JUDGMENT Stephen, J. - In this case the Plaintiff sues for a declaration of his title to an 8 annas share in certain property, for joint possession thereof with the principal Defendants and for mesne profits. In the lower Courts the case was contested chiefly on questions of fact relating to the family genealogy and the history of the property in relation to the family of which all the parties were members, which were decided in the Plaintiff's favour and with which we are not concerned. A point of law was however raised on behalf of the Defendant which has been argued before us on a second appeal. This is that the suit is res judicata, and it arises as follows. Some years ago the Plaintiff sold certain lands to one Gobinda Charan Mangraj, and Defendant No. 1 in the present suit, one of the Appellants before us, sued in the Court of the Munsif of Kendrapara for recovery of the possession of the property so conveyed, and to have the Kobala granted by the present Plaintiff to his vendee set aside. He succeeded in the former claim, judgment being given in his favour on the 14th August 1899, on the ground that the present Plaintiff had no share in the disputed land and that the relationship between the Plaintiff and the first Defendant, and consequently the other Defendants, found as proved in the present case did not exist. This decision was affirmed on appeal to this Court, There is no finding before us, as to the identity of the land affected by Munsif's decree with that now in suit, or any part of it. The Kobala granted by the Plaintiff to Gobinda is however on the record and boundaries are given therein which might show that such lands are part of those now sued for. They appear only to be a part because the present suit is not within the jurisdiction of Munsif, aud it is not suggested that they are more than a part. The question before us therefore resolves itself into two parts. First, can the present suit be entertained as to so much of the land in suit as was the subject-matter of the suit in the Munsif's Court, Secondly, can the issue whether the Plaintiff is related to the Defendant, as alleged, be tried in the present suit after having been decided before the Munsif. First, can the present suit be entertained as to so much of the land in suit as was the subject-matter of the suit in the Munsif's Court, Secondly, can the issue whether the Plaintiff is related to the Defendant, as alleged, be tried in the present suit after having been decided before the Munsif. The answer of course depends primarily on sec 13 of the CPC which runs so far as it is material as follows "No Court shall try any suit or, issue in which the matter directly and substantially in issue has been directly and subtantially in issue in a former suit between the same parties...... litigating under the same title in a Court of jurisdiction competent to try such subsequent suit, or the suit in which such issue has been subsequently raised, and has been heard and finally determined by such Court." Taking the second point first the truth of the genealogy was an issue before the Munsif and is an issue here: and it follows from the judgment of Banerjee, J., In Rai Charan Ghose v. Kumud Mohon Dutt Choudhury I. L. R. 25 Cal. 571 at p. 576 (1897) based on the cases there referred to and followed in Ram Gopal Mazumdar v. Prasanna Kumar Sanial 10 C. W. N. 529 (1905) that what we have to consider is the competency of the Munsif to try the present suit, not that of the High Court, by whom his decision was affirmed on appeal. This concludes the question as the present suit is beyond the Munsif's jurisdiction. The case of Toponidhee Dhirj Gir Gosain v. Sreeputty Sahame I. L. R. 5 Cal. 832 (1880) is referred to by the lower Appellate Court, but has not been relied on by the Appellant here, as it was decided on the Code repealed by the present Civil Procedure Code, which alters the law on the subject. 2. On the first point we are invited to follow the decision in Bhugwanbutti Chowdhrani v. Forbes I. L. R., 28 Cal. 78 (1900) followed in the second case above mentioned. That case is however distinguishable from the present in an essential feature. There the Plaintiff sued before a Subordinate Judge for road and public work cesses, embankment cesses, dk cesses and other matters designated as "etc." claiming an amount, which exceeded that for which he could sue before a Munsif. 78 (1900) followed in the second case above mentioned. That case is however distinguishable from the present in an essential feature. There the Plaintiff sued before a Subordinate Judge for road and public work cesses, embankment cesses, dk cesses and other matters designated as "etc." claiming an amount, which exceeded that for which he could sue before a Munsif. In a previous suit before a Munsif the Defendant had sued for a refund of what he had paid for road and public work cesses, and the suit was decreed on the ground that the Plaintiff was not liable to pay the cesses at the enhanced rate claimed. It was held that the Plaintiff in the second suit could not join a cause of action on which he had been previously defeated with new causes of action, and that such an action amounted to an evasion of see. 13. In the present case it was not open to the Plaintiff to devise his cause of action as he might have done in the former case. By sec. 43 he was compelled "to include the whole of the claim which (he was) entitled to make in respect of the cause of action." The land he sued to recover was all held under one title according to his case. He might it is true have omitted the land which was the subject-matter of the action before the Munsif, and it may be argued that this was not land he was entitled to make a claim in respect of. But this argument is not of sufficient force to induce me to extend principle of the decision to a case where the facts differ so essentially. The principle makes an apparent, though not a real, inroad on the meaning of sec. 13. To extend it as suggested to this case, would in my opinion be making the inroad a real one. The appeal is accordingly dismissed with costs. Mookerjee, J. 3. The only substantial question of law which calls for decision in this appeal is, whether the suit is barred by the principle of res judicata. The Courts below have concurrently answered this question against the Appellants. 4. The appeal is accordingly dismissed with costs. Mookerjee, J. 3. The only substantial question of law which calls for decision in this appeal is, whether the suit is barred by the principle of res judicata. The Courts below have concurrently answered this question against the Appellants. 4. It is argued before this Court that the suit is barred by res judicata, first, because the question of title to the disputed property, which turns upon the relationship of the parties, was directly and substantially in Issue in the litigation of 1899 and was then decided in favour of the present Appellants; and, secondly, because the question of title, in so far as it affects that portion of the disputed property which formed the subject-matter of the litigation of 1899, can, in no view of the matter, be re-opened for a fresh adjudication. 5. In support of the first branch of this argument, reliance is placed upon the decision of this Court in the case of Toponidhi v. Sreeputty L. R 5 Cal. 832 (1880). IT is clear, however, that although that decision has never been formally dissented from, the rule laid down therein can no longer be regarded as good law. That case turned upon the construction of sec. 13 of Act X of 1877, the language of which was materially different from the language of sec. 13 of Act XIV of 1882. In the present Code, the words "competent to try such subsequent suit or the suit in which such issue has been subsequently raised" were expressly added; so as to make it clear that the competence required is in respect of the subsequent suit also. This view is amply supported by the decision of their Lordships of the Judicial Committee in Raghubar Dayal v. Sheo Baksh Singh I.R. 9 I.A. 197: s.c. ILR 9 Cal. 439 (1882) and Ram Bahadur Singh v. Lachoo Koer L.R. 12 I.A. 23: s.c. ILR 11 Cal. 301 (1884). Under the present Code, in order to establish the plea of res judicata in cases of the description now before us, it has to be shown that the Court of concurrent jurisdiction which decided the former suit, was a Court of jurisdiction competent to try the subsequent suit--[see Ramdayal v. Janki Das ILR 24 Bom. 456 (1900) and Panga v. Unnikutti I.L.R., 24 Mad. 275 (1900)]. 456 (1900) and Panga v. Unnikutti I.L.R., 24 Mad. 275 (1900)]. It follows, therefore, that the first branch of the contention of the Appellants cannot be sustained. 6. The second branch of the contention of the Appellants is that the suit is barred by res judicata at least with respect to that portion of the disputed property which is alleged to have been the subject matter of the previous litigation. In support of this position, reliance is placed upon the case of Bhugwanbutti v. Forbes ILR 28 Cal. 78 (1900) and Ram Gopal v. Prasanna Kumar 10 C.W.N. 529 (1905), The decision of the question raised, however, must depend primarily upon the language of the Code, which seems to me to make it reasonably plain that in order to establish the plea of res judicata the Court which decided the former suit must have been such a Court as would have been competent to try and decide not only the particular matter in issue in the subsequent suit but also the subsequent suit itself in which the issue is subsequently raised. In support of the proposition, it is sufficient to refer to the decision of their Lordships of the Judicial Committee in Gokul Mandar v. Padmanand Singh ILR 29 Cal. 707 (1902) in which Lord Davey pointed out that sec. 13 of the present Code, which embodied the principle just enunciated, goes in this respect beyond sec. 13 of the previous Code (Act X of 1877) and also beyond the law laid down by the Judges in The Duchess of Kingstone's case Smith L. C. Vol. II, p. 713 (1776). Lord Davey further observed that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction. If the principle thus interpreted by the Judicial Committee is applied to the case before us, there can be no possible controversy that the plea of res judicata cannot be sustained. 7. If the principle thus interpreted by the Judicial Committee is applied to the case before us, there can be no possible controversy that the plea of res judicata cannot be sustained. 7. It was faintly suggested, however, on behalf of the Appellants that as in the previous litigation the decision of the Court of first instance was subsequently affirmed by this Court, and as in the present litigation also the matter has been carried before this Court, the plea of res judicata ought to be allowed, or, in other words, that the true criterion is the competency of the Court of Appeal to decide the question. In my opinion, this contention is not well-founded. It is now firmly settled that it is the competency of the original Court which decided the former suit that Court which looked to and not that of the Appellate Court in which the suit was ultimately decided on appeal. [See Bharasi v. Sarat Chandra ILR 23 Cal. 415 (1895), Kailash Chandra v. Tarak Nath ILR 25 Ca. 571 note (1897) and Ram Gopal v. Prasanna Kumar 10 C.W.N. 529 (1905). 8. It was argued, farther, that the view we take is inconsistent with the decision of this Court in Bhugwanbutti v. Forbes ILR 28 Cal. 78 (1900). It may be a matter for controversy whether some of the observations, at any rate, in the decision relied upon may not be difficult to reconcile with the provisions of sec. 13 of the Code as interpreted in the judgment of the Judicial Committee to which reference has been made. This much is clear, however, that the decision turned upon facts and circumstances which are essentially distinguishable from those of the case before us, for the reasons set forth in the judgment of my learned brother. 9. Reliance was also placed upon the decision of the learned Judges of the Madras High Court in Pathuma v. Salimamma ILR 8 Mad. 83 (1884), with reference to which it is only necessary to observe that although it was decided after the present Code had come into force, some of the observations, at any rate, appear to be based upon the law as it was understood to be under the Code of 1877. On these grounds, I must hold that the second branch of the contention of the Appellants cannot be supported. On these grounds, I must hold that the second branch of the contention of the Appellants cannot be supported. The appeal consequently falls and must be dismissed with costs.