ORDER V.B. Newaskar, J. Circumstances giving rise to the present petition for revision are as follows. One Gangaram had three sons Shivlalsa, Kalusa and Dhannalalsa. Shivlalsa had two wives Zhumakbai and Shakarbai and also a daughter named Radhabai through the latter. Kalusa's son is Bhilchand. Plaintiff in the present suit is Dhannalalsa. He had filed another suit earlier namely Civil Suit No. 22 of 1955 against Zumakabai, Radhabai and Bhilsa alleging that the immovable property consisting of houses and agricultural land including two houses one in mouza Thikari and the other in mouza Maltar and land bearing Khasra numbers 214/1 and 214/2 assessed to revenue of Rs. 28-4-0 situated in mouza Maltar was the ancestral property of the family of the plaintiff having been acquired by their ancestor Gangaramsa; that there was partition between the sons of Gangaramsa in Samvat year 1988-89 in which Shivlalsa willingly gave up his interest in favour of his two brothers namely the plaintiff and Kalusa; that the ancestral property was accordingly divided between Kalusa and the plaintiff and the aforesaid two houses and the land at mouza Maltar fell to the share of the plaintiff; that due to the spirit of sacrifice exhibited by Shivlalsa the plaintiff permitted Shivlalsa and his wives to stay in the house at Thikari and to enjoy the land consisting of Khasra numbers 214/1 and 214/2 of Maltar for their life as licensees; that the plaintiff had been in possession of the house at Thikari jointly with Shivlalsa and his wives and that after the death of Shivlalsa defendant No. 1 Zumakabai expressed her determination to sell the house at Thikari to Radhabai and that at Maltar to an outsider named Mangilal. The plaintiff therefore claimed in that suit a declaration- (a) that the two houses and the land Khasra numbers 214/1 and 214/2 belonged to the plaintiff and that Zumakabai had no right to sell the same, and that Zumakabai's possession was that of a licensee which the plaintiff did not want to disturb. Relief of permanent injunction was also asked for. This suit was initially filed in the Court of Maheshwar and bore No. 250 of 1954. Later it was returned for presentation to proper Court and was filed there. This was No. 22 of 1955. During the pendency of that suit Zumakabai died. Relief of permanent injunction was also asked for. This suit was initially filed in the Court of Maheshwar and bore No. 250 of 1954. Later it was returned for presentation to proper Court and was filed there. This was No. 22 of 1955. During the pendency of that suit Zumakabai died. No steps were taken to bring on record her legal representatives and the suit consequently was held to have abated. Appeal preferred against that decision was dismissed. The present suit was then filed in the year 1959 alleging the following facts pleaded in the earlier suit namely regarding partition between the plaintiff and Kalusa in the Samvat year 1985 and not in the Samvat year 1988-89 as alleged earlier in which Bhilsa did not take any share, regarding the two houses of Thikari and Maltar as well as the land Khasra numbers 214/1 and 214/2 falling to his share along with other items of property and regarding Shivlals a and Zumakabai being allowed to stay in the Maltar house and to enjoy the land as his licensees for life. Further and fresh facts alleged were regarding the death of Zumakabai on 4-3-1957 and assertion of right by Radhabai to these properties. It was also alleged that Radhabai took steps in the revenue Courts to secure mutation of her name on those two Khasra numbers. She failed in two Courts and her second appeal was pending before the Revenue Commissioner. The cause of action for this suit was stated to be the date of death of Zumakabai and the reliefs claimed were:- (a) for declaration of his title. (b) for possession. On these facts it was inter alia contended on behalf of the defendants that the earlier suit of the plaintiff having been abated and the order having become final it is not open for the plaintiff to file a fresh suit on the same cause of action and that the second suit would be barred under Order 2, rule 2, Civil Procedure Code and also by reason of Order 22, rule 9, Civil Procedure Code. This contention was not accepted by the trial Court which held that neither Order 22, rule 9, Civil Procedure Code nor Order 2, rule 2, Civil Procedure Code barred the present suit as the causes of action in the two suite are not the same. In this revision petition Mr. This contention was not accepted by the trial Court which held that neither Order 22, rule 9, Civil Procedure Code nor Order 2, rule 2, Civil Procedure Code barred the present suit as the causes of action in the two suite are not the same. In this revision petition Mr. Chaphekar for the defendant contended that in spite of slight variation as to relief the cause of action in the two suits is substantially identical. He therefore urged that the present suit is barred both under Order 22, rule 9, Civil Procedure Code as well as under Order 2, rule 2, Civil Procedure Code. By erroneous decision of this question, the Court has assumed jurisdiction to try the suit which the aforesaid provisions had taken away. Reliance was sought to be placed in this connection upon the decision reported in Md. Khalil Khan v. Mahbub Ali Mian AIR 1949 PC 78. He also contended that by the operation of Order 22, rule 9, Civil Procedure Code since the former suit had abated a second suit on the same cause of action is barred. As regards the first it is well settled that the object of this provision is to avoid splitting up of claims and to prevent multiplicity of suits. The defendant according to this provision, ought not to be vexed twice for one and the same cause of action. This principle underlying Order 2, rule 2, Civil Procedure Code was clearly expressed by their Lordships of the Privy Council in a case from Ceylon reported in Payana Reena Saminathan v. Pana Lana Palaniappa 41 IA 142, in the following terms:- Their Lordships are of opinion that the learned Judge took an erroneous view of the object and meaning of this section. It is directed to securing the exhaustion of the relief in respect of a cause of action, and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transactions. The first part of the clause makes it incumbent on the plaintiff to include the whole of his claim in his action. The second portion makes it incumbent on him to ask for the whole of his remedies. The first part of the clause makes it incumbent on the plaintiff to include the whole of his claim in his action. The second portion makes it incumbent on him to ask for the whole of his remedies. The principle thus laid down in this case regarding non-compellability of inclusion of alt the available causes of action in the same suit by reason of this provision was referred to by their Lordships of the Privy Council in a later case reported in Jagat Singh v. Sangat Singh AIR 1940 PC 70. In that case the plaintiff Sundar Singh had brought a suit against Bishan Devi for declaration that her husband Ishar Singh had no power to dispose of the properties in suit by his will as the same were joint family properties. The properties in respect of which this declaration was asked for were immovable properties at Mahal Nathe and Nowshahra, the stock of liquor and opium at Peshawar and the Government promissory-notes worth Rs. 13,000 in deposit in Peshawar. The suit was filed in the Court of District Judge, Peshawar. It was stated in the plaint that a separate suit would be brought for the recovery of ornaments, other movable property and the lands in Lyallpur in the possession of Bishan Devi. Later another suit was brought after Sundar Singh's death by his sons for the recovery of lands, a Lyallpur land which under the terms of compromise in the first suit had been allowed to be with Bishan Devi for life. Bishan Devi made a gift of that land in favour of Sangat Singh and another and the deed of gift was bad. The suit was brought in the Court of District Judge, Lyallpur. The question for consideration was whether the second suit of Sundar Singh's sons was barred on the principle of Order 2, rule 2, Civil Procedure Code. Their Lordships observed at page 73:- The High Court would seem to have assumed that section 19 was not merely permissive: also that the claim to recover possession of the Lyallpur lands and the claim to a declaration as regards the other lands were claims in respect of the same cause of action: Payana Reena Saminathan v. Lana Palaniappa 41 IA 142. Their Lordships think that both assumptions are highly debateable. Their Lordships think that both assumptions are highly debateable. These observations are significant and indicate that the causes of action in the two suits appeared to their Lordships to be separate. In Md. Khalil Khan v. Mahbub Ali Mian AIR 1948 PC 78 the plaintiffs had really split the cause of action by not including all the properties to which they were entitled on the basis of one and the same cause of action and had resorted to multiplicity of actions against the same defendants. This was held to be hit by Order 2, rule 2, Civil Procedure Code. The case has no direct application except as regards the principles laid down in that case. These are:- (1) The correct test in cases falling under Order 2, rule 2, is 'whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit'. Moonshee Buzloor Ruheem v. Shumsunnisa Begum (1867) 11 MIA 551 : 2 Sar 259 (PC). (2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. Read v. Brown (1889) 22 QBD 128 : 58 LJQB 120. (3) If the evidence to support the two claims is different, then the causes of action are also different. Brunsden v. Humphrey (1884) 14 QBD 141 : 53 LJQB 476. (4) The causes of action in the two suits may be considered to be the same if in substance they are identical. Brunsden v. Humphrey (1884) 14 QBD 141 : 53 LJQB 476. (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers..........to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. Muss. Chandkour v. Partab Singh 15 IA 156 : ILR 16 Cal 98 (PC). This observation was made by Lord Watson in a case under section 43 of the Act of 1882 (Corresponding to Order 2, rule 2), where plaintiff made various claims in the same suit. Muss. Chandkour v. Partab Singh 15 IA 156 : ILR 16 Cal 98 (PC). This observation was made by Lord Watson in a case under section 43 of the Act of 1882 (Corresponding to Order 2, rule 2), where plaintiff made various claims in the same suit. Applying the above principles we have to see whether the objection regarding incompetency of the present suit by reason of Order 2, rule 2, Civil Procedure Code is correct or otherwise. Now plaintiff in the former suit sought declaration against Zumakabai that she was a mere licensee for life in respect of certain items of property, under a licence granted by the plaintiff which the plaintiff did not desire to terminate and she was not the owner of the same either limited or otherwise. Other persons impleaded were the prospective transferees including the present defendant Radhabai. The plaintiff claimed mere declaration as to this. The claim to title was based by him on the ancestral character of the property, partition amongst two brothers, the third brother namely Radhabai's father Shivlalsa having given up his interest, and the falling of suit items to him in the partition. In this suit the plaintiff puts forward the same title as the basis of his right to the suit properties. He alleged the same facts regarding the position of Shivlalsa and his widow Zumakabai being licensee for life. He however claimed possession of the properties from defendant Radhabai on the ground that on the death of Zumakabai the licence came to an end and Radhabai became a trespasser. It is clear that this is not a case of splitting of a cause of action. The plaintiff has not split the cause of action and failed to claim the whole of the relief to which he was entitled in the former suit which he now seeks against the same defendant or his legal representative. On the facts pleaded in the first suit he could not have asked for possession from Zumakabai. Radhabai though a party was impleaded only as a prospective transferee from her. The present case is based on what subsequently transpired and which ipso facto according to plaintiff, gave a right to him to sue for possession of the same property. The principal character of the present suit is different. Radhabai though a party was impleaded only as a prospective transferee from her. The present case is based on what subsequently transpired and which ipso facto according to plaintiff, gave a right to him to sue for possession of the same property. The principal character of the present suit is different. The parties are also substantially different and really there is no splitting of any cause of action. Plaintiff formerly no doubt could have terminated the licence and claimed possession from Zumakabai. But he did not choose to do so. With his volition to continue the alleged licence he could not have asked for possession. Now licence of Zumakabai ended by her death and he claimed possession from Radhabai and persons holding through her as being trespassers. The parties as well as cause of action are different and the principle of Order 2, rule 2, Civil Procedure Code cannot in this case be invoked to bar the present suit. Whether the objection regarding res judicata constructive or otherwise can successfully be put up in this case or not is not a matter about which I am called upon to express my opinion nor any arguments were addressed to me on that point by the petitioner's learned counsel. As regards the bar under Order 22, rule 9, Civil Procedure Code. This again is a question which depends upon consideration whether the cause of Action is the same and the former suit had abated. Since I have held that the causes of action in the two suits are not the same the bar under Order 22, rule 9, Civil Procedure Code is not operative. Mr. Chaphekar contended that Radhabai was a party to the earlier suit and she is the sole legal representative after the death of Zumakabai. If she was a party and was the sole legal representative that it is difficult to see how the suit could have abated. Fact however is that she was impleaded as a prospective transferee. Be that as it may, it is clear that there is neither any splitting of a cause of action by failing to include the whole of the claim and all the reliefs which the plaintiff was then entitled to against the defendant nor is there an attempt to vex the defendant twice in respect of the one and the same cause of action. Nor is the present suit barred under Order 22, rule 9, Civil Procedure Code. The Court below was therefore right in rejecting the contention of the defendant upon this point. At any rate there is no material irregularity in the exercise of jurisdiction. The petition is therefore dismissed with costs. Petition dismissed