JUDGMENT : D. Dash, J. - The unsuccessful plaintiffs of O.S. No. 23 of 1979 of the Court of the Subordinate Judge, Puri (as it was then) have preferred this appeal challenging the judgment and decree passed therein dismissing the suit. 2. For the sake of convenience, clarity and to avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the Court below. It is pertinent to state here that the sole respondent (defendant) having died during pendency of this appeal, his legal representatives have been brought on record as respondents. 3. The plaintiffs filed the suit for declaration of their title, confirmation of possession in respect of the land described in schedule 'A' of the plaint with the consequential reliefs of permanent injunction restraining the defendant from interfering in the possession and also for recovery of possession, in case, they are found to have been dispossessed. Besides the above, a claim for damage of Rs. 1500/- was also advanced. The extent of the suit land is Ac. 6.40 dec. and it originally belonged to the State of Odisha in the Department of Public Works. The said land was leased out in the favour of one Birabar Mohanty, the predecessor-in-interest of the plaintiffs and that was in the year 1945-46. As lessee, Birabar began to possess the said land and continued as such with payment of rent regularly. It is stated that after the lease followed by delivery of possession of the subject matter Birabar invested huge amount of reclaiming the same, in making it fit for agricultural purpose. The said Birabar has thus become a settled raiyat and acquired the occupancy right in respect of the said property with such status. In the year 1955 the State filed a suit against Birabar for eviction, i.e. O.S. No. 10/66 of 1958-55(1). The suit was decreed by the Additional Subordinate Judge, Puri (as it was then). So the decision went in favour of the State. Being aggrieved, Birabara carried an appeal before the Court of the District Judge, Puri, i.e., T.A. No. 51 of 1958. The suit was decreed by the Additional Subordinate Judge, Puri (as it was then). So the decision went in favour of the State. Being aggrieved, Birabara carried an appeal before the Court of the District Judge, Puri, i.e., T.A. No. 51 of 1958. In the said appeal, the judgment and decree passed by the Court below were set aside with a specific finding that Birabara had acquired the right of occupancy in the suit land as soon as he became a settled raiyat of the village while dismissing the suit for eviction filed by the State. It is the further case of the plaintiffs that as before, Birabar continued to possess the suit land raising below vines on a portion of it, digging tank on another portion and converting the rest as fit for paddy cultivation besides having plantation of coconut trees, plantain and other fruits bearing trees at different places. It is also their case that four rooms were constructed at one place for keeping the agricultural implements. So, their case is that such possession by Birabar was to the knowledge of all concerned including the defendant. It is said that the defendant has absolutely no manner of right, title and interest or possession over the suit property and at no point of time, he had exercised any such act over any portion of the property. It is further stated that the defendant being a clever man with mischievous character taking help of some rowdy elements of the locality with an eye to grab the property at any cost on a fine morning instituted a proceeding under Section 145 of the Code of Criminal Procedure before the S.D.O., Puri Sadar and obtained an order of appointment of a receiver under Section 146(1) of the Code. Birabara and his son having come to know about it immediately took shelter in the civil Court for safeguard their interest over the property by filing O.S. No. 78/29 of 1976/72(1) with simple prayer for permanent injunction restraining the defendant from interfering with their possession over the suit land which came to be decided by learned Additional Munsif, Puri. The suit was decreed. So, the defendant carried an appeal and it came to be heard by the learned Subordinate Judge, Puri in T.A. No. 41/37 of 1977. The suit was decreed. So, the defendant carried an appeal and it came to be heard by the learned Subordinate Judge, Puri in T.A. No. 41/37 of 1977. In the said appeal, the defendant was found to be a co-possessor in respect of the suit property and, therefore, the appeal was allowed by setting aside the decree passed by the Court below in finally holding that a co-possessor cannot be permanently restrained by another person in possession along with him. Thus, the suit for permanent injunction simplicitor met with dismissal. Sometime, thereafter the suit giving rise to the present appeal has been filed narrating the cause of action that the defendant forcibly removed the usufructs being emboldened by the order in the title suit No. 41/37 of 1977. 4. The defendants contested the suit. While traversing the plaint averments the exclusive possession of the plaintiffs as owner of the suit property has been strenuously resisted. Pleading has been advanced with regard to lack of cause of action, the suit being barred by principles of res judicata in view of the decision of Title Appeal No. 41/37 of 1977, arising out O.S. No. 78/29 of 1976/72 (I). It is the case of defendant that he has a money share over the suit land and the other half belongs to the plaintiffs. It is his case that from the very beginning since the time of Birabara he has been possessing the suit land. So according to his case, the plaintiffs are estopped by their conduct from challenging the ownership of the defendant in respect of his moiety share. It is stated that the suit land was lying as waste land being a part of Nayan jori, i.e., road side land. It was leased out to one Ananda Mishra for agricultural and horticultural purpose in the year 1943. When Ananda Mishra found-that it would incur huge amount for reclamation, he requested Birabar and the defendant to take said land on lease. At this time, Birabar requested the defendant, who was one of his trusted friend to execute the work by investing money with his necessary supervision. The land was acquired in 1945. But the defendant being an illiterate man, the lease was allowed to stand and continue in the name of Birabar although it was a joint acquisition. At this time, Birabar requested the defendant, who was one of his trusted friend to execute the work by investing money with his necessary supervision. The land was acquired in 1945. But the defendant being an illiterate man, the lease was allowed to stand and continue in the name of Birabar although it was a joint acquisition. It is further stated that all throughout, they were together in possession notwithstanding the lease standing simply in the name of Birabar as per the official record. It is the further case that they have made a lot of development over the suit land and the income from out of it was being shared half and half between them. It is next stated that when Birabara grew old, his son and other persons misguided him in claiming exclusive title and possession over the suit land. It is the specific case of the defendant that in the earlier suit a conclusive finding having been rendered that he is a co-possessor, the plaintiffs are liable to be non-suited. 5. Faced with the rival pleading as above, the trial Court framed in total ten issues. Besides the issues with regard to cause of action, maintainability, valuation, the other issues are as to whether the suit is barred by res judicata and whether the plaintiffs have the sole and exclusive ownership over the suit land or if the defendant is a co-owner having a moiety share and as such a co-possessor. Also an issue has been framed as regards the defendant's claim of acquisition of title by way of adverse possession. Proceeding to take up issue No. 5, 6 and 8 as regards the exclusive ownership of plaintiffs vis-a-vis the defendant owning a moiety share therein and co-owner thereof as well as the question of claim of the defendant with regard to acquisition of the title over half share in the suit land by adverse possession the Court below has finally answered that the plaintiffs have no subsisting right of ownership and possession thereof over suit property and the defendant has acquired the title to half share of the suit property by adverse possession. Lastly on the issue No. 9 as regards the plaintiff's claim of damages, the same consequently has also been answered against them. With these answers to the issue the trial Court has non-suited the plaintiffs. 6. Lastly on the issue No. 9 as regards the plaintiff's claim of damages, the same consequently has also been answered against them. With these answers to the issue the trial Court has non-suited the plaintiffs. 6. The trial Court at the outset has taken up issue No. 4 concerning the suit being barred by 'res judicata'. By going for an elaborate discussion of the provision of law as it has undergone change in the year 1976 by way of addition of Explanation-VIII to section 11 of the code of Civil Procedure and referring "to several decisions it has answered the issue against the plaintiff and in favour of the defendant. 7. Learned counsel for the appellants (plaintiffs) before proceeding to advance submission attacking the findings on other issues contends that first of all this Court should take up the exercise of judging the defensibility of the answer to this issue No. 4. Leaned counsel for the appellants submits that by framing and going to answer the issue, it appears that the Court below has put the cart before the horse. According to him, there was neither any necessity to frame such an issue in view of the rival pleadings nor the Court was required to bear such great pain and strenuous exercise in answering the said issue when it is not in dispute that the defendant is a co-possessor with respect to the suit land which stands and has attained finality, particularly when it is not the case of plaintiffs that the same is not binding on them. According to him, the point is very simple that when such findings stairs whether the plaintiffs can file the suit which is based upon their claim of title and right to possess. He contends that in the facts and 'circumstances of this case, which stand admitted, the answer to the above question has to be in the affirmative and is no more required to be deliberated upon. He contends that in the present suit plaintiffs having established their title and thus having the right to possess the suit land and when the defendant has failed to show any right over the land in question which includes the failure to establish the case of acquisition of title, so as to continue in the possession in respect of the suit land the suit ought to have been decreed. Thus he contends that the trial Court has grossly erred in law by deciding the suit in rendering the decision on that issue No. 4 in non-suiting the plaintiffs. Learned counsel for the respondent (defendants) submits that the defendant in the earlier suit had stated their claim of possession over the portion of the suit land to be a long standing the since the time when Birabara began to possess and as of right. Therefore, the Court below has rightly held that the said finding being not liable to be reopened and that the said question cannot be re-agitated for decision. So according to him, the suit has been rightly dismissed. In elaborating his submission, he has placed the pleadings of the defendant in earlier suit, which remains the same as in the present suit and thus he submits that such case of the defendant has been already accepted on the earlier occasion in the suit concerning the same subject-matter between the parties. Thus he contends that the Court below has rightly found the plaintiffs as being not entitled to raise said claim in the present suit to recover the possession from the defendant. 8. Considering with the above rival submission, at the outset, for proper for appreciation at the risk of repetition, it is required to take note of the undisputed factual aspects of this case as those emanate from pleadings. Late Birabara, the predecessor-in-interest of the plaintiffs acquired the suit property by way of lease from the Chief Engineer, P.W.D. in the year 1955 vide O.S. No. 10/66 of 1958/55. The state filed a suit for eviction against the said Birabara. The suit was decreed. Being aggrieved by the same, Birabara carried an appeal before the Court of the learned District Judge, Puri being numbered as T.A. No. 51 of 1958 in assailing the judgment and decree rendered in the said suit in favour of the State. The appeal was allowed on 03.03.1960 setting aside the judgment and decree of the trial Court holding Late Birabara to have acquired the right of occupancy rayat vide Ext. 8. The appeal was allowed on 03.03.1960 setting aside the judgment and decree of the trial Court holding Late Birabara to have acquired the right of occupancy rayat vide Ext. 8. When the matter stood thus, in the year 1971-72 the original defendant Natabar Senapati filed an application for initiation of proceeding under Section 145 of the Code of Criminal Procedure before the Sub-divisional Officer, Puri in respect of the said land and on the basis of the police report there was promulgation and receiver was appointed for the said land. In view of that, Birabara and his son Gokulananda filed a suit for permanent injunction in the Court of Munsif, Puri (as it was then) vide O.S. No.-78/29 of 1976772 (Ext. C). By order dated 02.03.1972 the proceeding under Section 145 of Cr.P.C. was dropped followed by order of appointment of receiver. On 25.02.1977 the suit for permanent injunction was decreed against the defendant. Being aggrieved by the said judgment and decree, Natabar preferred an appeal which came to be heard by the learned Sub-Judge, Puri in T.S. No. 91/37 of 1977 (Ext. E) the appellate Court finally set aside the judgment and decree passed by the original Court rendering a finding that Natabar is a co-possessor and, therefore, decision was rendered that defendant cannot be restrained permanently by an order of injunction as prayed for in the suit. Although second appeal was filed before this Court vide S.A. No. 240 of 1978 (Ext. N), the same was not admitted. So the factual position stands that the plaintiffs approach in the suit for grant of permanent injunction restraining the defendants from interfering with the possession of the suit land and to possess the same, did not succeed and that carried a finding that the defendant is a co-possessor. 9. With the above stated litigation scenario, plaintiffs being the legal representatives have come up with the suit for grant of decree declaring their title over the suit property with the consequential relief of conformation of possession, permanent injunction and in case of dispossession for recovery of the same. 10. 9. With the above stated litigation scenario, plaintiffs being the legal representatives have come up with the suit for grant of decree declaring their title over the suit property with the consequential relief of conformation of possession, permanent injunction and in case of dispossession for recovery of the same. 10. With the above in mind, let me take up the defensibility of the answer rendered by the trial Court in respect of issue No. 4 and as regards the necessity of the said issue being framed which according to the learned counsel for the appellant is an exercise in futility for the purpose. The plaintiff in that suit while describing their title over the said suit land had asserted their possession, by specifically stating that the defendant has absolutely no right and title over the portion thereof and was not in the possession of the same or any portion thereof. The suit being contested by the present defendant, they inter alia pleaded that they are also in possession of the portion of the suit land from the time when Birabara entered into the possession. While decreeing the suit the trial Court answered the same in favour of plaintiff which have been upset by the appellate Court against which though challenge was made, the same did not yield any fruitful result. Now, therefore, it is necessary to have a look at the finding rendered before the appellate Court. The question got posed as to whether the plaintiffs are in exclusive possession over the suit property or they are in joint possession with the defendant. The appellate Court as it appears from the judgment Ext-E was conscious of the position of law that in a suit for injunction the question of possession is most important. It has said that if the defendant has proved that he is in possession of the suit land or any part thereof, no injunction can be issued as prayed for. Keeping that in mind, the appellate Court examined the evidence and then ultimately arrived at a conclusion after elaborate discussion of the evidence and upon their critical examination that the defendant is a co-possessor along with the plaintiff. Nothing more has been found out in that appeal as regards the claim of the defendant having a moiety share or even that he was in possession since the very inception. Nothing more has been found out in that appeal as regards the claim of the defendant having a moiety share or even that he was in possession since the very inception. The trial Court proceeded in a wrong notion that the entire claim of the defendant as projected here in the suit was earlier so found in their favour in that suit without bearing in mind that appellate Court being conscious of the position that the fate of the suit was solely hinging upon a finding of possession and that simply the question of possession was only gone into rendered the decision, followed by a finding in that appeal that the defendant is a co-possessor and in that view of the matter, the plaintiffs in that suit were non-suited. This was not called in question in this suit to be reagitated. The present suit is based upon title and the claim of the right to possess the entire suit land. 11. At this stage is necessary to refer first to a decision of Apex Court in case of "Gram Panchayat or Village Naulakha v. Ujagar Singh :, (2000) 7 SCC 543 . In that case the earlier suit was for injunction and not one based on title. In that suit the question of title was neither gone into nor decided. So the decision of the earlier suit was held not binding in the later suit or proceeding where title was directly in question. The decision in case of "Sajjadanashin Sayed v. Musa Dadabhai Ummer :., (2000) 3 SCC 350 has been referred to therein, which held that - "Even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was "necessary" in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title. Even mere framing of an issue on title may not be sufficient." 12. Even mere framing of an issue on title may not be sufficient." 12. In case of 'Williams v. Lourdusamy and another, (2008) 5 SCC 647 in the earlier suit for injunction the finding of possession was rendered in favour of plaintiff where after the defendant brought a suit for declaration of title and recovery of possession when the plaintiff filed a suit for specific performance of contract. Both the suits being consolidated were disposed of together. By the judgment suit for specific performance of contract was dismissed and the suit for title and confirmation of possession was allowed. The matter finally came in second appeals to High Court which relying on a stray observation of trial Court that possession was delivered on the basis of the purported oral agreement for sale, held the applicability of principles of res judicata. The Apex Court considered the position of law as regards Section 11 of the Code of Civil Procedure with reference to Explanation VIII and held in para 11 as under: "The principles of res judicata although provide for a salutary principle that no person shall be harassed again and again, have its own limitations. In OS No. 402 of 1987, Respondent 2 was not impleaded as a party. In his absence therefore, the issue as to whether Respondent 2 had entered into an oral agreement of sale or not could not have been adjudicated upon. The said Court had no jurisdiction in that behalf. If that was decided in the suit, the findings would have been nullities. (Chief Justice of A.P. v. L.V.A. Dixitulu and Hasham Abbas Sayyad v. Usman Abbas Sayyad :, (2007) 2 SCC 355 . 13. In that case again the decision in Sajjidasashin Sayed v. Musa Dadabhai Ummer (supra) was relied upon and held that even in spite of specific issue and an adverse finding in an earlier suit, the same was not treated as res judicata being purely incidental or ancillary or collateral to the main issue. Para 24 of said decision is quoted herein below for better understanding. "24. Before parting with this point, we would like to refer to two more rulings. In Sulochana Amma v. Narayanan Nair (1994) 2 SCC 14 this Court held that a finding as to title given in an earlier injunction suit would be res judicata in a subsequent suit on title. "24. Before parting with this point, we would like to refer to two more rulings. In Sulochana Amma v. Narayanan Nair (1994) 2 SCC 14 this Court held that a finding as to title given in an earlier injunction suit would be res judicata in a subsequent suit on title. On the other hand, the Madras High Court, in "Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari:, AIR 1965 Madras 355 held that the previous suit was only for injunction relating to the crops. May be, the question of title was decided, though not raised in the plaint. In the latter suit on title, the finding in the earlier suit on title would not be res judicata as the earlier suit was concerned only with a possessory right. These two decisions, in our opinion, cannot be treated as being contrary to each other but should be understood in the context of the texts referred to above. Each of them can perhaps be treated as correct if they are understood in the light of the tests stated above. In the first case decided by this Court, it is to be assumed that the tests above referred to were satisfied for holding that the finding as to possession was substantially rested on title upon which a finding was felt necessary and in the latter case decided by the Madras High Court, it must be assumed that the tests were not satisfied. As stated in Mulla, it all depends on the facts of each case and whether the finding as to title was treated as necessary for grant of an injunction in the earlier suit and was also the substantive basis for grant of injunction. In this context, we may refer to Corpus Juris Secundum (Vol. 50 para 735, P. 229) where a similar aspect in regard to findings on possession and incidental findings on title were dealt with. In this context, we may refer to Corpus Juris Secundum (Vol. 50 para 735, P. 229) where a similar aspect in regard to findings on possession and incidental findings on title were dealt with. It is stated : "Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title." This position has been reiterated in Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202 . In this connection it is profitable to go through the decision of the Hon'ble Apex Court in case of Anathula Sudhakar v. P.Buchi Reddy (2008) 4 SCC 594 . In the said case decision in laying down the principles as to when a mere suit for prohibitory injunction Simpliciter will lie, the Apex Court have held that as a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings land issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. Even where there are necessary pleadings land issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. Having carefully gone through the decisions cited by the learned counsel for the respondents in case of Khemchand and others v. Kamal Kishore and others : 1987 (I) SCC 970 and Sulochana Amma v. Narayan Naik, AIR 1994 SC 152 , this Court find that those do not come to the aid of the respondents in defending the finding of trial Court in that regard with the position of law set out in those cases, the facts are quite distinguishable. 14. In the anvil of above principles of law this Court find force in the submission of the learned counsel for the appellants submission that there was no necessity for the trial Court to frame such an issue on res judicata. When the Court has decided the suit simply answering the issue of possession non-suiting the plaintiff, the said finding automatically does not operate as res-judicata in a subsequent suit between the same party in respect of the same subject matter. Had the Court in order to decide the issue of possession would have gone into question of title as it was no necessary for deciding that suit on the face of specific pleading and counter pleading to that effect and would have thus decided the question of possession, the finding with regard to title over the suit property would have certainly stood as res judicata in the subsequent suit. That it is not the case under consideration before us. The principle of res judicata is based upon public policy to prevent multiplicity of the litigation and that is the reason the provision of law has undergone, sea change by the amendment to Code of Civil Procedure carried out in the year 1976 with insertion of explanation VIII to Section 11. But here the point is not that. A careful reading of the judgment of the appellate Court in the appeal Ext. But here the point is not that. A careful reading of the judgment of the appellate Court in the appeal Ext. E arising out of the earlier suit between the parties for permanent injunction it is seen that from the very beginning, the Court has simply gone to look into the question of possession as per the competing claim in that regard ' and the title of the parties has never been found as necessary for deciding the suit in rendering the answer to the issue of possession. Also, no aid has been taken by having an examination on the competing claim of title as advanced by the parties. Thus, I find that strenuous exercise taken up by the Trial Court in that regard in answering issue No. 4 is one in futility. And that has absolutely nothing to do so far as the present suit is concerned. 15. With the aforesaid, now this Court is called upon to examine competing claim of the title as advanced of the parties, which necessarily would include the claim of the defendant as regards the acquisition of title by adverse possession over half of the suit land. This is covered by issue Nos. 5, 6, and 8. Learned counsel for the plaintiffs while not pressing issue No. 9 vehemently urges that finding on issue Nos. 5, 6 and 8 are erroneous and also wholly contrary to the basic principles of law of acquisition of title by adverse possession. According to him, the case set up by the defendant does not fall for being considered regarding their claim of title and such pleadings even if accepted, do not given any foundation for a case of acquisition of title by adverse possession. Learned counsel for the respondent relying on certain decisions, which will be gone through in course of discussion, supports of the finding of the trial Court. 16. The plaintiffs in order to establish their title to the suit property have proved the documents so more specifically, Ext. 8, the judgment in T.A. No. 51 of 1958 wherein Birabar was declared of having acquired a right of occupancy in the suit land as soon as he became a settled raiyat of the village as per the provisions of Odisha Tenancy Act which are not very much challenged. 8, the judgment in T.A. No. 51 of 1958 wherein Birabar was declared of having acquired a right of occupancy in the suit land as soon as he became a settled raiyat of the village as per the provisions of Odisha Tenancy Act which are not very much challenged. The defendant claims to be a co-possessor on the basis of their assertion that they are in possession from the beginning in respect of half of the suit property. It is the case that the possession was joint one along with Birabara and the oral evidence has been led by the defendant. The trial Court has found that if the possession of defendant is taken since year 1945 by the year 1957, the period of twelve years is being completed and, therefore, in that way it has been found that the defendant is having exclusive ownership and possession to the suit property and has acquired title over half share in the suit property by way of adverse possession. Such a finding, in my considered view, is untenable since the defendant in this case has not been able to prove that his possession was adverse to the lessee and that too in the absence of a case as to in respect of which portion. Moreover, that very claim of possession is based on the claimed status as a co-lessee which has not been established nor acceptable in view of evidence piloted by plaintiffs. That apart the antecedent title resting with Birabara stands admitted. Initially the defendants claim to be lessee and thereby claims to be in joint possession. As such, the same is against the basic principle of laying a foundation for a case of acquisition of adverse possession. In such case the pleadings do not stand for setting up of a plea of acquisition of title by adverse possession and rather the pleadings appear to be wholly contradictory. It is not stated that denying the status of Birabara as an occupancy raiyat of the suit land, the defendant began to possess asserting his own title and continued as such since then. The learned counsel for respondents cited the decision in the case of Babaji Daso Deshpande v. Jivaji Yeshvant Deshpande AIR 1930 Bombay 333 in support of their case. In the cited case the plaintiff admitted the joint possession of the family property and remained in possession as such. The learned counsel for respondents cited the decision in the case of Babaji Daso Deshpande v. Jivaji Yeshvant Deshpande AIR 1930 Bombay 333 in support of their case. In the cited case the plaintiff admitted the joint possession of the family property and remained in possession as such. The assertion was the adverseness of joint estate and claim of separate estate. In that case it has been held that possession of a joint estate is adverse to any claim to such an estate as a separate one, and that possession by joint family may by lapse of time become adverse to a separate estate. The fact's of the present case are quite different. Here the grant is to one and its claimed to be joint with possession as such. Moreso its not by members of the joint family. Therefore, said position as held in the cited case has no applicability to the case in hand. The defendant here is not also claiming title in exclusion to plaintiffs from whole but as of joint possession while stating claim over half of the total leasehold. Furthermore, the defendant claims as above are founded on contradictory base. The defendant having failed to prove the case as co-lessee, the claim of acquisition of title to the half of suit property by adverse possession has no leg to stand and even accepting the factum of possession for any length of time it cannot be so found. For the above discussion the reason, the finding of the trial Court on issue Nos. 5, 6 and 8 are indefensible and as such are liable to be set aside. 17. It is submitted that the suit is hit under the provision of under Order 2 and Rule 2 of the Code of Civil Procedure. Learned counsel for the appellants submits that the earlier suit is one for injunction based on simple possession and the subsequent suit being for title and possession, even if the pleadings to a great extent remains the same, provision of Order 2 and Rule 2 Code of Civil Procedure, cannot stand as a bar to subsequent suit. Learned counsel for the respondents in this connection has placed reliance in decision in case of Md. Khalil Khan v. Mahbub Ali Mian;, AIR (26) 1949 PC 78; Gopasundar Saboatho v. Chunilal AIR 1955 Orissa 6; Sudarsan Swain v. Jagannath AIR 1972 Orissa 112 (114). Learned counsel for the respondents in this connection has placed reliance in decision in case of Md. Khalil Khan v. Mahbub Ali Mian;, AIR (26) 1949 PC 78; Gopasundar Saboatho v. Chunilal AIR 1955 Orissa 6; Sudarsan Swain v. Jagannath AIR 1972 Orissa 112 (114). The contention can well be addressed if the provision of Order 2 Rule 2. C.P.C. is plainly read with the illustration given thereunder. The answer comes that the said provision does not stand as a bar to the subsequent suit of the plaintiff based on title in view of the earlier suit of injunction without claiming the relief of declaration of title. The discussions in foregoing paras and the conclusion also apply with full force to negate the above contention of learned counsel for respondents. First of all by filing the suit for injunction without the claim of declaration of title, the plaintiffs cannot be said to have neither omitted to sue in respect of their claim of title nor can it be said that in respect of same cause of action they omitted to claim the relief of decree for title. In that view of the matter, the decisions cited are not required to be further delved into and those do not come to the aid of the defendants. Next as the same cause of action refers to every fact which will be necessary for the plaintiff to prove if traversed in order to support his right of the judgment, the present case does not pass through the test whether the claim in the suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit. In those cited decisions principles have been decided as regards when can the provision of Order 2, Rule 2 CPC stand as a bar to the latter suit but those in view of above discussion do not come to the aid to non-suit the plaintiff. Therefore, the submission of the learned counsel for the respondents in that regard cannot be countenanced. In view of the aforesaid discussion and findings, the judgment and decree assailed in this appeal are held liable to be set aside, which is hereby done. 18. Therefore, the submission of the learned counsel for the respondents in that regard cannot be countenanced. In view of the aforesaid discussion and findings, the judgment and decree assailed in this appeal are held liable to be set aside, which is hereby done. 18. The suit of the plaintiffs is hereby partly decreed declaring the title of the plaintiffs over the suit land with other consequential reliefs as claimed therein except the claim of damage. Resultantly, this appeal stands allowed and in the circumstance without cost. Final Result : Dismissed