JUDGMENT : BANERJI, J.:— The question which we have to determine in this appeal is whether the plaintiffs' claim is barred by the provisions of sections 13 and 43 of the Code of Civil Procedure. The court of first instance held that the suit was so barred. The lower appellate court has reversed the decree of the court of first instance and has remanded the suit or trial upon the merits. From this order of remand this appeal has been brought, It appears that some difference arose between the parties in respect to the possessing of the land in question in consequence of which a case was instituted in the Criminal Court, under the provisions of section 145 of the Code of Criminal Procedure. The Criminal Court made an order maintaining the defendants in possession, Thereupon the plaintiffs brought a suit, in the Civil Court claiming exclusive possession of the land in suit and mesne profits, upon the allegation that they were the sole owners of the property and were entitled to exclusive physical possession of it. The court found that the land belonged jointly to the parties and that, consequently, the plaintiffs were not entitled to exclusive possession, and accordingly dismissed the suit. The learned Judge of the appellate court in that case distinctly abstained from deciding, what the extent of the plaintiffs' interest in the property was. He suggested, however, that the plaintiff's remedy was to bring a suit for a declaration of their right to collect the rents and profits of their share in the property. In accordance with this suggestion the present suit was brought, and the prayer of the plaintiffs as contained in the plaint is that a declaratory decree may be passed to the effect that the plaintiffs are entitled to a half share in the land by right of collecting the rents payable in respect of, it. They also claim Rs. 16, which, they say, is the plaintiffs share of the rent realised from tenants by the defendants. It is contended on behalf of the defendants-appellants that, having regard to the provisions of explanation ii of section 13 of the Code of Civil Procedure, the present suit cannot be maintained. We are unable to agree with this contention. 16, which, they say, is the plaintiffs share of the rent realised from tenants by the defendants. It is contended on behalf of the defendants-appellants that, having regard to the provisions of explanation ii of section 13 of the Code of Civil Procedure, the present suit cannot be maintained. We are unable to agree with this contention. The matter involved in the present suit might have been made a ground of attack in the former suit, but we are not prepared to hold that it ought to have been made a ground of attack. Having regard to the nature of the former suit and the allegations made in it, the relief which they claim in the present suit would have been wholly inconsistent with their claim in that suit. What they alleged in the former suit was that they were the sole owners of the property and were entitled to the exclusive possession of it. In that suit they could not claim that they had a right to collect rents and profit. We do not think that explanation ii of section 13 has any application to the present case. 2. As to section 43 the cause of action in the present suit is not the same as the cause of action in the former suit. 3. Consequently the relief now claimed is not a relief which could have been asked for upon the cause of action alleged in the first suit. We think that the Court below is right and accordingly dismiss the appeal with costs.