JUDGMENT Brett, J. - The present appeal arises out of a suit brought by the present Plaintiffs Appellants to have their right declared in 491/2 bighas of land in village Sajibala, and to have their names registered in the Collectorate as proprietors of those 491/2 bighas. It appears that they had applied in the Land Registration Department of the Arrah Collectorate in July 1903 to have their names registered as proprietors of this property claiming title as purchasers in execution of a mortgage decree at a sale held on the 3rd January 1897. The Deputy Collector allowed the application but on appeal the order of the Deputy Collector was set aside by the Collector of Arrah and the decision of the Collector was confirmed by the Commissioner of the Division on the 18th June 1904. The only point urged in defence which is of importance for the purpose of this appeal was that the Plaintiffs were barred by the doctrine of res judicata under the provisions of sec. 13, Exl. (2) of the Code of Civil Procedure. The explanation runs as follows:-- Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit." 2. The Plaintiffs Appellants all form members of one family of Tewaris descended from one Mussummat Bihansa Koer and her husband Hanker Singh Tewari. The Defendants on the other hand are members of a family of Sings descended from Mussummat Lachminia Koer and her husband Babu Bhugwan Singh. 3. On the 1st March 1888 a suit was brought by Sheobaran Tewari, the father of Plaintiffs Nos. 5, 6 and 7, and the brother of the other Plaintiffs, in the Small Cause Court against Mohabir Singh and Budhan Singh, the father of Defendants Nos. 4, 2 and 3, on a bond for Rs. 100 said to have been executed by these two persons in favour of Sheobaran Tewari on the 8th July 1884. An ex parte decree was obtained on the 21st March 1888 and in execution of the same the decree-bolder Sheobaran Singh sold the whole village Sujibal on the 7th May 1890 and purchased it himself. 4. On the 2nd May 1884 a mortgage bond for Rs. An ex parte decree was obtained on the 21st March 1888 and in execution of the same the decree-bolder Sheobaran Singh sold the whole village Sujibal on the 7th May 1890 and purchased it himself. 4. On the 2nd May 1884 a mortgage bond for Rs. 1,000 is said to have been executed in favour of Bihansa Koer, ancestors of the Plaintiffs, by the predecessor of Defendants Nos. 2 to 4 by which 491/2 bighas of Mouzah Sujibal were hypothecated as security for the debt. A suit was instituted in 1889 (No. 91 of 1888) by Bihansa Koer against the present Defendants Nos. 2, 3 and 4, and a decree was obtained on the 27th February 1890. The Defendants appealed but their appeal was dismissed on the 7th October 1890. On the 3rd January 1897 the mortgaged property was sold and purchased by the decree-holder, Bihansa Koer. 5. On the 30th September 1899 a suit was brought by the present Defendants (2, 3 and 4) to have set aside the ex parte Small Cause Court decree of the 21st March 1888 and the sale under that decree held on 7th May 1890 on the ground that the bond and the proceedings based on that bond were fraudulent. 6. On the 13th January 1900 the same Defendants brought another suit to have the mortgage decree of the 27th February 1890 and the sale under that decree of the 3rd January 1897 set aside on the ground that the mortgage-bond and the proceedings based on that bond were fraudulent. This latter suit was dismissed for default on the 7th May 1901. Bihansa Koer, it is to be observed, had died in January or February 1901. 7. The suit to set aside the Small Cause Court decree and the sale there under was decreed in favour of the then Plaintiffs, the present Defendants Nos. 2, 3 and 4, on the 20th December 1900, and that decision was affirmed on appeal on the 12th June 1903. 8. 7. The suit to set aside the Small Cause Court decree and the sale there under was decreed in favour of the then Plaintiffs, the present Defendants Nos. 2, 3 and 4, on the 20th December 1900, and that decision was affirmed on appeal on the 12th June 1903. 8. The present suit was instituted on the 27th September 1904 and the main ground of defence taken by the Defendants was that the Plaintiffs were not entitled to succeed in the suit because they had failed in their defence in the suit instituted on the 30th September 1899 to set aside the Small Cause Court decree to set up the title under which in the present suit the Plaintiffs seek to have their right declared in the 491/2 bighas of land in Mouzah Sujibal. 9. The Subordinate Judge decreed the Plaintiffs' suit, but on appeal the District Judge set aside the judgment and decree of the Court of first instance and dismissed the Plaintiffs' claim on the ground that it was barred by the provisions of sec. 13, Expl. (2) of the Code of Civil Procedure. 10. In support of the appeal it has been argued, first, that the subject-matter of the suit brought on the 20th September 1899 by the Defendants to set aside the Small Cause Court decree did not cover the property in claim in the present suit and therefore sec. 13, Expl. (2) did not impose on the present Plaintiffs-Appellants any duty in that suit to set up as part of their defence the title which they claimed under the sale in execution of the mortgage decree; secondly, that even though it may be a matter which they might have pleaded in their defence in that suit, it was not a matter which it can be held that they ought to have pleaded in their defence; and, thirdly, that even assuming that it is now open to the present Defendants to raise the objection which they have raised in their defence, still as they were parties to the previous mortgage suit which was decided against them and as they failed in that suit which they instituted to have that mortgage decree and the sale there under set aside they are estopped from now setting up the plea which they have raised. 11. 11. On behalf of the Defendants it has been argued that the conduct of the Plaintiffs in the previous litigation was such as to render it compulsory on them to set up in their defence in the suit brought to set aside the Small Cause Court decree the title on which they are now relying in support of the present suit. In that litigation the present Plaintiffs all along repudiated the idea that they had any right under the mortgage deed and asserted that Bihansa Koer was in that suit acting entirely on her own account and that they had no concern with her. In the present case it has been found that the position taken up by the Plaintiffs in that litigation was a false position, and that in fact they were the persons principally interested in the mortgage, and Bihansa Koer was merely acting as their representative in the litigation. It has further been pointed out that Defendant Sheo Gobind did not attain majority till 1897 and that the other Defendant's are younger than him and, therefore, that in the previous litigation all those Defendants were minors. If the findings in the present suit be accepted the Plaintiffs had purchased the whole of the mouzah in execution of the Small Cause Court decree on the 7th May 1890 whereas the purchase in execution of the mortgage decree was not made till January 1897. If the Plaintiffs relied on their title under the two purchases, then when the suit was brought on the 30th September 1899 to set aside the sale of the whole mouzah and to obtain possession of the whole mouzah from the present plaintiffs, they were bound to set up every title which they had in the mouzah which they could put forward to defeat the claim then made by the present Defendants, they were not entitled to keep back the secret title under which they now claim under the mortgage decree and to bring it forward in the present suit. In support of this contention we have been referred to a long series of rulings commencing with the case reported in Wafeah v. Sahuba 8 W.R 307 (1867), and ending with the cases in Kameswar Prosad v. Raj Kumari Ratan Koer L.R. 17 I.A. 234: s.c ILR 20 Cal. 79 (1892) and Sri Gopal v. Prithi Singh 6 C.W.N. 889 (1902). 79 (1892) and Sri Gopal v. Prithi Singh 6 C.W.N. 889 (1902). None of those cases however are exactly analogous to the present, the decision of which must depend its own circumstances. 12. For the Appellants reliance was mainly placed on the case of Koilath Chandra Mondol v. Ram Narain Gir 4 C.L.J. 211 (1906) and Ramaswami Aiyar v. Vithinati Aiyar I. L. R. 26 Mad. 760 (1902) also on the passage in the decision of the Privy Council in the case of Kameswar Prosad v. Raj Kumari Ratan Koer (2) occurring at p. 238, which explains the meaning of the word 'ought' as used in the expl. (2) of the sec. 13 of Code of Civil Procedure. It has been argued on their behalf that the causes of action based on the title acquired by the purchaser in execution of the mortgage decree and on the title acquired by the sale in execution of the Small Cause Court decree were essentially different and that the mere fact that the two titles claimed relate one to a portion of the mouzah and the other to the whole mouzah would not render it obligatory on the present Plaintiffs to have pleaded as a defence to the suit to set aside the Small Cause Court decree and sale what would have been a defence to the other suit which was brought to set aside the mortgage decree. It is contended that in interpreting the provisions of sec. 13, Expl. (2) of the CPC the Madras High Court has in the case to which we have been referred rightly laid down that "the real test is whether the cause of action or transaction on which two suits are based is the same and not whether the transaction is sought to be established in different modes or by different means." Reliance was also placed on the dictum of their Lordships of the Privy Council in the case of Kameswar Prosad v. Raj Kumari Ratan Koer L.R. 17 I.A. 234 :s.c. I. Cal. 79 (1892), which lays down "that where matters are so dissimilar that their union might lead to confusion the construction of the word 'ought' would be important." It is pointed out that when the present Defendants instituted a suit on the 30th September 1899 to set aside the Small Cause Court decree they were fully aware that that decree covered so much of Mouzah Sujibal as was excluded from the mortgage decree which had been obtained by Bihansa Koer for 491/2 bighas, and this is clear from the fact that on the 13th January 1900 they instituted the second suit to have the mortgage decree and the sale in execution of the same set aside. It has also been pointed out that in the written statement filed in the suit brought by the present Defendants to set aside the Small Cause Court decree the present Plaintiffs who were the Defendants in that suit in their written statement filed on the 18th January 1900 expressly stated the fact that 491/2 bighas had been sold in satisfaction of the mortgage decree. It is idle, therefore, for the Defendants in the present suit now to allege that at the time when they instituted the suit to set aside the Small Cause Court decree they were not aware of the existence of the mortgage decree; and it is further clear from the fact that they instituted two suits that the property in respect of which the suit to set aside the Small Cause Court decree was brought did not cover the 491/2 bighas included in the mortgage decree. It is, therefore, not open to them, especially after they have failed in their suit to get the mortgage decree set aside now to object to the Plaintiffs' claim on the ground that they are setting up a secret title which they ought to have put forward in defence of the suit brought to set aside the Small Cause Court decree. 13. In my opinion the arguments which have been advanced in support of the appeal ought to prevail. 13. In my opinion the arguments which have been advanced in support of the appeal ought to prevail. I think it is clear from the facts on the record that the present Defendants were fully aware when they brought the suit to set aside the Small Cause Court decree that there was outstanding the decree obtained on the mortgage against the 491/2 bighas included in the mouzah and there seems no doubt that the scope of the suit brought to set aside the Small Cause Court decree did not extend over the 491/2 bighas. The causes of action in the two suits brought one on the 30th September 1899 to set aside the Small Cause Court decree and the other brought on the 13th January 1900 to set aside the mortgage decree were in my opinion distinct and were such as could not have been joined in one suit and that being the case as the present Defendants who were the Plaintiffs in that suit would have been precluded from joining the two causes of action together in one suit by way of attack, I am of opinion that it is impossible to hold that the present Plaintiffs as Defendants in that suit were bound under the law to put forward in defence to the suit brought to set aside the Small Cause Court decree, the title which they had under the mortgage decree. To hold otherwise would be to decide that it was open to the present Plaintiffs as Defendants in that suit to bring on the record Bihansa Koer who was a third party and not included in the Small Cause Court suit and to obtain a decision with regard to a cause of action which it was not competent for the Plaintiffs in that suit to raise in support of their claim. I think that such a view is impossible and that it would certainly tend to lead to such confusion as is referred to by their Lordships of the Privy Council in the case of Kameswar Prosad v. Raj Kumari Ratan Koer (2) L.R. 17 I.A. 234 : s.c. ILR 20 Cal. 79 (1892). 14. In the case of Ramaswami Aiyar v. Vithinati Aiyar I. L. R. 26 Mad. 760 (1902) the law as laid down in secs. 43 and 13 of the CPC is very fully discussed. 79 (1892). 14. In the case of Ramaswami Aiyar v. Vithinati Aiyar I. L. R. 26 Mad. 760 (1902) the law as laid down in secs. 43 and 13 of the CPC is very fully discussed. After pointing out that their Lordships of the Privy Council in the case of Pittapur Raja v. Venkata Mahipati Surya L.R. 12 I.A. 116 (1885) when referring to sec. 7 of Act VIII of 1859 which corresponds with sec. 43 of the present CPC observed that "that section does not say that every suit shall include every cause of action or every claim which a party has, but every suit shall include the whole of the claim arising out of the cause of action meaning the cause of action on which the suit is brought," the learned Judges of the Madras Court express their agreement with the view taken by the Judges of the same Court in the case of Allunni v. Kunjusha ILR 7 Mad. 264 (1883) in dealing with Expl. (2) of sec. 13 of the present Code, namely, that "it refers to the title litigated in the former suit as distinguished from the relief claimed. When several independent grounds of action are available a party is not bound to unite them all in one suit though he is bound to bring before the Court all grounds of attack available to him with reference to the title which is made the ground of action." In this view of the law I agree and I hold that it equally applies to the converse case of a Defendant when pleading in his defence. 15. Under these circumstances I am of opinion that the title which the Plaintiffs set up in the present suit was not one which they ought to have made a ground of defence in the former suit and therefore they are not precluded under the provisions of sec. 13, Expl. (2) of the CPC from obtaining relief in the present suit. The subject-matters of the suit which was brought to set aside the mortgage decree and the suit which was brought to set aside the Small Cause Court decree were dissimilar and distinct and under these circumstances. 13, Expl. (2) of the CPC from obtaining relief in the present suit. The subject-matters of the suit which was brought to set aside the mortgage decree and the suit which was brought to set aside the Small Cause Court decree were dissimilar and distinct and under these circumstances. I think that the present Plaintiffs would not have been entitled under the law to set up as a ground of defence in the suit brought to set aside the Small Cause Court decree the title which they now seek to establish in the present suit. 16. I hold therefore that the view taken by the District Judge is incorrect and that his judgment and decree cannot be maintained. The conclusion at which the Court of first instance has arrived is in my opinion in accordance with law and I therefore set aside the judgment and decree of the lower Appellate Court and restore the judgment and decree of the Court of first instance with costs. Woodroffe, J. I am not satisfied that the Defendants have made out the plea which was urged. It is doubtful whether the Appellants might have raised the question now debated in the previous litigation. However this may be, I do not think that they were under the circumstances of the case obliged to raise it. As to this I do not think it necessary to say more as each case must in this respect be decided with reference to its own particular circumstances. I agree therefore that the appeal should be decreed in the terms proposed by my learned brother.