Judgement Appeal from a decree of the High Court (Sept. 1, 1896) reversing a decree of the Subordinate Judge of Ootacamund (April 28, 1894) and dismissing the appellants suit. The suit was by the appellants to obtain specific performance from their vendors of their agreement to sell a coffee plantation in the Nilghiri Hills known as " The Tudor Valley Estate " ; and the question decided was whether the relief claimed might and ought to have been included in a former suit by and between the same parties brought upon the said agreement. The former suit was in the nature of a cross-action. The present respondents had sued under the same agreement to recover possession of the land sold. Besides defending it on the ground that their possession was in conformity with the agreement, the appellants brought a cross-action for restoration of possession under s. 9 of the Specific Belief Act, damages, an injunction against further interference, and any other suitable relief. In those suits the respondents obtained a decree for posses sion, the appellants a decree temporarily restraining their vendors from working the estate otherwise than as they the purchasers might appoint. In his judgment in the present suit the Subordinate Judge noticed an objection taken at the bar which had not been taken in the pleadings—that the said suit was, under the pro visions of s. 43 of the Civil Procedure Code, not maintainable because the plaintiffs had not asked for the present relief in their former suit O. S. No. 73 of 1891. He was of opinion that such objection was not well founded, as the said suit No. 73 had been filed as a cross-suit against the respondents suit No. 55 of 1891; that in the suit No. 55 the defendants had claimed to recover possession of the said estate, while in suit 73 the plaintiffs had sought an injunction restraining the defendants from interfering with the management of the said estate. He held, therefore, that the earlier suits did not preclude the plaintiffs from maintaining the present suit. The High Court considered that the " plaintiffs suit must fail because the cause of action on which their suit is based is identical with that on which they based their suit in 1891. He held, therefore, that the earlier suits did not preclude the plaintiffs from maintaining the present suit. The High Court considered that the " plaintiffs suit must fail because the cause of action on which their suit is based is identical with that on which they based their suit in 1891. The Subordinate Judge considers that this latter suit was simply a suit for disturbance of possession, but, looking at the plaint and comparing it with the plaint in the present suit, we find that the material allegations in the two plaints are alike. In both the plaintiffs assert the existence of the contract and possession taken by them under it. "In support of their claim in 1891 the plaintiffs had to adduce, and did adduce, the evidence relating to the contract which they have adduced in the present suit. " Thus another test of the identity of the causes of action is satisfied see cases cited in Brunsden v. Humphrey. (( 1884) 14 Q. B. D. 141.) Possibly, the plaintiffs might, in the former suit, have relied on the mere fact of their possession and might not then have been precluded from bringing the present suit, but they did not reserve the contract as a ground for another suit. They put it in issue in 1891, and founded upon it their claim for possession. In the present suit they seek to put it in issue again and found upon it a claim for specific performance. The relief which they ask for is different, but the fundamental facts giving them a cause of action are identical in the two cases.” Branson, for the appellants, contended that the First Court was right in holding that s. 43 of the Civil Procedure Code did not apply. The former suit was directed to the question of disturbance of possession, and was in the nature of a counter-claim to the respondents action of ejectment. The right to specific performance was not then in issue the dispute was as to the conflicting rights of the parties in the process of executing the agreement and until completion. He cited Parsotam Gir v. Varbada Gir. (( 1899) L. R. 26 Ind. Ap. 175.) Mayne, for the respondents, contended that the High Courts view of the litigation in 1891 was correct. He cited Parsotam Gir v. Varbada Gir. (( 1899) L. R. 26 Ind. Ap. 175.) Mayne, for the respondents, contended that the High Courts view of the litigation in 1891 was correct. However limited the nature of the dispute may then have been, specific performance was part of the cause of action. It was part of the relief to which they were entitled, and, as they chose to seek for part of their relief and omit the remainder, they must be held to have abandoned that which they then omitted, a fresh suit, therefore, being distinctly precluded by force of s. 43. Branson replied. The Judgment of their Lordships was delivered by LORD HOBHOUSE. The respondents An this appeal, who were defendants in the original suit, are a Hindu family of which Nanjappa is the manager. On March 23, 1891, they made a written agreement with the appellants, the plaintiffs below, to sell to them a coffee plantation of which the defendants were owners subject to mortgages. The agreement is somewhat peculiar. The price is fixed at Rs.77,500, of which Rs.7500 was paid down. The vendors guarantee a yield of thirty tons of coffee up to March, 1892, and as security for that the purchasers are to retain Rs. 10,000 in their hands. The purchasers are to pay Rs.25,000 to the mortgagee, leaving Rs.10,000 due to him. The balance, being Rs.35,000, is to be paid in cash between April 1 and July 31, 1891. Penalties are stipulated for non-performance of the agreement on either side. The following provision was made for the cultivation of the land — " As the said estate will be in our possession till the 31st of July, 1891, we are bound to take care (of the estate) by getting our superintendent to do, in all obedience, the works that you may prescribe to be done in the estate. We shall within the 1st April next give you a list of the things appertaining to the said estate, and also at once hand over the cattle to you within the said date." Down to the latter part of August, 1891, the terms of the agreement were observed, except that the time of completion was delayed. The purchasers cultivated the estate, and paid off the mortgages, and made some other payments on behalf of the vendors, which altogether amounted to Rs.44,420, and left Rs.33,080 due. The purchasers cultivated the estate, and paid off the mortgages, and made some other payments on behalf of the vendors, which altogether amounted to Rs.44,420, and left Rs.33,080 due. Then disputes arose, and each party accused the other of delay. Early in September each called on the other to complete within four or five days, threatening in case of failure to sue for the stipulated penalties. The vendors interrupted the work of the purchasers. The criminal proceedings common in such cases took place, and then the litigation in the civil court which led up to the present appeal. On September 21, 1891, the vendors instituted suit No. 55 of 1891 against the purchasers. They prayed for possession of the estate and for general relief. The purchasers defended themselves in that suit, and they also instituted a suit of their own, No. 73 of 1891, against the vendors. In Suit 55 the purchasers insisted on the agreement, and asked damages for disturbance of their works. In suit 73 they prayed first, for restoration of possession under the provisions of s. 9 of the Specific Belief Act, which are provisions confined to the recovery of possession upon a dispossession otherwise than in due course of law; secondly, for Rs.1000 damages for disturbance ; thirdly, for an injunction to protect their possession and management. In defence the vendors gave their version of the dispute, and insisted that the contract was broken by the purchasers failing to complete, had been treated by the vendors as at an end on September 10, and that no relief could be had under it. The two suits were heard on the same evidence, and on August 10, 1893, the Subordinate Judge delivered judgment in each separately.’ In suit 55 he held that by the terms of the agreement the parties intended that the vendors should have possession until the sale was completed, and that the purchasers had unlawfully dispossessed them, but he did not declare them entitled to any compensation. In suit 73 he decided to the same effect as regards possession; and he held that the purchasers were not entitled to any compensation, but that they were entitled to a temporary injunction restraining the vendors from interfering with the management. In suit 73 he decided to the same effect as regards possession; and he held that the purchasers were not entitled to any compensation, but that they were entitled to a temporary injunction restraining the vendors from interfering with the management. In his judgment in suit 55 he made the following observations— "In conclusion I would observe that I have confined myself in this case to the simple fact of possession and dispossession, as I intimated to counsel at the hearing that I would do. It seems to me that I have nothing but these facts to deal with in the case." In fact, there was no relief prayed and no issue framed in either suit on any point except possession or compensation. The purchasers did not ask for completion of the agreement, nor the vendors for its cancellation. The purchasers appealed to the District Judge in both suits. On October 11, 1893, he affirmed both decrees, only modifying the form of injunction. As modified it operates to " restrain the vendors from working the estate otherwise than as the vendees may appoint unless and until the agreement Exhibit A shall be rescinded or superseded by agreement of the parties, or be declared or become invalid by due course of law." On November 11, 1893, the purchasers filed their plaint in the present suit praying for specific performance of the agreement of March 23, 1891. On April 28, 1894, the Subordinate Judge gave them a decree. At the trial before him the vendors took an objection of law not raised by their pleas nor by the issues. It was founded on s. 43 of the Procedure Code, which provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; and that, if a plaintiff omit to sue in respect of any portion of his claim, he shall not afterwards sue in respect of the portion so omitted. The learned judge considered that the case did not fall within that section, because suit 73 of 1891 was a cross-action to suit 55, and neither party sought to deal with anything but possession or compensation. The vendors appealed to the High Court, repeating their grounds of defence in the First Court, and adding their defence under s. 43. The learned judge considered that the case did not fall within that section, because suit 73 of 1891 was a cross-action to suit 55, and neither party sought to deal with anything but possession or compensation. The vendors appealed to the High Court, repeating their grounds of defence in the First Court, and adding their defence under s. 43. On the hearing of the appeal they further contended that the point was decided against the purchasers by judgments in the suits of 1891. On October 21, 1895, the High Court decided the appeal. They held that the suit was not maintainable, first, because the matter was res judicata, and, secondly, because the case fell within s. 43. As to the first of these grounds there is great difficulty, looking at the frame of the suits of 1891 and at the judgments by which they were concluded; but their Lordships need not come to any decision upon it, because they are in entire agreement with the learned judges on the second ground. The agreement was the cause of action in suit 73 of 1891. There was no other. The purchasers, it is true, sued only for possession; but, independently of the agreement, they had no claim to the possession which was refused to them, nor to the management which was allowed to them. The vendors asserted that the agreement was no longer in force. The obvious course for the purchasers was to demand completion of it. For some reason or other they did not do so. They did make the agreement the basis of a claim for possession and damages. In this suit they make it a basis of a claim for transfer of the estate. But that is precisely what the Code says they shall not do. The High Court held that the purchasers were entitled to recover what they had paid in respect of the purchase-money, but were also bound to account for the profits which they had received during their management. The suit was remanded for accounts to be taken, when it was found that nothing was due to the purchasers. The High Court, therefore, on September 1, 1896, dismissed the suit with costs. Their Lordships will humbly advise His Majesty to dismiss this appeal. The appellants must pay the costs.