set up a title as Karnavan of the Mundoli Madham Tarwad, but in the present suit the plaintiffs set up a title as successors of that Tarwad, which has become extinct, No doubt the averments of the facts which conferred title upon the plaintiff, and the evidence which would be given by him, differed in the two oases, but the relief claimed is the same.

(2.) We think that a plaintiff is not entitled to set up a false case to the relief which he claims, and, when he has failed, to plead a fresh case; if he be in doubt as to which case is true, he should set out the two oases in the alternative; each case is one which ought to be made a ground of attack, so as to afford ground for a final decision upon the subject in dispute. (Vide Order II, Rule 1).

(3.) We think that the case falls within the decisions in Masilamania Pillai v. Thiruvengadam Filial 31 M. 385 and Gariya Rangaswamy Patrudu v. Majji Appalaswamy 34 Ind. Cas. 456 : (1916) 1M.W.S. 286 and the observations at page 775 in Ramaswami Ayyar v. Vythinatha Ayyar 26 M. 760 : 13 M.L.J. 448 The actual decision in the last case does not apply The joinder of the two titles in the former suit would not have caused any embarrassment in the trial. We, therefore, agree with the lower Court that the present suit is barred by res judicata and dismiss the second appeal with costs.