JUDGMENT K.P. Singh, J.- This writ petition arises of a suit filed by the plaintiff-petitioner for declaration of his sirdari right in the disputed land in the alternative for recovery of possession. The claim of the plaintiff was denied by the defendants and they themselves had claimed sirdari right in the disputed land and that they had alleged that the plaintiff's suit was not maintainable because his earlier suit had abated under the provisions of Order 22, Rule 4 of the Civil Procedure Code. 2. The Trial Court through its judgment dated 6-12-66 accepted the claim of the defendants and dismissed the suit but in appeal the suit was decreed as is evident from the judgment of the appellate court dated 20-3-68. In Second Appeal the plaintiff's suit has been dismissed as not maintainable under the provisions of Order 22 Rule 9 of the Civil Procedure Code. Aggrieved by the judgment of the second appellate court the plaintiff-petitioner has approached this Court under Article 226 of the Constitution. 3. The learned counsel for the petitioner has contended before me that the suit giving rise to the present writ petition was a declaratory suit hence there was recurring cause of action and the second appellate court has patently erred in dismissing the suit under the provisions of Order 22 Rule 9 Code of Civil Procedure. He has placed reliance upon the ruling reported in AIR 1948 Patna 244, Dilo Rana and another v. Munshi Kunj Behari Prasad and others and AIR 1955 pepsu 28, Devi Sahai and others v. Nanar and others. 4. The learned counsel for the contesting opposite parties has submitted in reply that the second appellate court has not patently erred in dismissing the plaintiff s suit in view of the rulings reported in AIR 1933 Lahore 752, Raju v. Ram Chand and others and AIR 1937 Madras 101, O.A.O.K.C.T. Chidambaran Chettiar and others v. Swaminathan and others. 5. I have considered the contentions raised on behalf of the parties and have gone through both the plaints filed by the plaintiff petitioner and attached with the supplementary affidavit. The bare reading of the plaints indicate that the plaintiff petitioner had filed suits for declaration of his sirdari right as well as for recovery of possession in the alternative. 5. I have considered the contentions raised on behalf of the parties and have gone through both the plaints filed by the plaintiff petitioner and attached with the supplementary affidavit. The bare reading of the plaints indicate that the plaintiff petitioner had filed suits for declaration of his sirdari right as well as for recovery of possession in the alternative. The real cause of action alleged by the plaintiff in both the suits is the entry of the names of the defendants in the revenue record as trespassers over the disputed land. Paragraph 4 of both the plaints are the same. In the later suit the plaintiff has only stated an additional fact that in the earlier suit the application for setting aside abatement was rejected on 29-11-65 and that thereafter the defendant was making interference in the plaintiff's possession. To my mind the real cause of action of both the suits is the same. Moreover, the plaintiff' suits are not purely declaratory suits but also suits for recovery of possession in the alternative against the defendant opposite parties in the present writ petition. In this view of the matter the rulings relied upon by the learned counsel for the plaintiff-petitioner are in application. No doubt there is recurring cause of action in a partition or declaratory suit but on that analogy. It cannot be said in the present case that the second appellate court has patently erred in applying the provisions of Order 22 Rule 9 of the Civil Procedure Code. The real cause of action in both the suits filed by the plaintiff-petitioner is the entry in favour of defendants as trespassers over the disputed land and the real relief claimed by the plaintiff petitioner is the relief of possession against the defendants in both the suits. The ruling cited by the learned counsel for the contesting opposite parties are not directly applicable to the facts and circumstances involved in the present case, but they support the contention of the learned counsel for the opposite parties that the second appellant court has not patently erred in applying the provision of Order 22 rule 9 of the Civil Procedure Code. 6. 6. At this stage I feel it proper to mention the ruling reported in AIR 1943 All 99 , Sri Thakur Bejai Ragho Niwasji v. Tej Narain Lal, wherein a learned Single Judge of this Court has made the following observation. "If the defendant in the suit which has abated continues to be in possession then of course the plaintiff cannot be allowed to set up his possession in a subsequent suit. But if the plaintiff in the abated suit continue to be in possession in spite of the abatement or even if he subsequently acquires possession he can certainly set up that possession in a subsequent suit... 7. In the present case the real difficulty arises due to the findings recorded by the first appellate court to the following effect :- "The defendant case is not believable. The plaintiff's possession is proved from the records and corroborates by the statements of his witnesses. The name of Rajbansi is recorded in the most important papers the extract of Khatauni 1359F. The result is that the order of the learned lower court is set aside. The appeal is allowed and the plaintiff's suit is decreed." 8. It is note-worthy that the Trial Court had accepted the defendants case and found the defendants in possession over the disputed land and had also recognised the sirdari right of the defendant. Whereas the first appellate court has decreed the plaintiff's suit. In such a circumstance it was required of the second appellate court to have examined the question in greater detail and in the light of the ruling of this Court. Since the second appellate court has not examined the question of applicability of Order 22 Rule 9 of the Civil Procedure Code to the facts and circumstances of the present case in the light of the dictum of law laid down by this Court I think that its judgment needs be quashed and it be asked to re-examine the question in the light of the ruling of this Court taking into consideration the findings recorded by the first appellate court. It would be open to the second appellate court to indicate the effect of the finding recorded by the first appellate court or its legality and correctness under the provisions of law in the judgment hereafter. 9. It would be open to the second appellate court to indicate the effect of the finding recorded by the first appellate court or its legality and correctness under the provisions of law in the judgment hereafter. 9. For the foregoing discussions the writ petition succeeds and the impugned judgment of the second appellate court is hereby quashed and the second appellate court is directed to re-examine the question in the light of the observations made above. Parties are directed to bear their own costs.