Judgment :- 1. The 6th defendant in O.S.No. 315 of 1942, a suit for partition, is the appellant before us. The appeal arises out of R E. P. No. 121 of 1954 in R.I.A. No. 819 of 1949 on the file of the District Munsiff of Hosdrug. 2. The appellant's contention that his possession of items 2, 5, 8, 9 and 10 of the C Schedule to the final decree in O. S. No. 315 of 1942 was not liable to be disturbed in execution of the said decree was accepted by the District Munsiff of Hosdrug in R. E. P. No. 121 of 1954 and rejected by the District Judge of South Kanara in A. S. No. 102 of 1955 It is common ground that when O. S. No. 315 of 1942 was instituted items 2, 5, 8, 9 and 10 of the C schedule were in the possession of tenants that the tenants concerned were not parties to the suit, and that the appellant purchased the tenancy rights subsequent to the institution of the suit by Exts. B4, B5, B6 and B7. Ext. B4 dated 24-6-1942 relates to items 2.8 and 9. Exts. B5 and B6, both dated 19-10-1942, relate to item No. 5, and Ext. B7 dated 26-11-1942 relates to item No. 10. 3. The District Munsiff dealt with the appellant's contention as follows: "The tenants, who were in actual possession of the properties as per Exhibits BI, B2 and B3 were not parties to that suit, and 6th respondent 6th defendant obtained assignment of these properties from the said tenants subsequent to the suit. Moreover the leases executed in favour of the tenants were not impugned in O. S.315 of 1942, and such of those documents were not set aside. It follows, therefore, the petitioners can take khas possession of only those items, which are not subject to the lease-hold right of 6th respondent, and they are entitled to take constructive possession of these items subject to the leasehold right of the 6th respondent". The District Judge reversed the decision of the District Munsiff on the ground that the appellant should have set up his tenancy rights in the suit itself and as he had failed to do so, his possession was liable to be disturbed in execution of the final decree in O.S. No. 315 of 1942. The District Judge reversed the decision of the District Munsiff on the ground that the appellant should have set up his tenancy rights in the suit itself and as he had failed to do so, his possession was liable to be disturbed in execution of the final decree in O.S. No. 315 of 1942. The learned judge dealt with the matter as follows: "On the date of the partition suit the respondent had no doubt not obtained the tenancy rights in these items. But the preliminary decree in the partition suit was passed only on 5-4-1945 (vide Exhibit Al). It was long before that date that the respondent purchased the rights of the tenants. Therefore he could well have contended in the partition suit that he was entitled to special reservation in respect of these items. He ought to have filed an additional written statement and put forward these contentions". 4. We are unable to agree that there was any such obligation on the part of the appellant. He was certainly not bound to set up the tenancy rights which he had obtained subsequent to the institution of O.S. No 315 of 1942. In order that a plea might be barred by Explanation IV to S.11 of C. P. C., 1908, it must be one which not only might have been raised but also one which ought to have been raised (A.I.R. 1949 P. C. 143). 5. In Seetamma v. Kotareddy A.I.R. 1949 Madras 586 a Full Bench of the Madras High Court said: From Arichendrana Deo Garu v. Ramanna Chandiri, 3 M. H. C. R.207, onwards it has been a well-recognised principle of law that a plaintiff who acquires a fresh claim during the pendency of his suit or afterwards can bring another suit on the fresh cause of action. In that case, the plaintiff claimed a right to resume a certain jeroiti land which had been temporarily alienated. He eventually failed on that cause of action; but during the pendency of the suit the Government had transferred to him the rights in that village. He thereupon filed a fresh suit in which he claimed that the mokhasa which was the subject of the litigation in the earlier suit had lapsed to the Government and had been transferred to him by the Government. He thereupon filed a fresh suit in which he claimed that the mokhasa which was the subject of the litigation in the earlier suit had lapsed to the Government and had been transferred to him by the Government. It was held that he was entitled to put forward that plea and that the decision in the earlier suit did not operate as res judicata". In Gopalan Nair v. Bharathi Amma,1951 K.L.T. 660 = A.I.R. 1952 T-C 96 the Travancore-Cochin High Court said: "The question for consideration is whether the defendant in a suit is bound to put forward a plea on the basis of a cause of action which arises during the pendency of the suit" Followed A. I. R.1949 Mad. 586 and answered that question in the negative. 6. In the light of what is stated above the appeal has to be allowed and we do so with costs here and in the court of the District Judge of South Kanara. Allowed.