JUDGMENT : K. Sadasivan, J. 1. Plaintiffs are the appellants in this second appeal. They sued for partition of the item of property 2 acres 22 cents in extent, which belonged originally to one Poodan Raman. He died leaving three sons Mathevan, Kesavan, Parameswaran and one daughter Champakakutti. Plaintiffs 1 and 2 are the children of Mathevan, and the 3rd plaintiff is their mother. 1st defendant is Kesavan, 2nd defendant is Parameswaran and the third defendant is Champakakutti, 4th defendant is Champakakutti's son, and the 5th defendant is Parameswaran's son. Kochupennu Pitcha is the widow of Poodan Raman, who died in 1111. The plaint schedule property was gifted by Poodan Raman to Kochupennu Pitcha on 29th September 1107. On her death defendants 1 to 4 Raman Mathevan, and plaintiffs 1 and 2 have become entitled to the property as co-owners. Raman Mathevan is dead and till his death, according to the plaintiffs, he was in possession and enjoyment of the property as the seniormost member. He died in 1118 and thereafter the 1st defendant Raman Kesavan was in possession of the property on behalf of the remaining co-owners. On the death of Raman Mathevan his 1/7th share has devolved on the plaintiffs and on the death of Kochupennu Pitcha, each member became entitled to 1/7th share. On these allegations the suit was filed. There was a previous suit O.S. 383/60, filed by the selfsame plaintiffs claiming 1/4th share as the descendants of Raman Mathevan, over the selfsame properties. That suit proceeded as if the properties belonged to Poodan Raman and it continued to be his. That suit was instituted on 22nd Thulam 1136 corresponding to 7th November 1960. That suit was dismissed holding that Poodan Raman had no properties and that the plaint item which belonged to him had already been gifted to Kochupennu Pitcha. According to the plaintiffs they knew about the gift deed only when they were told so in that suit. So they were compelled to institute the present suit claiming their due share from Kochupennu Pitcha. The main contention of the defendant is that the present suit is barred by res judicata by reason of the earlier judgment, and decree in O.S. 383/60 and also that the plaintiffs have no subsisting title to the property, their title if any having been barred by limitation and adverse possession. The main contention of the defendant is that the present suit is barred by res judicata by reason of the earlier judgment, and decree in O.S. 383/60 and also that the plaintiffs have no subsisting title to the property, their title if any having been barred by limitation and adverse possession. The defendants have also raised the contention that even if the suit is construed as one under section 18 of the Ezhava Act as is claimed by the plaintiffs, it is bad for non-joinder of parties. Learned Munisff upholding the defendants' contention has dismissed the suit, which on appeal has been confirmed by the Subordinate Judge of Attingal. 2. The questions, therefore, that arise for consideration are: (i) whether the suit is barred by res judicata. (ii) whether the plaintiffs' title if any is barred by adverse possession and limitation. (iii) whether the suit is bad for non-joinder of parties. 3. On the first question learned counsel argued that since the plaintiffs have been litigating under two different titles, there is no bar of res judicata, only where the rights claimed in the two suits are the same the bar can apply. Learned counsel would expatiate and submit that on the first occasion the plaintiffs traced their title from Poodan Raman and claimed the 1 /4th to which their deceased father Raman Mathevan was entitled. But on the second occasion they have traced their title from Kochupennu Pitcha and claimed their due share under section 18 of the Ezhava Act as members of a sub-tarwad. In this view, according to the learned counsel, there is no bar of res judicata. 4. A retrospect into the previous litigations relating to the property in question would be helpful in this context. The property was acquired by Poodan Raman with his own funds and believing that he had the liberty to deal with it in his own way, gifted it away to his wife Kochupennu Pitcha on 29th Medam 1107 under Ext. D7 deed of gift. Poodan Raman's right to execute the gift was challenged by his Seshakars and a suit O.S. 305 of 1112 was filed by them in the Munsiff's Court of Attingal for partition after setting aside the gift deed. D7 deed of gift. Poodan Raman's right to execute the gift was challenged by his Seshakars and a suit O.S. 305 of 1112 was filed by them in the Munsiff's Court of Attingal for partition after setting aside the gift deed. Their case was that the property (B schedule in that suit) was acquired by Poodan Raman with the income of tarwad properties at a time when he was the karnavan and manager of the tarwad. That suit was contested by the children of Poodan Raman including the present plaintiffs' father Raman Mathevan who was defendant No. 41 in that suit. Present 1st defendant Raman Kesavan was defendant No. 43 and present 2nd defendant Raman Parameswaran was defendant No. 44 and present defendant 3 Champakakutti, was defendant No. 42 in that suit. They contended in that suit that the B schedule items which formed the subject-matter of the gift deed, were the self-acquired properties of Poodan Raman, over which he had absolute rights of disposition. In furtherance of this contention they stated that when Poodan Raman assumed management of the tarwad on the death of his elder brother Poodan Mallen, the tarwad was possessed of only one small item of property which yielded very slender income. Poodan Raman was a trader, and it was with the income that he got from his trade that the property was acquired. During the pendency of that suit Raman Mathevan father of the present plaintiffs 1 and 2 died and defendants 42 to 44 (present defendants 1 to 3) were recorded as his legal representatives. On the death of Mathevan the plaintiff in that suit applied for the impleading of his heirs in his place, but the present plaintiffs did not come forward to get themselves impleaded. Defendants 2 and 4 in that suit had put in a petition on the 24th of Idavam 1118 requesting the court to implead the wife and children of Raman Mathevan who was the 41st defendant in the suit. Even then, they did not come forward, and they were not impleaded. The suit was dismissed in respect of plaint B schedule items i.e., the properties covered by the gift deed and that decree was finally confirmed by the High Court in S.A. 689 of 1953. The judgment of the High Court was pronounced on the 21st June, 1955. Even then, they did not come forward, and they were not impleaded. The suit was dismissed in respect of plaint B schedule items i.e., the properties covered by the gift deed and that decree was finally confirmed by the High Court in S.A. 689 of 1953. The judgment of the High Court was pronounced on the 21st June, 1955. It was several years thereafter that O.S. 383 of 1960 was filed by these plaintiffs for partition ignoring the gift executed by Raman in favour of his wife. They were reminded of the gift deed, by defendants 1 to 3 in that suit (the 2 brothers and sister of Raman Mathevan) that in view of the gift deed executed by Poodan Raman, the property had fallen to the tavazhi of Kochupennu Pitcha and the suit was therefore, unsustainable. In spite of that the plaintiffs proceeded with the suit in the form in which it was instituted and got it dismissed by the court. It is in this background that the plea that the suit is barred by constructive res judicata has to be considered: “The doctrine of res judicata is based on the principle that no man shall be vexed twice over the same cause. The extension of section 11 on the lines of Explanation 4 is merely the application of the above principle. The use of the words 'might' and 'ought' shows both the wide amplitude in which the explanation works as well as the restrictions under which it operates. 'Might' conveys the possibility of joining all grounds of attack or defence together, while 'ought' conveys the reasonableness or propriety of so joining them. The explanation means that all grounds of attack and defence must betaken even if they can only be taken up in alternative except in cases, when it would be inexpedient for a party to do so. If, there is an alternative way of imposing a liability on the defendant, it ought to be made a ground of attack except in case where matters are so dissimilar that their union might lead to a confusion. It depends on the facts of each case to say whether the dissimilarities are such as may lead to confusion. If, there is an alternative way of imposing a liability on the defendant, it ought to be made a ground of attack except in case where matters are so dissimilar that their union might lead to a confusion. It depends on the facts of each case to say whether the dissimilarities are such as may lead to confusion. While it is not possible to lay down affirmatively any definite rules on this point, it may, however, be pointed out that in cases where the evidence to be produced in support of a particular ground is not destructive of the evidence to be produced for the other ground, that can be taken to support or defend a case, both of such grounds should be taken up by a party and if he fails to take up any such ground, he cannot escape the penalty provided under section 11.” (Jawaharlal vs. Chhaganlal, AIR 1959 Rajasthan 197) 5. Explanation IV to section 11 C.P.C. is to the effect that in a matter which might and ought to have been made ground of defence or attack in any such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. The plaintiffs cannot escape saying that when they filed the first suit, they were unaware of the fact that Poodan Raman had gifted away the property to his wife, because in the suit challenging the validity of the gift brought by Poodan Raman's Seshakars, as already seen, their father Mathevan Raman and his brothers and sister were all parties and on the death of their father attempts were made by the plaintiffs in that suit to get them (present plaintiffs) impleaded in the place of Raman Mathevan. The suit was fought up to the High Court and lost. The result was that the gift was upheld and it was in spite of all that, that the suit was filed by them alleging that the property belonged to Poodan Raman which after his death devolved on his children including Raman Mathevan. As men of ordinary prudence they ought not to have included that property in that suit and claimed their share as if the property had devolved on their father. In fact, there was nothing to devolve on their father and the property had in fact, devolved on their father's mother as donee from Poodan Raman. As men of ordinary prudence they ought not to have included that property in that suit and claimed their share as if the property had devolved on their father. In fact, there was nothing to devolve on their father and the property had in fact, devolved on their father's mother as donee from Poodan Raman. In such circumstances courts have held that it need not be proved in the suit that they had knowledge of the fact that the property had fallen into the hands of a person other than the one from whom they traced their title. It is enough if it is proved that they might have come to know of the existence of the deed of gift if they had exercised due diligence. That is to say, that they might have obtained knowledge of the fact about which they claimed ignorance in the suit if they had shown diligence to ascertain the truth. Mithoolal Girdharilal vs. Jainarayan Bahaunrlal, AIR 1941 Nagpur 346 is an authority for this position. There the court held that a plea which the plaintiff in the subsequent suit ought to have taken in the previous suit, is barred and the fact that he had no knowledge of the fact which he ought to have pleaded is of no avail if with due diligence he could have discovered the fact in the previous suit. The plaintiff in that suit was for some time prior to 1926 a partner of defendant 1. In that year they fell out, but instead of bringing an action against defendant 1 for dissolution of partnership and Recounts they agreed to submit their dispute to arbitration and defendants 2 to 4 were appointed arbitrators. On the 12th of August 1928, the plaintiff gave a notice to the arbitrators cancelling his consent to their mediating in his dispute with the defendant, the reason according to him being that he had discovered that they were not disinterested persons but were persons of the defendant, and he then brought an action for dissolution of partnership and accounts valuing his suit at Rs. 5,500. 5,500. One of the defences to the suit put forward by the defendant was that the arbitrators had delivered their award on 12th August, 1928, that is to say, on the same day on which according to the plaintiff, he had served them with notice of cancellation of the agreement to submit to arbitration and that award was binding on the plaintiff. Preliminary issues were framed in the suit as to whether the arbitrators' award was void or binding and the court held that the award was binding and the plaintiffs' suit was consequently dismissed. This decision was upheld in first appeal by the Judicial Commissioner's Court on 16th April 1930. In 1933 the plaintiff applied to the Judicial Commissioner's Court for a review of judgment in that appeal on the ground that he had discovered in May 1933 new and important documentary evidence which proved that the arbitrators were biased in favour of the defendant. The court rejected the review application on 25th January 1935. Then, on 28th April 1936 the plaintiff applied for permission to bring the second suit as a pauper, but permission was refused and his application to the High Court for revision of the order met with similar fate. Accordingly, he paid the necessary court fee and the suit went to trial. In this suit he alleged that it came to his knowledge for the first time on 8th April, 1936 that the arbitrators had never given an award and that his previous suit had been founded on erroneous assumption that there had been an award, that the arbitrators fraudulently conspired with the defendant to make the plaintiff believe that they had given an award, when actually they had not done so, and therefore, he wanted a bare declaration that no award was given. Such a declaration carries with it as a consequence a conclusion that the partnership between defendant and the plaintiff is still continuing. The second suit is valued for purposes of jurisdiction at 2 lakhs of rupees, but as it had been framed as a suit for a declaration only, the plaintiff had paid court fee of not more than Rs. 15. The second suit is valued for purposes of jurisdiction at 2 lakhs of rupees, but as it had been framed as a suit for a declaration only, the plaintiff had paid court fee of not more than Rs. 15. After the parties had submitted their pleadings, the plaintiff applied to amend his plaint by adding to the relief which he claimed an alternative prayer that if the court should hold that the arbitrators had given an award, then the defendant should be ordered to deliver it up to the plaintiff. On the pleadings the following issues were framed: (1) whether the decision in Civil Suit No. 83 of 1928 operated as res judicata. (2) whether the suit for a mere declaration without consequential relief was maintainable. (3) whether the plaintiff should be allowed to amend his plaint as desired. 6. On issue No. 1 the lower court found that the suit was not barred by res judicata but that the plaintiff is estopped from reopening the case. On issue No. 2 it held that a suit for a bare declaration is not maintainable and on issue No. 3 that the amendment cannot be allowed because it is inconsistent with the first relief claimed. The plaintiff's suit was therefore, dismissed. The main point in the appeal before this court was whether the suit was barred by either by the doctrines of res judicata or estoppel. The new fact which according to the plaintiff, had come to his knowledge on 8th April 1936 was that no award was in fact, given by the arbitrators. If in fact the arbitrators had given an award, then it was useless for the plaintiff to say that he had since discovered, that no award was given. As to the existence of an award, it was admitted by the plainitff in the previous suit. It was never suggested in that suit that there was any doubt as to the existence of the award. The reason by according to the lower court, in that case the doctrine of res judicata did not apply was that the previous suit was valued at Rs. 5,500 while the second suit was valued at Rs. 2,00,000 and therefore that the court which tried the first suit was by reason of its pecuniary jurisdiction incompetent to try the second suit and hence section 11 C.P.C. is no bar to the second suit. 5,500 while the second suit was valued at Rs. 2,00,000 and therefore that the court which tried the first suit was by reason of its pecuniary jurisdiction incompetent to try the second suit and hence section 11 C.P.C. is no bar to the second suit. The respondent said that this is not correct and the Explanation IV to section 11 applied because the plaintiff ought to have taken that ground about the non-existence of the award in the previous suit. The plaintiff's answer to this was that it was impossible for him to have taken a point when he was unaware that the award was not in existence and that Explanation IV only applied where a person has the necessary knowledge, to take the plea. In Srimut Rajah Odaya Taver vs. Katama Matchiar, II M.I.A. 50 quoted in the above Nagpur case, it was observed as follows: “When a plaintiff claims an estate, and the defendant being in possession, resists that claim, he is bound to resist it upon all the grounds that it is possible for him, according to his knowledge, then to bring forward.” 7. Unlike in the Nagpur case cited above, in the case on hand, the plaintiffs must be pinned with the knowledge of all particulars regarding the gift deed, as dealt with by me already, and they are, therefore, hit by Explanation IV to section 11 C.P.C. In Dhani Ram vs. Rattan Das, AIR 1961 Punjab 463 where the plaintiffs who claimed the ownership of certain lands on the ground of inheritance, on dismissal of the suit, filed another suit claiming the ownership on the ground of their possessory title, it was held that the right claimed in both the suits was the same although on different grounds and as such the second suit by the plaintiff was barred under the principle of res judicata. The contention of the appellant is that the plaintiffs were litigating on the two occasions on different title; the right claimed on the first occasion was not the same as the second occasion and therefore, there is no bar of res judicata. The contention of the appellant is that the plaintiffs were litigating on the two occasions on different title; the right claimed on the first occasion was not the same as the second occasion and therefore, there is no bar of res judicata. Learned counsel would clarify the position by saying that on the first occasion the right claimed was as the children of Raman Mathevan claiming their due share in the properties' that Raman Mathevan had inherited from his father, while on the second occasion they claimed their due share as members of the sub-tarwad of Kochupennu Pitcha who had inherited the property by virtue of the gift deed. I do not think, the position contended for, is correct or acceptable on the facts of the case. In fact, on both the occasions the plaintiffs were claiming as heirs of Raman Mathevan, even though the grounds on which the claim was based, were different and the extent of the share claimed, was also different. A Full Bench of the Lahore High Court in Mt. Sardaran vs. Shiv Lal, AIR 1944 Lahore 282, observed: “Where the right claimed in both suits is the same the subsequent suit will 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 first suit.” 8. This was upheld by the Supreme Court in Sundarbai vs. Devaji Shankar, AIR 1954 SC 82 . Clarifying the position further, the Supreme Court observed on the facts of that case that though the plaintiff was litigating under the same title, the bar of res judicata would not apply as the previous decree was passed in terms of the compromise, but that the underlying principle of estoppel was applicable and the plaintiff was estopped from contending that G had the right to adopt him, even if the matter had passed from the stage of mere representation into an agreement. Counsel cited Hazari Singh vs. Jhunna Singh, AIR 1931 Allahabad 21, wherein the plaintiff claimed title through one person and the court found title in another and dismissed the claim, the subsequent suit by the same plaintiff claiming through the other person was not found to be barred by res judicata. But in the present case, there was no need for the court or anybody telling the plaintiffs that title was with Kochupennu Pitcha. But in the present case, there was no need for the court or anybody telling the plaintiffs that title was with Kochupennu Pitcha. They were already aware of it. But in spite of such knowledge, they brought the suit as an experimental measure to their own prejudice, and against their own interest. It was a suicidal and foolish measure and it is no wonder that they had been non-suited on both occasions; on the first occasion on the finding that they had no cause of action and on the second occasion that their suit is barred by constructive res judicata. Learned counsel then put forward the plea that the plaintiff was not bound to take up a plea based on the gift deed as it was destructive of the claim on which the very suit was based. This would be true if the plaintiffs in fact, had any claim or cause of action when the first suit was brought by them. As a matter of fact, they had no claim or title traceable from Raman Mathevan and they were perfectly aware of it. As observed by the Travancore-Cochin High Court in Govindan Nair vs. Narayanan Nair, AIR 1956 TC 266: “If the position taken in the subsequent suit is destructive of the one taken in the earlier suit, a contention may be raised that though the plaintiff might have included it in the earlier one it cannot be said that he ought to have done so to attract the application of Explanation IV of section 11. But where the case set up in the subsequent suit could have co-existed with the case set up in the earlier suit as an alternative case and the one would not have destroyed the other and the evidence to establish the one would have been the evidence to establish the other as well, Explanation IV to section 11 would apply and bar the subsequent claim.” 9. This latter observation applies with equal force in the case on hand also. Here also when the first suit was filed, the alternative claim based on the gift deed, was co-existent and the evidence required for the proof of that claim was the same as the evidence required to establish the claim in the second case. This latter observation applies with equal force in the case on hand also. Here also when the first suit was filed, the alternative claim based on the gift deed, was co-existent and the evidence required for the proof of that claim was the same as the evidence required to establish the claim in the second case. The plaintiffs' failure to raise it as an alternative claim in the subsequent suit has proved fatal to the subsequent action, and the second action therefore, is barred by Explanation IV to section 11 C.P.C. 10. The suit must also fail on the ground of limitation and adverse possession. There is clear evidence in the case to show that the plaintiffs have been kept out of possession for a number of years, very much beyond the statutory period. Kochupennu Pitcha died in 1111 M.E. Succession must be taken to have opened that year following her death. In 1112 O.S. 305 of 1112 was instituted by the Seshakars for cancellation of the gift deed. Raman Mathevan was a defendant in that suit and he died in 1118. Ext. D-12 is the copy of affidavit and application filed in that suit on 14th Edavam 1118 for impleading the legal representatives of Raman Mathevan. But the legal representatives did not come forward. The property all the time, was in the possession of the present defendants 1 to 3, and this fact was admitted by the 1st plaintiff's husband who was examined as P.W. 3 in O.S. 383 of 1960. He stated in the course of his evidence: OTHERS LANGUAGE Ext. D-4 is a partition deed effected by defendants 1 to 3 on 19th Chingam 1123 partitioning the property as between them, and Exts. D-26 and D-30 evidence their dealings with the property thereafter asserting their absolute right. In O.S. 383 of 1960 a definite issue was raised as to whether the plaintiffs had lost their right over the property by-adverse possession and it was held by the court that the right, if any, they had was lost by ouster, adverse possession and limitation. The fact that the plaintiffs had no possession had been admitted in paragraph 6 of the plaint in that suit which was marked Ext. D-6 in the present suit. The fact that the plaintiffs had no possession had been admitted in paragraph 6 of the plaint in that suit which was marked Ext. D-6 in the present suit. Learned counsel for the appellants would wriggle out from the effect of this finding by the argument that since that suit had been dismissed upholding the plea of res judicata no other finding entered in the suit would operate against the plaintiffs and it is open to him now to contest the suit on those points. This is not correct. “it is well settled” observed the Supreme Court in Vithal Teshwant vs. Shikandarkhan, AIR 1963 SC 385 : “that if the final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point—each of which by itself would be sufficient for the ultimate decision— the decision on each of these points operates as res judicata between the parties.” 11. The final decision in O.S. 383 of 1960 was based on the finding of adverse possession and limitation also and as such that finding would also operate as res judicata between the parties in the subsequent suit. The suit must, therefore, fail as it is barred by reason of the finding of adverse possession and limitation in the prior suit between the parties. 12. The present suit is brought for partition under section 18 of the Ezhava Act. The necessary parties admittedly, have not been impleaded in the suit. The children of defendants 1 and 2 viz. Kesavan and Parameswaran are also entitled to shares in the event of the plaintiffs succeeding in the suit. They were also therefore, necessary parties, but were not impleaded in the suit. The suit is therefore, bad for non-joinder of parties. This defect will not be cured by impleading them in this court in Second Appeal. The suit must, therefore, fail on all the points. 13. In the result, in confirmation of the decrees of the Courts below the Second Appeal is dismissed, but without costs in this court.