JUDGMENT : Misra, J. - Ananta, Rathi and Maguni were brothers. Uchhab (Defendant No. 1), Nanda (Defendant No. 2) and Binode (Defendant No. 3) are the sons of Ananta. Padan (Plaintiff No. 1) IS the son of Rathi and Plaintiffs to 4 are his sons. Nabin (Defendant No. 4) is the son of Maguni and Defendants 11 and 12 are his sons. Defendants 5, 6 and 13 are the descendants of Defendant No. 1. Defendants 7 to 10 are the descendants of Defendant No. 3. Plaintiffs' suit is for declaration of title and confirmation of possession of the disputed lands on the allegation that in a partition by metes and bounds in 1941-42 the same were allotted to their one-third share. Defendants 1 and 4 supported Plaintiffs' case. Defendants 2 and 3 contested the suit denying the partition in 1941-42. They pleaded that there was a partition by metes and bounds in 1922 and that the properties mentioned in their written statement were allotted to the share of the Plaintiffs. The trial Court disbelieved the defence version of the partition ill 1922 and accepted the Plaintiffs' case of partition by metes and bounds in 1941-42. The defence plea of claiming certain properties as their self acquisition was also disbelieved. It, however, held that the Plaintiffs failed to establish that the lands, claimed in the plaint, fell to their share in the family partition of 1941-42 Instead of dismissing the suit, it decreed it respect of the lands mentioned in the written statement of Defendants 2 and 3 as having been allotted to the Plaintiffs. Plaintiffs filed an appeal. Before the lower appellate Court, the finding that there was a partition by metes and bounds in 194142 was not assailed. The only question that was argued before the lower appellate Court was that the lands mentioned in the plaint schedule were allotted to the Plaintiffs. Plaintiffs' contention was accepted, the suit was decreed and the appeal was allowed. Against the appellate decree, the second appeal has been filed by Defendants 2 and 3. 2. Mr Ray advanced two contentions: (i) The finding of fact of the lower appellate Court that the plaint schedule properties were allotted to the share of the Plaintiffs in the partition of 1941-42 is contrary to law inasmuch as it was based on the admissions of Defendants 1 and 4 in their written statement supporting Plaintiffs' case. 2. Mr Ray advanced two contentions: (i) The finding of fact of the lower appellate Court that the plaint schedule properties were allotted to the share of the Plaintiffs in the partition of 1941-42 is contrary to law inasmuch as it was based on the admissions of Defendants 1 and 4 in their written statement supporting Plaintiffs' case. If those admissions are excluded from consideration, there is no other evidence, excepting that of Plaintiff No. 1 (p.w.1), to establish the factum of allotment of the disputed lands to the share of the Plaintiffs. (ii) This suit is barred by constructive res judicata u/s 11, Explanation IV, Code of CPC as the Plaintiffs might and ought to have taken the plea of allotment of the disputed lands to their share in C.S.9 of 1954 in the Court of the Subordinate Judge, Puri. 3. The first contention is without substance. Doubtless the lower appellate Court has taken into consideration the admissions of Defendants 1 and 4 in their written statement supporting Plaintiffs' version. It is unnecessary to express any opinion whether those admissions are admissible or not. It would be sufficient to say that even if those admissions are excluded, the residue of the evidence relied upon by the lower appellate Court is sufficient to support its finding. It held the Plaintiff No. 1 (p.w.1) advanced a consistent version all through while the evidence of Defendant No. 2 (d.w.1) was prevaricating and inconsistent. No reliance was placed by the learned Judge on other witnesses examined by the parties. It is no doubt true that there is no other evidence in support of the version of p.w.1 that the disputed lands fell to their share. It is, however, open to a final Court of fact to prefer the testimony of Plaintiff No. 1 to that of Defendant No. 2. The finding recorded in the present case by the learned lower appellate Court is a pure fainting of fact and is binding on me in second appeal. 4. The second contention is equally without substance. The plea of res judicata was not taken up in the written statement. In paragraph 6 a reference was made to O.S. 9 of 1954 and a plea was taken that the suit was not maintainable. No issue was framed on the question of res judicata. In issue No. 1, the question of maintainability was argued. The plea of res judicata was not taken up in the written statement. In paragraph 6 a reference was made to O.S. 9 of 1954 and a plea was taken that the suit was not maintainable. No issue was framed on the question of res judicata. In issue No. 1, the question of maintainability was argued. The learned Munsif held that the suit was maintainable. No argument even on the question of res judicata appears to have been advanced. Before the lower appellate Court this plea was not taken. Thus for the first time the plea of res judicata was advanced in the second appellate Court. 5. To appreciate this question the relevant facts upon which the plea of res judicata is based may be stated from the judgment (ext. 1) in O.S. 9/54 dated 16-1-1957. Parties are the same in that suit as wen as in the present suit. The present Plaintiffs were also the Plaintiffs in that suit. The case advanced in that suit was that there as an amicable partition amongst the parties in 1941-42 and that certain lands fell to the share of Plaintiffs. There was separation of mess and residence and division of a)) the joint family properties in three equal shares. The three branches remained in separate cultivating possession of the lands allotted to their respective shares. As there was no documentary evidence in support of the amicable partition, Plaintiffs were compelled to bring that suit for partition of their shares by metes and bounds. There the learned Subordinate Judge held, after contest, that the amicable partition of the year 1941-42 was a partition by mete:' and bounds and that a suit for a fresh partition was not maintainable. It is to be noted that in the prior suit, Plaintiffs did not pray for declaration of title and confirmation of possession of the lands which were allotted to their share in the alleged partition. 6. The distinction between the pleas in the two suits must be clearly brought out. The prior suit was one for partition by metes and bound:' of the entire joint family properties belonging to the three branches on the averment that the amicable arrangement of the year 1941.42 effected a severance of joint status and that the separate possession of the parties was merely for convenience. The prior suit was one for partition by metes and bound:' of the entire joint family properties belonging to the three branches on the averment that the amicable arrangement of the year 1941.42 effected a severance of joint status and that the separate possession of the parties was merely for convenience. The present suit, on the other hand, accepts the ultimate decision of the Subordinate Judge in the prior suit that the arrangement of 1941-42 effected a partition by metes and bounds. On that footing the present suit is for declaration of title and confirmation of possession of the lands allotted to the share of the Plaintiffs with a permanent injunction. 7. With the aforesaid distinction in view, the law may be examined. Section 11, Code of CPC lays down No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the such parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Though both the suits are between the same parties, Section 11, by itself, has no application to the present suit. The issue before this Court now is whether the disputed lands were allotted to the share of the Plaintiffs in a partition by metes and bounds of 1941-42. Admittedly this was not the issue in the former suit. Thus in both the suits, the same title was not litigated. The issues involved in this suit had not been hear-a and finally decided in the former suit. The test of res judicata is the identity of title and not of the actual property involved in the two cases (see para 19 of Raj Lakshmi Dasi and Others Vs. Banamali Sen and Others. In Sundarbai v. Devaji, AIR 1951 S.C. 82 the same principle was expressed thus Where the right claimed in both the suits is the same, the subsequent suit would be barred as res judicata, though the right in the subsequent suit is sought to be established on a ground different from that in the former suit. Banamali Sen and Others. In Sundarbai v. Devaji, AIR 1951 S.C. 82 the same principle was expressed thus Where the right claimed in both the suits is the same, the subsequent suit would be barred as res judicata, though the right in the subsequent suit is sought to be established on a ground different from that in the former suit. It would be only in those cases where the rights claimed in the two suits were different that the subsequent suit would not be barred as res judicata even though the property was identical. Section 11 has, therefore, no application in terms. S. Mr. Ray accordingly bases him contention on Explanation IV to Section 11. It enacts that any matter which might and ought to have been made 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. It follows as a necessary corollary that if such matters shall be deemed to have been directly and substantially in issue, they must also be deemed to have heard and finally decided by such Court. It would thus be necessary to examine the scope of Explanation which embodies the doctrine of constructive res judicata. The words 'might' and 'ought' are of wide amplitude. The word 'might' conveys the idea of the possibility of joining all grounds of attack or defence, and 'ought' carries the idea of the propriety of so joining. The theory of res judicata is based on the doctrine that no party should be vexed again over the same cause. An alternative basis on which a claim can be sustained should be set up in any suit to enforce the claim then it is not set up, the basis omitted in the prior suit should not be permitted to sustain the second suit. 8. The relief sought in the present suit could have bee claimed in the former suit. Plaintiffs could have framed the former suit asking for an alternative relief that if in any view of the matter the arrangement of 194:1-42 would be construed as a partition by metes and bounds, than the Plaintiffs' title to those lands would be declared and their possession confirmed. The more important question, however, is whether the Plaintiffs ought to have set up such a plea. The more important question, however, is whether the Plaintiffs ought to have set up such a plea. It is now well settled that the answer to such a question would vary on the facts of each case. No hard and fast rule can be laid down. Though no definite rule on the point can be laid down, it has been authoritatively pronounced in Kameswar Prasad v. Raj Kumari Ratan Koer L.R. 19 I.A 234 : ILR Cal. 79 that where the matters are dissimilar that their union might lead to confusion, the plea ought not to be set up. Their Lordships put it thus: That it 'might' have been, made a ground of attack is clear. That it 'ought' to have been, appears to their Lordships to depend upon the particular fact of each case. Where matters are so dissimilar that their union might lead to confusion, the construction of the word 'ought' would become important, in this case the matters were the same. It was only an alternative way of seeking to impose a liability upon Pun Bahadoor, and it appears to their Lordship.: that the matter 'ought' to have been made a ground of attack in the former suit. The underlined expression furnishes the key to the construction of the word 'ought' Certain tests have been laid down as to the meaning of the aforesaid expression. Pleas that would make the suit bad for multifariousness or would embarrass the trial thereof; third pleas, the evidence in support of which is such that it might be destructive of the other pleas, come within the expression. 9. The contention of Mr. Roy that this suit wag barred by constructive res judicata may be examined by the aforesaid tests. The former suit was for partition. Consistent with such a plea, the witnesses for the Plaintiffs were to depose in Court that by amicable arrangement in 1941.42 there was merely severance of joint, status and no complete partition by metes and bounds and that separate possession in respect of one-third of the total joint family properties was merely for convenience. In this case, the evidence to be given by the Plaintiffs must be to the effect that there was complete partition by metes and bounds in 1941.4 and that the separate possession of the lands allotted to the share of the Plaintiffs was in their own right, title and interest. In this case, the evidence to be given by the Plaintiffs must be to the effect that there was complete partition by metes and bounds in 1941.4 and that the separate possession of the lands allotted to the share of the Plaintiffs was in their own right, title and interest. The two pleas are calmly dissimilar and completely different in their juristic concept. Union of such pleas might lead to confusion. It can hardly be disputed that the evidence produced in support of complete partition by metes and bounds is destructive of the evidence produced in support of the pleas of severance of joint status and separate possession for convenience. This suit is not barred by res judicata. Opportunities were given to the learned advocates for both parties by adjourning the case to cite authorities directly on the point. They made a statement that they were unable to find a single decision covering this point. In Sivram v. Narayan ILR Bom. 27, a converse case arose for consideration. The facts in that case were that in 1871 the Plaintiff sued to establish his sole right to a 'portion of a field on the ground that it had been allotted to him by partition. The Defendant also claimed it as his share obtained by parties. The Court rejected the Plaintiff's claim holding that no partition had taken place and that the field was the joint properly of five coparcenaries including the Plaintiff and the Defendant. In 1878 the Plaintiff brought a second suit for partition of the field including the portion for which his former suit had been instituted. A Bench of the High Court, presided over by Sir Westropp C.J., held that the second suit for partition was not barred by res judicata. Mr. Ray's contention that the present suit is barred by Res judicata must be rejected. 10. Mr. Mohapatra contended that the plea of res judicata cannot be entertained for the first time in second appeal even though all the materials necessary for determination of the plea were on the record. Reliance was placed on State v. M/s. Ouseph Thomas AIR 1952 T.C. 52 . In my view, the contention is too wide. 10. Mr. Mohapatra contended that the plea of res judicata cannot be entertained for the first time in second appeal even though all the materials necessary for determination of the plea were on the record. Reliance was placed on State v. M/s. Ouseph Thomas AIR 1952 T.C. 52 . In my view, the contention is too wide. In AIR 1936 258 (Privy Council), the High Court had declined to allow the Appellant to go into the question of res judicata on the ground that it had not been properly raised by the pleadings or in the issues, particularly in the issues. Their Lordships accepted the High Court's view as correct with the observation that it was necessary for the Appellant, if he were going to make use of the judgment in the suit of 1900 as res judicata to identify the subjects in dispute in the present case with the subjects which in that case were held to belong to the Raja and not to the tenants. The true position that appears to me is that where the necessary materials are on record on which at plea of res judicata can be sustained, the plea can be allowed to be raised even at the appellate stage. If, however, any pre judice is to be caused due to lack of materials, the plea should be disallowed. In this case, the judgment in the former suit (ext. 1) was produced and exhibited by the Plaintiffs themselves. It clearly indicates the issues involved in the former suit and how those issues were heard and decided. In order to see what was in issue in a suit, or what has been heard and decided, by the judgment in the former suit must be looked at. The decree only to state the relief granted or other determination of the suit. The determination may be on various grounds. But the decree does not show on what grounds and does not afford any information as to the matters which were in issue of had been decided. If the judgment does not give a clear concept of the issues involved or facts in the former suit, reference may be made to the pleadings of the parties. But the decree does not show on what grounds and does not afford any information as to the matters which were in issue of had been decided. If the judgment does not give a clear concept of the issues involved or facts in the former suit, reference may be made to the pleadings of the parties. But where the judgment clearly states the facts of the former suit, issues involved and the points, which were heard and decided, a plea of res judicata can be disposed of on the oasis of the judgment alone. In this case, ext. I satisfies all the tests and the plea of res judicata can be decided on its basis. In the facts and circumstances of this case, the plea is entertainable even at the second appellate stage without causing any prejudice to the Plaintiffs. Mr. Mohapatra's contention has no force. 11. In tie result, the second appeal fails and is dismissed, in the circumstances, parties to bear their own costs throughout. Appeal dismissed. Final Result : Dismissed