Judgment 1. This second appeal has been filed by the first defendant against the concurrent findings of the Trial Court and the First Appellate Court. 2. The 1st respondent is the plaintiff and the appellant is the first defendant / contesting defendant. The suit was filed by the plaintiff for declaration of his title to the suit property and for mandatory injunction to direct the first defendant to remove the encroachment and to restore the fence as it stood before. The case of the plaintiff is that he is the owner of property in S.No118 and S.No.119 is a government Poramboke land used for accessing the well and public burial ground. S.No.118 is situated to the North of S.No.119 and is divided by a fence. The further case of the plaintiff is that though the property in S.No 119 is a government poramboke Road, the same is under the occupation of the first defendant, who encroached a portion of the plaintiff's property in S.No.118 under the guise of occupying S.No 119. The suit was resisted by the first defendant mainly on the ground that the suit is barred by the principle of constructive res judicata under Section 11 of C.P.C as the issue substantially involved in the suit has already been decided in his favour in O.S No.135 of 1997. Though he had also raised the plea of limitation, no issues were framed to decide the same either by the Trial Court or by the First Appellate Court. An advocate commissioner was appointed, who with the help of the surveyor measured the boundary line in S.Nos.118 and 119. Based on the report and evidences, the suit was decreed. The decree of the Trial Court was affirmed by the first appellate court. Aggrieved the first defendant has filed this appeal. 3. The following substantial questions of law were framed by this court at the time of admitting the second appeal. a) Whether the suit is barred by the principle of constructive res judicata ? b) Whether the suit for mandatory injunction filed on 29.01.2001 in respect of the property said to have been encroached on 20.08.1997 is barred under the provisions of the Limitation Act? 4. a) Whether the suit is barred by the principle of constructive res judicata ? b) Whether the suit for mandatory injunction filed on 29.01.2001 in respect of the property said to have been encroached on 20.08.1997 is barred under the provisions of the Limitation Act? 4. The learned counsel appearing for the appellant/first defendant painstakingly contended that both the trial court as well as the first appellate court erred in overlooking the fact that the suit was barred by the principles of constructive res-judicata. The learned counsel contended that the first defendant had earlier filed a suit in O.S No.135 of 1997 against the plaintiff for permanent injunction contending that the first defendant was in occupation of S.No.119, a government poramboke land abutting his property by putting up pucca construction and fence; that S.No.119 is located to the south of S.No.118, the property of the plaintiff; that a fence seperates both the properties and the plaintiff attempted to remove the fence on 24.08.1997 and to protect his rights and interest, the first defendant had filed O.S.No.135 of 1997 for permanent injunction. The fence was shown as ‘AB’ in the earlier plaint. In the present suit, the very same fence is shown as ‘PO’. The suit after the full fledged trial was decreed and the appeal filed by the plaintiff was also dismissed. To overcome the decree, the present suit under the guise of declaration relief has been filed. The learned counsel further contended that though in the present suit, declaration is sought, the real and substantial issue involved is the boundary fence separating S.Nos.118 and 119. In the present suit the plaintiff has projected a picture as if the fence is located well within S.No.118 and that the first defendant has encroached the property on 20.08.1997. The learned counsel further contended that the plaintiff never took a stand in O.S No.135 of 1997 that the first defendant has encroached a portion of the suit property on 20.08.1997. The learned counsel further contended that both the courts failed to consider the objections to the report of the advocate commissioner. The learned counsel also contended that even according to the plaintiff, the cause of action to file the present suit arose on 20.08.1997 and as the suit has been filed only on 29.01.2001, the suit is barred by limitation. The learned counsel further contended that both the courts failed to consider the objections to the report of the advocate commissioner. The learned counsel also contended that even according to the plaintiff, the cause of action to file the present suit arose on 20.08.1997 and as the suit has been filed only on 29.01.2001, the suit is barred by limitation. He placed reliance upon the judgments in 1994(2) SCC 14 (Sulochana Amma v. Narayana Nair), 2005 (4) CTC 20 (Aanaimuthu Thevar (Dead) by LRs. v. Alagammal and others), 2006 (1) CTC 197 (V. Kandasamy v. C. Kandasamy and others), 2010 (10) SCC 141 (Alka Gupta v. Narender Kumar Gupta) and 2014 (6) SCC 424 (Coffee Board v. Ramesh Exports Private Limited) in support of his contentions. 5. Per contra, the learned counsel appearing for the first respondent/plaintiff contended that both the courts below have rightly appreciated the oral as well as documentary evidence to conclude that the subject matter in the present suit and earlier suit are not one and the same and therefore, rightly decreed the suit. The theory of constructive res-judicata cannot be invoked in the present suit as the relief sought is completely different. The learned counsel further contended that the plea of limitation cannot be raised by the first defendant at the appellate stage. Under the above circumstances, the learned counsel sought the dismissal of the appeal. 6. The learned Government Advocate appearing for the second and third respondents/second and third defendants in the suit contended that they are only formal parties and endorsed the arguments of the first respondent/plaintiff and sought the dismissal of the appeal. 7. Heard all the parties and perused the original records. 8. First Substantial question of law: Section 11 of C.P.C reads as follows: 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 same 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. Explanation I: The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation I: The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II: For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III: The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV: 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. Explanation V: Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Explanation VII: The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII: An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res Judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit in which such issue has been subsequently raised. 9. For section 11 of C.P.C. to be applicable, the case must satisfy the following tests. (i) The earlier suit must be between the same parties or must be claiming a right from a party in the earlier suit. (ii) The suit must have been concluded. (iii) The issue in both the suits must be directly and substantially same and must have been decided. (iv) The earlier suit must have been tried by a court having competent jurisdiction. (ii) The suit must have been concluded. (iii) The issue in both the suits must be directly and substantially same and must have been decided. (iv) The earlier suit must have been tried by a court having competent jurisdiction. It is sufficient even if the court had limited jurisdiction to try the suit at that particular point of time. (v) The subject matter must have been alleged by one party in the earlier suit and directly or impliedly denied by the other party in the earlier suit. (vi) Any matter which might and ought to have been raised as a defence in the earlier suit would be deemed to be the matter directly and substantially the issue in the earlier suit. (vii) Any relief claimed in the plaint shall be deemed to be refused if it is not expressly granted. (viii) Once a litigation is raised on a public right or private right in common for others, it will bind all the persons interested. (ix) The defence of res-judicata can be raised even in execution proceedings. 10. From the above, it is clear that the word “substantially” in section 11 of C.P.C. has a significant implication. It comes into operation whenever an issue which directly or indirectly forms part of an earlier suit is raised in a subsequent suit. When the bar is direct, the subsequent suit would be barred by the principle of “Res-Judicata” and when the issue is an integral part of the issue decided in the earlier suit, then the subsequent suit would be barred by the principle of “Constructive Res-judicata”. 11. Let us now examine the applicability of the above principles to the facts of the case before this court. The suit in O.S.No.135 of 2007 was filed by the first defendant against the very same plaintiff contending that the plaintiff is attempting to remove the fence that is located at the northern boundary of S.No.119, a government poramboke land in the occupation of the first defendant and separating the land of the plaintiff in S.No.118. The fence has been shown as ‘AB’ in the plaint. In para 6 of the plaint in O.S.No.135 of 1997, the first defendant has specifically pleaded that the plaintiff has no right whatsoever over the property located to the south of the fence shown as ‘AB’. The fence has been shown as ‘AB’ in the plaint. In para 6 of the plaint in O.S.No.135 of 1997, the first defendant has specifically pleaded that the plaintiff has no right whatsoever over the property located to the south of the fence shown as ‘AB’. The cause of action for the said suit was that on 24.08.1997, the plaintiff attempted to remove the fence and encroach upon the lands in S.No.119. In defence, to the said allegations, the plaintiff has denied the above allegations as false. The plaintiff, in his written statement in O.S.No.135 of 1997, has not stated anything about the incidents that took place on 20.08.1997. Upon perusal of the pleadings in the earlier suit and the judgment, it is clear that the both the parties have not disputed the title of the rival party over the lands purchased by them. The subject matter of the earlier suit is S.No.119, in which the fence was alleged and held to be located. Therefore, it is clear that the location of fence was integral part of the subject matter of the suit. The suit was only for permanent injunction. It is settled law that to seek an injunction, the party seeking such relief must have a legal right. It is also settled law that while deciding a suit for injunction, the court cannot ordinarily decide the title of the parties but can determine the right of the party to seek such relief. The Trial Court has given a specific finding that the first defendant has proved that he has been in possession and enjoyment of the land in S.No.119. As rightly held therein, the plaintiff here had also not disputed the ownership of the government over S.No.119. The First Appeal filed by the plaintiff was also dismissed. Therefore, the issue as to the location of the fence in S.No.119 stands resolved. Whileso, the plaintiff has filed the present suit alleging that the first defendant has encroached a portion of his property on 20.08.1997 and put up the fence. To change the nature of the suit, the relief of declaration of title was also sought for, when the title of the plaintiff over the land in S.No.118 was never disputed. Whileso, the plaintiff has filed the present suit alleging that the first defendant has encroached a portion of his property on 20.08.1997 and put up the fence. To change the nature of the suit, the relief of declaration of title was also sought for, when the title of the plaintiff over the land in S.No.118 was never disputed. In view of the above, this court is of the view that both the courts below have failed to appreciate that if a part of the land in S.No. 118 was located to the south of the fence marked as ‘AB’ in the earlier suit and ‘PO’ in the present suit, the plaintiff would have specifically stated so. He would not wait for another person to encroach his land and file a suit after four years. Even otherwise, having denied the allegations in para 6 of the plaint, the plaintiff (as defendant in the earlier suit) did not produce any evidence to show that a portion of his land was located within the fence on the southern side. Once, the location of the fence is resolved by a decree of the court, the same issue cannot be permitted to be re-opened under the guise of a different suit. 12. In the judgment reported in 2014 (6) SCC 424 (Coffee Board v. Ramesh Exports Private Limited), the Apex Court while deciding the applicability of Order II Rule 2 of CPC has held as follows:- ''The above rules are offshoots of the ancient principle that there should be an end to litigation traced in the Full Bench decision of the Court in Lachmi vs. Bhulli and approved by this Court in many of its decisions. The principle which emerges from the above is that no one ought to be vexed twice for the same cause. In light of the above, from a plain reading of Order 2 Rule 2, it emerges that if different reliefs and claims arise out of the same cause of action then the plaintiff must place all his claims before the Court in one suit and cannot omit one of the reliefs or claims except without the leave of the Court. Order 2 Rule 2 bars a plaintiff from omitting one part of claim and raising the same in a subsequent suit. (See: Deva Ram & Anr. vs. Ishwar Chand & Anr.). 10. Order 2 Rule 2 bars a plaintiff from omitting one part of claim and raising the same in a subsequent suit. (See: Deva Ram & Anr. vs. Ishwar Chand & Anr.). 10. Furthermore, this Court in Alka Gupta v. Narender Kumar Gupta stated that: "The object of Order 2 Rule 2 of the Code is twofold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit based on a different and distinct cause of action." 11. The bar of Order 2 Rule 2 comes into operation where the cause of action on which the previous suit was filed, forms the foundation of the subsequent suit; and when the plaintiff could have claimed the relief sought in the subsequent suit, in the earlier suit; and both the suits are between the same parties. Furthermore, the bar under Order 2 Rule 2 must be specifically pleaded by the defendant in the suit and the Trial Court should specifically frame a specific issue in that regard wherein the pleading in the earlier suit must be examined and the plaintiff is given an opportunity to demonstrate that the cause of action in the subsequent suit is different. This was held by this Court in Alka Gupta v. Narender Kumar Gupta (supra) which referred to decision of this Court in Gurbux Singh vs. Bhooralal wherein it was held that: "13..... 6. This was held by this Court in Alka Gupta v. Narender Kumar Gupta (supra) which referred to decision of this Court in Gurbux Singh vs. Bhooralal wherein it was held that: "13..... 6. In order that a plea of a bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out: (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for 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 the application of the bar." 12. The Courts in order to determine whether a suit is barred by Order 2 Rule 2 must examine the cause of action pleaded by the plaintiff in his plaints filed in the relevant suits (See: S. Nazeer Ahmed v. State Bank of Mysore & Ors.). Considering the technicality of the plea of Order 2 Rule 2, both the plaints must be read as a whole to identify the cause of action, which is necessary to establish a claim or necessary for the plaintiff to prove if traversed. Therefore, after identifying the cause of action if it is found that the cause of action pleaded in both the suits is identical and the relief claimed in the subsequent suit could have been pleaded in the earlier suit, then the subsequent suit is barred by Order 2 Rule 2." 13. The learned counsel had relied upon the above judgment to contest that the principle laid down therein that for the same cause of action, no separate suit can be initiated, is equally applicable to the defendant in a suit also. The learned counsel had relied upon the above judgment to contest that the principle laid down therein that for the same cause of action, no separate suit can be initiated, is equally applicable to the defendant in a suit also. The above case would be applicable to cases where the plaintiff has failed to obtain the leave to institute a suit at a later date for the same cause of action, on which, a suit was instituted earlier. The Civil Procedure code in itself contains provisions applicable to a defendant, emphasizing the principle laid down in the Apex Court judgment. 14. Order VIII of C.P.C lays down the provisions regarding the written statement and its contents. Order VIII of C.P.C is as follows: "The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty day, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons." 15. Upon reading the above Order, it is clear that the defendant in the suit must raise specific pleadings regarding the facts alleged in the suit and the denial must not be evasive. He is bound to answer the point of substance. Further as per Order VIII Rule 6A of CPC, the defendant could also have raised a counter-claim. Rule 6A of Order VIII of CPC can be invoked to seek any relief, for which a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit, but before the defendant has delivered his defence or before the time limited for delivering his defence has expired. Once such counter claim is filed, it will have the same effect of a cross-suit. In the present case, the plaintiff had stated nothing about the encroachment of the first defendant on 20.08.1997, and also failed to make any counter-claim. Therefore, this court is of the view that the plaintiff is estopped by virtue of section 11 of C.P.C. from re-opening the issue again. 16. In the present case, the plaintiff had stated nothing about the encroachment of the first defendant on 20.08.1997, and also failed to make any counter-claim. Therefore, this court is of the view that the plaintiff is estopped by virtue of section 11 of C.P.C. from re-opening the issue again. 16. Apart from noticing the above, the first appellate court has gone a step further and stated that as the first defendant is not the owner of the land in S.No.119, he cannot seek any relief against the plaintiff. This finding of the first appellate court is against the well settled principle of law that the person in possession will have a better right from all others except the true owner. 17. In the judgment reported in 1994 (2) SCC 14 (Sulochana Amma v. Narayana Nair), the Apex Court has held as follows; "5. Section 11 of CPC embodies the rule of conclusiveness as evidence or bars as a plea as issue tried in an earlier suit founded on a plaint in which the matter is directly and substantially in issue and became final. In a later suit between the same parties or their privies in a court competent to try Such subsequent suit in which the issue has been directly and substantially raised and decided in the judgment and decree in the former suit would operate as res judicata. Section 11 does not create any right or interest in the property, but merely operates as a bar to try the same issue once over. In other words, it aims to prevent multiplicity of the proceedings and accords finality to an issue, which directly and substantially had arisen in the former Suit between 1 AIR 1978 Cal 440 : (1978) 2 Cal LJ 150: 82 CWN 1097 2 AIR 1980 Cal 181 : (1980) 1 Cal LJ 203 3 AIR 1980 Ker 230 : 1980 KLT 690 4 AIR 1981 Ori 177 : (1981) 52 Cut LT 242 5 1991 LW 63 (Mad): (1991) 2 MLJ 538 the same parties or their privies, been decided and became final, so that parties are not vexed twice over; vexatious litigation would be put to an end and the valuable time of the court is saved. It is based on public policy, as well as private justice. They would apply, therefore, to all judicial proceedings whether civil or otherwise. It is based on public policy, as well as private justice. They would apply, therefore, to all judicial proceedings whether civil or otherwise. It equally applies to quasi-judicial proceedings of the tribunals other than the civil courts." ..... ..... 8. It is settled law that explanation to a section is not a substantive provision by itself. It is entitled to explain the meaning of the words contained in the section or clarify certain ambiguities or clear them up. It becomes a part and parcel of the enactment. Its meaning must depend upon its terms. Sometimes it would be added to include something within it or to exclude from the ambit of the main provision or some condition or words occurring in it. Therefore, the explanation normally should be so read as to harmonise with and to clear up any ambiguity in the same section." 18. In the judgment reported in 2005 (4) CTC 20 (Aanaimuthu Thevar (Dead) by LRs. .v. Alagammal and others), the Apex Court has held as follows: 29. The former suit in which decree of permanent injunction was sought was clearly founded on the claim of Muthuswami as the owner of the suit house to execute a mortgage. The issue of title or ownership of the suit house was thus directly or substantially involved in the former suit. 30. We find sufficient force in the alternative contention advanced on behalf of wife Alagammal and her children that doctrine of constructive res judicata, as contained in explanation IV to section 11 of the Code certainly, can be invoked against the present appellant, who claims by a purchase from Muthuswami. Explanation IV to section 11 of the Code states :- "Explanation IV.-Any matter which might and ought to have been made ground defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. ..... .... 34. We can not prepared to accept the argument advanced on behalf of the above appellant as the successor-in-title of Muthuswami that in the absence of formal deed of conveyance of the suit house by the housing society in favour of Muthuswami, the issue of title to the suit house could neither be raised nor was raised in the former suit. We can not prepared to accept the argument advanced on behalf of the above appellant as the successor-in-title of Muthuswami that in the absence of formal deed of conveyance of the suit house by the housing society in favour of Muthuswami, the issue of title to the suit house could neither be raised nor was raised in the former suit. On the examination of case pleaded by the parties in the former suit and the judgment rendered therein we find that the plea of ownership to the suit house was substantially involved for seeking relief of permanent injunction. Undoubtedly, such plea of ownership could and ought to have been raised in the former suit. Therefore, this subsequent suit filed by the present appellant as purchaser from Muthuswami is barred by constructive res judicata and the High Court was right in holding accordingly. See the following observations of this Court in the case of Sulochana Amma v. Narayan Nair, (1994) 2 SCC 14 :- "(It was) contended that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata." 19. In the judgment reported in 2006 (1) CTC 197 (V. Kandasamy .v. C. Kandasamy and others), this court has held as follows: 7. Section 11 CPC contains the Rule of conclusiveness of the judgment which is based partly on the maxim "interest reipublicae at sit finis litum" (it concerns the state that there be an end to law suits) and partly on the maxim "Nemo debet bis vexari pro una at eadem cause (no man should be vexed twice over for the same cause). 8. The doctrine of resjudicata is principals of equity, good conscience and justice. 8. The doctrine of resjudicata is principals of equity, good conscience and justice. It would neither be equitable nor fair nor in accordance with the principles of natural justice that the issue concluded earlier ought to be permitted to be raised later in a different proceedings. 9. The principles of resjudicata is intended not only to prevent a new decision, but is also to prevent a new investigation so that the same person cannot be harassed again and again in various proceedings upon the same question of law. .... .... 11. The principles of resjudicata is based on the need of giving finality to judicial decision. Section 11 of CPC is not an exhaustive, it's underlying doctrine is that none should be vexed twice on the same subject matter. Where Section 11 does not in terms apply, general principles of resjudicata can be applied. ..... ..... 7. A decision on an issue of law will operate as resjudicata in a subsequent pleading between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has changed since earlier decision by a competent authority nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding nor when the earlier decision declared valid the transaction which is prohibited by Law. 20. In the judgment reported in 2010 (10) SCC 141 (Alka Gupta .v. Narender Kumar Gupta), the Apex Court has held as follows:- "21. Res judicata means a thing adjudicated' that is an issue that is finally settled by judicial decision. The Code deals with res judicata in section 11, relevant portion of which is extracted below (excluding Explanations I to VIII): "11. Res judicata.-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 same 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" 22. Section 11 of the Code, on an analysis requires the following essential requirements to be fulfilled, to apply the bar of res judicata to any suit or issue: (i) The matter must be directly and substantially in issue in the former suit and in the later suit. (ii) The prior suit should be between the same parties or persons claiming under them. (iii) Parties should have litigated under the same title in the earlier suit. (iv) The matter in issue in the subsequent suit must have been heard and finally decided in the first suit. (v) The court trying the former suit must have been competent to try particular issue in question. 23. To define and clarify the principle contained in Section 11 of the Code, eight Explanations have been provided. Explanation I states that the expression `former suit' refers to a suit which had been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II states that the competence of a court shall be determined irrespective of whether any provisions as to a right of appeal from the decision of such court. Explanation III states that the matter directly and substantially in issue in the former suit, must have been alleged by one party or either denied or admitted expressly or impliedly by the other party. "Explanation IV provides that any matter which might and ought to have been made a 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." The principle of constructive res judicata emerges from Explanation IV when read with Explanation III both of which explain the concept of "matter directly and substantially in issue". 24. Explanation III clarifies that a matter is directly and substantially in issue, when it is alleged by one party and denied or admitted (expressly or impliedly) by the other. Explanation IV provides that where any matter which might and ought to have been made a ground of defence or attack in the former suit, even if was not actually set up as a ground of attack or defence, shall be deemed and regarded as having been constructively in issue directly and substantially in the earlier suit. Explanation IV provides that where any matter which might and ought to have been made a ground of defence or attack in the former suit, even if was not actually set up as a ground of attack or defence, shall be deemed and regarded as having been constructively in issue directly and substantially in the earlier suit. Therefore, even though a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the earlier suit, it became a bar in regard to the said issue being taken in the second suit in view of the principle of constructive res judicata. Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised, whereas Order 2 Rule 2 of the Code relates to reliefs which ought to have been claimed on the same cause of action but not claimed. 25. The principle underlying Explanation IV to Section 11 becomes clear from Greenhalgh v. Mallard [1947 (2) All ER 257] thus: "....it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. (emphasis supplied) 26. In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra [ 1990(2) SCC 715 ], a Constitution Bench of this Court reiterated the principle of constructive res judicata after referring to Forward Construction Co. v. Prabhat Mandal [1986 (1) SCC 100] thus: "35. .... (emphasis supplied) 26. In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra [ 1990(2) SCC 715 ], a Constitution Bench of this Court reiterated the principle of constructive res judicata after referring to Forward Construction Co. v. Prabhat Mandal [1986 (1) SCC 100] thus: "35. .... an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence." In this case, the High Court has not stated what was the ground of attack that plaintiff-appellant ought to have raised in the first suit but had failed to raise, which she raised in the second suit, to attract the principle of constructive res judicata. The second suit is not barred by constructive res judicata. IV. A suit cannot be dismissed without trial merely because the court feels dissatisfied with the conduct of the plaintiff. 21. The ratio in the above judgments would clearly illustrate the intention behind the legislation of Section 11 of C.P.C., and more particularly Explanation 4. If an issue had already been settled by a judgment of a Court of competent jurisdiction, the same should not be permitted to be re-agitated. Similarly, a party to a dispute must not be put to defend vexatious claims again and again under the guise of a different suit. If permitted, it would make way for heinous litigants. In the case on hand, the plaintiff having failed to raise the plea that the first defendant has encroached the portion of the plaintiff’s property and laid the fence on 20.08.1997, cannot be permitted to re-agitate the issue of the existence of the fence in S.No.118 or S.No.119, in view of the decision of the District Munsif Court in O.S No.135 of 1997. As the suit is hit by Section 11 of C.P.C, this court is not going into the findings regarding the report of the advocate commissioner. Hence this court is of the view that the suit in O.S No.17 of 2001 must have been dismissed as having been barred by Section 11 of C.P.C. 22. Order IV of C.P.C talks about institution of suits. Hence this court is of the view that the suit in O.S No.17 of 2001 must have been dismissed as having been barred by Section 11 of C.P.C. 22. Order IV of C.P.C talks about institution of suits. "ORDER IV INSTITUTION OF SUITS 1. Suit to be commenced by plaint (1) Every suit shall be instituted by presenting a [plaint in duplicate to the Court] or such officer as it appoints in this behalf. (2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable. (3) The plaint shall not be deemed to by duly instituted unless it complies with the requirements specified in sub-rules (1) and (2).” 23. Order VII Rule 11 of C.P.C. talks about rejection of plaint. Under Order VII Rule 11(d) of C.P.C., the plaint must be rejected if on a meaningful reading of the plaint, the suit is barred by any law. The bar can be express or by implication. 24. In T.ARIVANANDAM Vs T.V. SATYAPAL (1977 AIR SC 2421), the Apex Court has held as follows: “The pathology of litigative addiction ruins the poor of this country and the Bar has a role to cure this deleterious tendency of parties to launch frivolous and vexatious cases. Here is an audacious application by a determined engineer of fake litigations asking for special leave to appeal against an order of the High Court on an interlocutory application for injunction. The sharp practice or legal legerdemain of the petitioner, who is the son of the 2nd respondent, stultifies the court process and makes decrees with judicial seals brutumfulmen. The long arm of the law must throttle such, litigative caricatures if the confidence and credibility of the community in the judicature is to survive. The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII R. 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. VII R. 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch. XI) is also resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi "It is dangerous to be too good." The trial court in this case will remind itself of s. 35-A C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned. We regret the infliction of the ordeal upon the learned Judge of the High-Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the co-operation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts.” 25. This court is of the view that the Trial Court must have exercised its powers under Order VII Rule 11 of C.P.C. and rejected the suit at the threshhold. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts.” 25. This court is of the view that the Trial Court must have exercised its powers under Order VII Rule 11 of C.P.C. and rejected the suit at the threshhold. Unfortunately, the first appellate court has also fallen in similar line. In view of the above, the first substantial question of law is decided in favour of the appellant/first defendant. 26. The second substantial question of law: The learned counsel for the appellant/first defendant has contended that the cause of action for the present suit arose on 20.08.1997 and therefore, the suit must have been filed within 3 years from thereon. Since the suit was filed only in 2001, the same was barred by limitation. The learned counsel for the first respondent/plaintiff has rebutted the contention and claimed that a demand was made to the first defendant on 25.12.2000 and upon his failure to restore the fence, the present suit was filed. The learned counsel further contended the plea of limitation cannot be permitted to be taken for the first time at the stage of second appeal. 27. Upon perusal of the pleadings, the appellant/first defendant even in his written statement has contended that the suit was barred by limitation. However, no issue to that effect was framed by the trial court. In any case, it is settled law that the plea of limitation, being a legal plea, can be raised at any time. The demand on 25.12.2000 is not the cause of action, on which the suit has been filed, it is the date on which the alleged encroachment had taken place, i.e. on 20.08.1997. As per The Schedule of the Limitation Act, Part III, Entry 58, to seek a relief of declaration, the time limit is three years commencing from the date when the right to sue first accrues. The right to sue to the plaintiff arose on 20.08.1997. He has filed the suit only on 29.01.2001. It is pertinent to mention here that the earlier suit filed by the first defendant was decreed on 28.08.2000. After, losing in the earlier round and after filing the appeal on 06.11.2000, to give life to the lost pursuit, the present suit has been filed by claiming that a demand to restore the fence was made on 25.12.2000. It is pertinent to mention here that the earlier suit filed by the first defendant was decreed on 28.08.2000. After, losing in the earlier round and after filing the appeal on 06.11.2000, to give life to the lost pursuit, the present suit has been filed by claiming that a demand to restore the fence was made on 25.12.2000. The suit is beyond three years and barred by limitation. Hence the second substantial question of law is also decided in favour of the appellant/first defendant. 28. In the result, the judgments and decrees of both the courts below are set aside and the second appeal is allowed. No Costs.