Judgment : 1. This second appeal is directed against the judgment and decree dated 3rd September 1994 passed by Additional District Judge, Gondia in Regular Civil Appeal No.74/1994 whereby judgment and decree dated 31/7/1992 passed by the trial court in Regular Civil Suit no.34/1971 dismissing the suit was confirmed. 2. One Tikaram died leaving behind him three sons who are original plaintiffs 1 to 3 – appellants 1 to 3 herein and a widow who is original plaintiff no.4 – appellant no.4 herein. Plaintiffs pleaded that the land Khasra No.189, area 8.22 acres, situated at village Gondia (Buzruk.) was their ancestral property. During his life time Tikaram was addicted to vices. On 21/1/1959 Tikaram sold the land area 3.20 aces out of Kh. No. 189 to the defendants by executing sale deed. Plaintiffs filed Regular Civil Suit no.131/1963 against the defendants for setting aside the said sale deed. The judgment and decree passed in that suit was challenged in an appeal and now it has reached to finality. Again Tikaram had sold remaining portion of 4.82 acres of land out of same khasra number to the same defendants vide registered sale deed dated 11/2/1959. To challenge second alienation plaintiffs filed second suit being Regular Civil Suit No.34/1971. The defendants filed written statement at Exh.16 and resisted the suit inter alia on the grounds that the plaintiffs omitted to include the claim in respect of land covered under second sale deed when they had filed first suit being R.C.S. No.131/1963 and as such second suit is barred under Order 2 Rule 2 of the Civil Procedure Code. The learned trial court, mainly, relying upon the decision in case of Mohammad Khalil Khan V/s. Mehbub Ali Mian reported in AIR (36) 1949 Privy Council 78 held that the suit is barred under Order 2 Rule 2 and also on the principle of constructive res judicata as explained under section 11 Explanation IV of the Code. 3. The first appellate court formulated following point for its determination: “Whether the suit is barred by Constructive res judicata and as per Order 2, Rule 2 of the Code?” 4. After considering the rival submissions, the first appellate court concluded thus: “Hence, I conclude that the cause of action for both these suits was identical. 3. The first appellate court formulated following point for its determination: “Whether the suit is barred by Constructive res judicata and as per Order 2, Rule 2 of the Code?” 4. After considering the rival submissions, the first appellate court concluded thus: “Hence, I conclude that the cause of action for both these suits was identical. On the same facts, the plaintiffs are claiming different reliefs in both the suits and such relief cannot be claimed by them in view of Order 2 Rule 2 especially explanation and illustration given below Order 2 Rule 2. The explanation says that, the successive claims arising under the obligation shall be deemed to constitute but one cause of action. In my opinion the word “And” appearing in this explanation to Order 2 Rule 2 should be read as disjunctive and therefore, cancellation of first sale-deed and the second sale-deed are two successive claims arising under the same obligation namely (want of legal necessity, want of benefit of estate, and joint family nature of the property) which create obligation on the defendants not to purchase the land from Tikaram and hence, it forms identical cause of action from both suits and therefore, the later suit is barred under Order 2 Rule 2 of Civil Procedure Code.” 5. This Court while admitting the appeal formulated following substantial questions of law: “(1) Whether in the facts and circumstances of the case, the courts below were justified in holding that the two sale deeds dated 22.1.59 and 11.2.59 gave rise to the single cause of action and non-inclusion of challenge of sale deed dated 11.2.59 in Reg. C.S. No.131 of 63 amounted to relinquishment of part of that claim? (2) Whether both the courts below were right in holding that the second suit challenging second sale deed was barred by the principles of constructive res judicata?” 6. Before I, proceed to consider the rival submissions advanced at the bar, for better appreciation of the facts of the case prayer clauses in both the suits are reproduced below: 7. R.C.S. No.131/1963 “(A) A decree declaring that the sale deed Dt.21-1-1959 is not binding on the interest of plaintiff no.4 and for delivery of possession to her or in the alternative a decree for setting aside the sale deed Dt.21-1-1959 and for delivery of possession to the plaintiffs. R.C.S. No.131/1963 “(A) A decree declaring that the sale deed Dt.21-1-1959 is not binding on the interest of plaintiff no.4 and for delivery of possession to her or in the alternative a decree for setting aside the sale deed Dt.21-1-1959 and for delivery of possession to the plaintiffs. .....” R.C.S.No.34/1971(a) a decree for setting aside the sale deed dated 11-2-59 and for possession of the suit land and, (b) a decree directing an enquiry as to the mesne profits from the institution of the suit until delivery of possession to the plaintiffs together with interest thereon and, .....” 8. Mr. Borkar, the learned counsel appearing for the appellants, contended that both the Courts below adopted wrong approach while holding that suit is barred under Order 2 Rule 2 and under section 11 Explanation IV of the Code. He submits that the order 2 Rule 2 precludes the party from splitting the claims and splitting the remedies but it does not preclude a second suit based on the distinct cause of action. According to him, provisions of Rule 2 being of penal nature and divesting in effect had to be construed strictly. It is a highly technical plea which tends to divide and defeat justice and deprive a party of its legitimate right. It is, therefore, necessary for the party raising the plea of such a bar to demonstrate that earlier and subsequent suit are based on same cause of action or there was identity of cause of action. He relied upon decision in case of Govind V/s. Jankibai and another reported in A.I.R. 1930 Nagpur 3. In that case a reversioner had filed suit for possession of one property and another suit for possession of other property. It was held that the cause of action was the sale and the sales being different the causes of action are also different. The next decision relied upon is in case of Parashram Ragho Kunbi V/s. Sadasheo Namdeo Shimpi reported in A.I.R. 1936 268 wherein it was held that the plaintiff is not obliged to put forward in one suit other claim which may have against the defendant as the causes of action in such cases may be different but he must include whole claim based on a particular cause of action. To buttress his point learned counsel relied upon the decision in case of AlkaGupta V/s. Narender Kumar Gupta reported in (2010) 10 S.C.C. 141 . 9. Repelling the submissions advanced on behalf of the appellants, Mr. Mundra, the learned counsel for the respondents, laid emphasis on Rule 2 (3) of Order 2. and contended that the cause of action to challenge the alienation of the part of the suit land under second sale deed which was executed just after 20 days of the first sale deed had already been arisen when first suit was filed; omission on the part of the plaintiffs to claim relief in respect of second sale deed squarely attracts the bar of Order 2 Rule 2. According to him, merely because there were two sale deeds that did not give rise to two causes of action. This is for the reasons that the cause of action in both the suits are identical, nature and character of relief is also same and the evidence necessary to establish the case of the plaintiffs is also the same. He relied upon the decision in case of Mohammad Khalil Khan V/s. Mehbub Ali Mian (supra). The facts of that case in brief were : One Rani Barkatunnissa died leaving properties at various places. First suit was filed for possession in respect of all properties except situated at Shahjahanpur and the second suit was filed in respect of Shahjahanpur’s property. Before filing both the suits Rani Barkatunnissa had died. It was observed by Their Lordships that the causes of action for filing both the suits accrued when Rani Barkatunnissa died and laid down the following principles: “The correct test in cases falling under O.2, R.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. 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. If the evidence to support the two claims is different, then the causes of action are also different. The causes of action in the two suits may be considered to be the same if in substance they are identical. If the evidence to support the two claims is different, then the causes of action are also different. The causes of action in the two suits may be considered to be the same if in substance they are identical. 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. Where the facts which would entitle the plaintiffs, in their new suit to recover property Y, to establish their title are substantially the same as those alleged in their former suit to recover property X, the causes of action in the two suits are identical and the plaintiffs are barred by reason of O.2, R.2 from maintaining the new suit.” 10. Next decision relied upon is in case of Dwarkadas Nathmal V/s. Vimal alias Yamuna wife of Rajeshwar and others reported in AIR 1964 Bombay 42 wherein it was held that the causes of action in the two suits must be the same if in substance they are identical. In that case the first suit was filed for recovery of mesne profits for one year. The second suit was filed for recovery of mesne profits of subsequent years. It was held that second suit for recovery of mesne profits of subsequent years is barred. In Kunjan Nair Sivaraman Nair V/s. Narayanan Nair and others reported in AIR 2004 SC 1761 two suits came to be filed. In an earlier suit the decree for declaration of right and title to the suit was sought along with relief of injunction. The prayer for injunction was rejected as plaintiff was not found in possession of the suit. Plaintiff filed second suit for recovery of possession. Their Lordships held that second suit was not barred as causes of action in both suits were not the same. In case of Shankar Sitaram Sontakke and another V/s. Balkrishna Sitaram Sontakke and others reported in AIR 1954 SC 352 the question of applicability of Order 2 Rule of the Code was cropped up under the following facts : There was a joint family consisting of six brothers. They were in-charge of different businesses. Then they went for partition suit which was compromised. They were in-charge of different businesses. Then they went for partition suit which was compromised. Confining relief to the share of the profits and assets of other business (motor business) second suit was filed. In that premise, it was held that first suit was the desire of the plaintiff to separate from his brothers and divide the joint family property. The first suit embraced entire property without any reservation and it was compromised. Therefore, his subsequent suit to enforce part of the claim was found on the same cause of action which deliberately was relinquished. 11. In Budhu V/s. Nahru and others reported in 1956 HIM. PRA. 50 (AIR 43 C 24 Nov.) the plaintiff had omitted to claim possession of the entire area which defendants were allegedly in occupation but filed suit for part of the area. Subsequently the suit for remaining part was filed. It was held that there was only one cause of action because defendants were in possession over the entire area. 12. The legal position that emerges may be stated thus: The plaintiff is to include whole of his claim in respect of a cause of action. It, however, allows him to give up, abandon any part of his claim. When he omits to sue or relinquishes any part of his claim, he is not allowed afterwards to sue for the portion so omitted. Where the plaintiff is entitled to more than one relief in respect of same cause of action and omits without the leave of the Court any relief, he cannot thereafter sue for the relief so omitted. All successive claims arising under the same obligation shall be deemed to constitute one cause of action. The provision is based on the principle that the defendants should not be vexed twice for one and the same cause by allowing the plaintiff to split up the claims and to split up the remedies. Unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based, there would be no scope for application of Order 2 Rule 2. Even when several causes of action arise from one transaction plaintiff is not obliged to sue for all of them in one suit. Even when several causes of action arise from one transaction plaintiff is not obliged to sue for all of them in one suit. What the rule lays down is that if there is one entire cause of action, the plaintiff cannot split up the same into parts so as to bring separate suits in respect of those parts. When the subsequent suit is based on cause of action different from that in first suit, the subsequent suit is not barred. 13. In Deva Ram and another V/s. Ishwar Chand and another reported in (1995) 6 SCC 733 earlier suit was for recovery of sale price of land which was dismissed on the ground that the document relied upon was not sale deed but an agreement for sale. Subsequent suit for recovery of possession on the basis of title was held not barred as causes of action in the two suits were not identical. According to Their Lordships Order 2 Rule 2 requires unity of claims based on the same cause of action in suit but it does not contemplate unity of distinct and separate causes of action. 14. Now, adverting to the facts of the present case; the alienation of 3.20 acres made by Tikaram by executing registered sale deed dated 21/1/1959 was challenged. On 11/2/1959 Tikaram repeated the similar act by executing another sale deed for the remaining piece of land i.e.4.82 acres. Certainly, plaintiffs could have challenged both these alienations which is permissible under Order 2 Rule 3. It specifically provides that the plaintiff or plaintiffs can unite in same suit other causes of action against the same defendant or defendants jointly in which the plaintiff or plaintiffs are jointly interested. By no means omission to unite different causes of action can be interpreted as splitting up the claims or splitting up the remedies arising out of the same cause of action. The crux of the matter is whether two alienations of separate area of the lands on different dates although in favour of the same parties would give rise to only one cause of action and cast a duty on a party to challenge the said alienations in one suit. Thus, question that arises is what is the “cause of action”. 15. Thus, question that arises is what is the “cause of action”. 15. In Muhammad Hafiz and another V/s. Mirza Muhammad Zakariya and others reported in A.I.R. 1922 Privy Council 23 Their Lordships held that : “the cause of action which gives occasion to, and forms the foundation of, the suit, and if that cause enables a man to seek for larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.” In Kunjan Nair Sivaraman Nair V/s. Narayanan Nair and others (supra) it is held that : “.....One great criterion is, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit whether the same evidence will maintain both actions.” 16. When first alienation of the land area 3.20 acres on 21/1/1959 was made by executing a registered sale deed cause of action arose to the plaintiffs to challenge the same. Ignoring the second alienation, they filed the suit. Can it be said that by splitting the claims or remedies they sought declaration and possession of the suit land area 3.20 of sale deed dated 21/1/1959. To put it differently, whether by restricting suit to first alienation, the plaintiffs split up the claims or split up the remedies? This is to be answered in negative. The execution of the second sale deed for different area of the land i.e. 4.82 acres on 11/2/1959 although in favour of the same party is a distinct and separate cause of action. Even it cannot be said to be two causes of action arising out of the same transaction. The expressions “in respect of the cause of action” occurring under Rule 2(1), “in respect of” in Rule 2(2) and “in respect of the same cause of action” occurring under Rule 2(3) amply connote that what is barred is splitting up the claims and splitting up the remedies arising out of the same cause of action. Two sets of bundle of facts arising out of two different transactions and between similar parties would give rise to distinct causes of action and not one. This can be well explained by quoting an illustration to Order 2 which runs thus: “A lets a house to B at a yearly rent of Rs.1,200. Two sets of bundle of facts arising out of two different transactions and between similar parties would give rise to distinct causes of action and not one. This can be well explained by quoting an illustration to Order 2 which runs thus: “A lets a house to B at a yearly rent of Rs.1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.” Let us assume that A owns two houses. Under different agreement he lets them to B. B had fallen in arrears of rent in respect of both the houses. When A filed suit for arrears of rent in respect of one house, the rent had also became due in respect of second house. Could it be said that omission on the part of A to file suit for recovery of rent in respect of second house would preclude A from filing subsequent suit for recovery of rent in respect of second house. Merely because defendants are the same or relief of declaration in respect two similar nature of transactions have been sought by filing two separate suits itself would not bar the second suit. It is the choice of the plaintiffs either to unite or not to unite both causes of action in one suit. In Alka Gupta V/s. Narender Kumar Gupta (supra) Their Lordships held that bar of Order 2 Rule 2 is not applicable where second suit is based on a different and distinct cause of action. 17. The object that ‘the defendants should not be vexed twice for the same cause of action’ is not defeated for the simple reason that they are the defendants who entered into two transactions and invited two distinct actions. It is also not the case that while seeking relief of declaration that alienation was not made out of legal necessity, the plaintiffs also sought relief of partition. It is well settled that co-owner, who challenges the alienation made by other co-owner, has right to ask for possession of the property. It is for the alinee to sue for general partition and claim relief that the property alienated be put to the share of co-sharer alinee. It is well settled that co-owner, who challenges the alienation made by other co-owner, has right to ask for possession of the property. It is for the alinee to sue for general partition and claim relief that the property alienated be put to the share of co-sharer alinee. Since there were two distinct alienations for distinct areas of lands filing of two separate suits questioning such alienations cannot attract bar of Order 2 Rule 2. 18. Now, I shall deal with the second substantial question of law : The doctrine of res judicata is conceived in larger public interest which requires that all litigations must, sooner than latter come to an end. Litigation which has no end or finality defeats very object of justice. Since the bar of Order 2 Rule 2 has also been pressed into service, it is necessary to point out distinction i.e. how doctrine of res judicata differs from bar under Order 2 Rule 2. The former enjoins duty on the plaintiff or defendant to bring forward all the grounds of attack in respect of his claim whereas later requires plaintiff to claim all reliefs flowing from the same cause of action. The principle of res judicata governs both the parties, plaintiff as well as the defendant, however, Order 2 Rule 2 only applies to the plaintiff and bars the suit (Relied on Alka Gupta V/s. Narender Kumar Gupta {supra}). Constructive res judicata, principle behind which is that if a party had an opportunity to raise a matter in a suit, it would be considered to have been raised and decided. The underlined object is to cut short litigation between the parties so that a person may not be vexed again with regard to the same matter. It would be an abuse of the process of Court to allow a new proceeding to be started in respect of the same issue. The rationality of constructive res judicata is that the party should raise all his available pleas at the first instance and raising them at each successive stage is prohibited. 19. The learned trial court upholding the contention that suit is barred on the principle of constructive res judicata observed thus: “.....Here, in this case, grounds of defence and attack of plaintiffs in previous suit of 1963 and present suit of 1971 are the same. Pleadings is also the same. Parties are also the same. 19. The learned trial court upholding the contention that suit is barred on the principle of constructive res judicata observed thus: “.....Here, in this case, grounds of defence and attack of plaintiffs in previous suit of 1963 and present suit of 1971 are the same. Pleadings is also the same. Parties are also the same. Hence, the suit of 1963 which was finally decided shall be deemed to have be a matter directly and substantially in issue in this suit of 1971. Hence, as per this provision in the C.P.C. the present suit is also barred by the principle of res judicata. 23. The learned advocate of the defendants drew my attention to the reported case of 1978 All. Page 30 between Babu Rajnarayan Singh Vs. Ganesh Bind and others. The applicability of res-judicata is discussed in para (B) of this case. It is held in paras 16 and 18 by his Lordship as under.- “If a transaction of sale has been entered into on behalf of a joint Hindu family selling the joint family property then in case the managing members of the joint family as the vendors file a suit affirming the said transaction and to such a suit the minor members of the joint family are impleaded through their guardians, then it is open to the latter to question the transaction of sale. If they fail to do so then, in my opinion, they cannot be allowed to file a subsequent suit seeking to repudiate the sale transaction. The subsequent suit challenging the aforesaid sale must be held to be barred by the principle of res-judicata because the minor members are bound by the verdict of the former suit.” Here, in this case, all the plaintiffs were joint in the former suit for setting one sale-deed aside and again filed a subsequent suit on the basis of another sale-deed with the same averments. Hence, the principle of res-judicata is now applicable to the subsequent suit. 24. It is also observed in reported case of A.I.R. 1985 S.C. page 1096 between Jaswantsingh Vs. Hence, the principle of res-judicata is now applicable to the subsequent suit. 24. It is also observed in reported case of A.I.R. 1985 S.C. page 1096 between Jaswantsingh Vs. Custodian of Evacuee Property, New Delhi by their Lordship that in order that a defence of res judicata may succeed it is necessary to show that not only the cause of action was the same but also that the plaintiff had an opportunity of getting the relief which he is now seeking in the former proceedings. The test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings. These observations are perfectly applicable to the facts of this case. The present plaintiffs of former suit in this case had an opportunity for getting relief which they are now seeking in this suit. I have already held above that cause of action of both the suits was the same which was the foundation of the former suit. 25. The learned advocate of the defendant drew my attention to the reported case of A.I.R. 1931 Bombay page 114 between Anant Vs. Mahabaleshwar Bhat. It is held in this case where plaintiff being entitled to make a claim does not make it, he is barred from making same claim in the subsequent suit under Order 2 rule 2 C.P.C. Subsequent suit on the ground which might have been made grounds of attack in former suit is barred under Section 11. Here, in this case the ground of attack is the same which were grounds of attack in the former suit regarding legal necessity, deceased Tikaram was addicted to bad habit and drinks. As notice was issued to the defendants. They purchased suit property and the suit property was purchased considerably for low price. Hence, as per above rulings and considering the evidence and facts of this case and former suit, this subsequent suit filed is barred under Section 11 explanation 4 of C.P.C.” The learned trial court relied upon the decision in case of Babu Rajnarain Singh and another Vs. Ganesh Bind and others reported in AIR 1978 Allahabad 30. Hence, as per above rulings and considering the evidence and facts of this case and former suit, this subsequent suit filed is barred under Section 11 explanation 4 of C.P.C.” The learned trial court relied upon the decision in case of Babu Rajnarain Singh and another Vs. Ganesh Bind and others reported in AIR 1978 Allahabad 30. It was the case of managing members of the joint family as the vendors filing suit affirming the transaction of sale of the joint family property and the minor members were impleded in that suit through the guardians. In that premise, it was held that subsequent suit challenging the sale must be held to be barred by the principles of res judicata as minor members were bound by the verdict of the former suit. It is, therefore, obvious that this decision cannot be applied to the facts of the present case. Next decision relied upon is the decision in case of Anant Subrao Nadgir Vs. Mahableshwarbhat Gurunath Bhat Shindgi reported in AIR 1931 Bombay 114. The facts of the case were : the plaintiff brought suit for recovery of possession of the property of his adoptive father and setting aside alienation of the same. A brought suit against B for recovery of properties being Survey Nos.88 and 89. As against Survey No.51, possession was claimed from S although said property was alienated by A and S to B by deed of gift. Suit between A and S was compromised, according to which A was to recover possession of the suit property from S. A separate decree was passed against other defendants. In execution of the decree against S, A wanted to take possession of Survey No.51 but was obstructed by B. A's application under Order 21 Rule 97 was dismissed. A then brought suit under Order 21 Rule 103 against B for possession of Survey No.51. It was held that A had suppressed the fact that B was in possession of Survey No.51. It was further held that A and B were parties to the first suit and the property in second suit was one of the properties in the first suit although B had not been sued in respect of that property. It is thus obvious that at one point of time A and S had alienated Survey No.51 to B by deed of gift. It is thus obvious that at one point of time A and S had alienated Survey No.51 to B by deed of gift. Despite property being in possession of B suit was compromised between A and S and on the strength of that decree A wanted to recover possession of Survey No.51 which was in possession of B. This being the factual matrix of that case, the learned trial court was wrong in applying principle of that case to the facts and circumstances of the instant case. The learned trial court further placed reliance upon the decision in case of Jaswant Singh and another V/s. Custodian of Evacuee Property, New Delhi reported in AIR 1985 S.C.1096 which was the case relating to recovery of evacuee property in execution proceeding. There was an ordinance 27 of 1949 which conferred new rights on the custodian. Their Lordships held that “In order that a defence of res judicata may succeed it is necessary to show that not only the cause of action was the same but also that the plaintiff had an opportunity of getting the relief which he is now seeking in the former proceedings. The test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings.” It is not understandable as to how learned trial court was of the view that ratio laid down in the case supra supports the view which it has taken in the facts and circumstances of the case. 20. However, the discussion about bar of suit on the principle of constructive res judicata does not find place in the judgment of the Appellate Court. The learned first appellate court concluded the judgment by answering the point that the suit was barred under Order 2 Rule 2. 21. The defendants by entering into two sale transactions at different point of time invited two separate actions. Certainly, both these causes of action could have been joined together and in that event there would have been no mis-joinder of the causes of action, however, this does not mean that the failure on the part of the plaintiffs to join both these distinct causes of action together invited bar of Order 2 Rule 2 or Section 11 Explanation IV. Justice C.K. Thakkar in his commentary on Civil Procedure Code (2000 Edition) (Volume 1) at pages 160 and 167 explained the true import of Section 11 Explanation IV by giving following illustrations: (1) A files a suit against B for declaration that he is entitled to certain lands as heir of C. The suit is dismissed. The subsequent suit, claiming the same property on the ground of adverse possession, is barred by constructive res judicata. (2) A files a suit against B to recover money on a pronote. B contends that the promissory note was obtained from him by undue influence. The objection is overruled and suit is decreed. B cannot challenge the promissory note on the ground of coercion or fraud in subsequent suit, inasmuch as he ought to have taken that defence in the former suit. Assuming that there were two pro-notes giving simultaneous causes of action to the plaintiff to file suit in respect of both the pro-notes but the plaintiff filed suit only in respect of one pro-note. First suit is either dismissed or decreed. Can it be said that the second suit filed by him in respect of the other pro-note is barred only on the ground that the defendants were the same and when the first suit was filed the cause of action to file the second suit had already been arisen. (3) A sues B to recover damages for a breach of contract and obtains a decree in his favour. B cannot afterwards sue A for recession of contract on the ground that it did not fully represent the agreement between the parties, since that ground ought to have been taken by him in the previous suit as a ground of defence.” Assuming that there were two contracts between A and B and both were breached. A chose to file suit in respect of one contract. Subsequently, he files the second suit alleging breach of second contract. Can it be said that the second suit is barred only for the reasons that the parties were the same, both contracts were similar in nature and cause of action in respect of second suit had already been arisen when the first suit was filed and hence second suit is barred. Can it be said that the second suit is barred only for the reasons that the parties were the same, both contracts were similar in nature and cause of action in respect of second suit had already been arisen when the first suit was filed and hence second suit is barred. Conclusion deducible from the above is if properties are distinct, if pro-notes are different or when the dispute arises out of breach of different contracts, although parties are same, the second suit for similar property or for other pro-note or for breach of other similar nature of contract cannot be held to be barred. Neither Order 2 Rule 2 nor Section 11 Explanation IV cast duty on the plaintiff to sue in one suit for various causes of action. What is essential is that the party is bound to put forward his whole case as plaintiff or defendant in respect of the same subject matter of the suit. If the plaintiff omits to raise certain ground in respect of his claim, he will not subsequently be permitted to raise such ground in respect of his claim. If the subject matters are separate and distinct, the second suit for such distinct subject matter would not attract bar of Section 11 Explanation IV. 22. There may be situation where the incidental issues like nature of ownership of the property i.e. whether it was joint family property or self-acquired property of Tikaram may arise in both suits. In such an event, the findings recorded on such incidental issues may operate as res judicata in the subsequent suit but to say that the entire suit filed subsequently is barred either under Order 2 Rule 2 or under Section 11 Explanation IV will be de hors the legal position. In that view of the matter, I have no hesitation to answer both the points in favour of the plaintiffs – appellants herein. 23. Before concluding, it is necessary to clarify that although the trial court answered all the issues, first appellate court formulated only single point for its determination on the touchstone of Order 2 Rule 2 and constructive res judicata. It is settled principle that first appellate court being the final court of facts has to consider all the evidence on record. Before concluding, it is necessary to clarify that although the trial court answered all the issues, first appellate court formulated only single point for its determination on the touchstone of Order 2 Rule 2 and constructive res judicata. It is settled principle that first appellate court being the final court of facts has to consider all the evidence on record. Order 41 Rule 31 of the Code requires the first appellate court to write a self-content judgment giving reasons for its decision on all the points involved for determination. Therefore, there is no alternative than to remit back the instant appeal to the first appellate court for decision on all the points involved therein except those which have been concluded in this second appeal. Thus, findings recorded by both the courts below on the issues of applicability of Order 2 Rule and Explanation IV to Section 11 of the Code will have to be set aside. 24. The judgment and decree dated 3rd September, 1994 passed by the first appellate court dismissing the Regular Civil Appeal No.74/1992 is set aside. Further, findings recorded by the trial court on the issue of applicability of Order 2 Rule 2 and constructive res judicata are set aside. The matter is remitted back to the first appellate court for decision on merits according to law, in the manner and as stated above. Regular Civil Appeal No.74/1992 shall stand restored to its original number. The Registry shall forthwith transmit the record and proceedings to the first appellate court. On receipt of the same and after giving parties an opportunity of being heard the first appellate court shall formulate points for determination involved in the appeal except which are concluded by this judgment and shall proceed to dispose of the same in accordance with law and within 6 months from the date of receipt of record. The parties are directed to appear before the first appellate court on 12th October, 2012. In the facts and circumstances of the matter, there shall be no order as to costs.