JUDGMENT : STANLEY, J. 1. Who, after stating the facts as given above, proceeded as follows: It appears to us that the learned Judge in arriving at the conclusion labored under a misapprehension as to the true facts in the former suit. The plaintiffs' cause of action in that suit was the ouster of them by the defendants from possession of a specific portion of the house in question, which the plaintiffs believed had been allotted to them on partition. The property in dispute in the present suit is the entire house with its appurtenances, and not merely a specific portion of it, and the claim of the plaintiffs is based not upon a wrongful ouster by the defendants, but upon the right which every joint owner has to come into Court and have joint property partitioned. Therefore, as it appears to us, the cause of action was not the same and the property, the subject matter of the two suits, was not identical; nor was the title upon which the two suits were brought, the same. In the former case the title was based, wrongly no doubt, upon a partition alleged to have been carried out by the Revenue authorities. In the latter case the title of the plaintiffs depends upon their rights as members of a joint family to have the property partitioned. 2. The learned Subordinate Judge appears to us to have put the matter very clearly. He says in the course of his judgment. “The suit does not seem to me to be barred either by section 13 or section 43 of the Civil Procedure Code. It is true that a previous suit for possession of particular portions of the properties now in dispute between these same parties was fought, the plaintiffs in the present suit being also plaintiffs in the former suit, and that was dismissed. But it appears that the cause of action in the two suits was not the same. In the previous suit the plaintiffs sought to recover possession of particular portions of the disputed houses, etc., on the allegation that according to a perfect partition made by the Revenue Court, they were owners and in possession of those portions, and that they were illegally dispossessed by the defendants. In the previous suit the plaintiffs sought to recover possession of particular portions of the disputed houses, etc., on the allegation that according to a perfect partition made by the Revenue Court, they were owners and in possession of those portions, and that they were illegally dispossessed by the defendants. That suit was dismissed by the Court, holding that partition was not proved, and that even if the Revenue Court had made such partition, it was infructuous and illegal, and it was never acted upon. Being defeated in that suit, the plaintiffs have brought the present suit for partition, asserting that the house, garhi, etc., are joint, as the court in the previous suit held that partition was not proved, and that they be allowed to recover possession over half of them to which they are entitled. It is thus clear that the cause of action for the present suit is not the same as it was in the previous suit. But it is urged that present prayer for relief could have been included in the former suit in the alternative. I do not think that such a relief could have been prayed for in the other suit on the statement of facts made in it, and, in the next place, I do not think, assuming that the plaintiffs could have prayed for such a relief, that it was incumbent upon them to do so.” 3. We concur in the view thus expressed by the learned Subordinate Judge. It appears to us that the two causes of action could not conveniently, in any case, have been put for ward in the original suit, and we are of opinion that the plaintiffs, who, under a misapprehension of their rights in the former suit, failed in that suit, were not precluded from relying upon the title which they clearly had to a partition of the joint property. We therefore must allow this appeal, set aside the judgment of this Court with costs, and restore the decree of the lower appellate Court.