JUDGMENT 1. - This Writ Petition is directed against Order dated 28.1.1987 passed by S.D.O., Rajgarh (Churu) ('S.D.O.'), whereby, the Issue Nos.8 and 9 framed in the suit have been decided against the petitioners and Judgment dated 15.11.1994 passed by the Board of Revenue, Ajmer ('Board'), whereby, the revision filed by the petitioners against Order dated 28.01.1987 has been rejected. 2. The present litigation has got a chequered history, inasmuch as, the first suit between the parties was filed in the year 1955 and ever since the parties through generations are in litigation; the dispute in the present suit pertains to the property of one Tej Singh, who died issue less; the dispute is among the sons of Ganga Singh brother of said Tej Singh; while Pabudan Singh and Birju Singh are on the one side, the legal re-presentatives of third brother Sheobux Singh ate on the other side; the property in dispute is a land situated in village Niyagli; in the present Suit No. 26/1984 filed by Pabudan Singh and others, on objection raised in the Written statement, the S.D.O. framed two preliminary issues, which read as under:- " rudh uEcj 8%& vk;k okn flfoy izfdz;k lafgrk ds vkns'k 2 fu;e 2 rFkk /kkjk 11 ds Li"Vhdj.k la[;k 4 ds vUrxZr [kkfjt fd, tkus ;ksX; gS\ &&izfr0 rudh uEcj 9%& vk;k oknhx.k okn izLrqr djus ds vf/kdkjh ugha gS &&izfr0 " 3. After hearing the parties, the S.D.O. came to the conclusion that the Explanation IV to Section 11 C.P.C. applies to a case where Section 11 applies, when Section 11 itself is not applicable, Explanation IV does not apply; the defendants have failed to prove that the suit was barred under Order 2, Rule 2 C.P.C. and decided Issue No. 8 against the defendants-petitioners; on Issue No. 9 teed on the contention raised in the written statement, the S.D.O. came to the conclusion that the suit was maintainable. 4. In the Revision Petition, the Board came to the conclusion that the previous suit of the present suit was founded on different cause of action and, therefore, was not barred by res judicata and, consequently, dismissed the Revision Petition; whereafter, Review Petition was also filed by the petitioners, which was also rejected by Order dated 3.4.1997. 5. 4. In the Revision Petition, the Board came to the conclusion that the previous suit of the present suit was founded on different cause of action and, therefore, was not barred by res judicata and, consequently, dismissed the Revision Petition; whereafter, Review Petition was also filed by the petitioners, which was also rejected by Order dated 3.4.1997. 5. It is submitted by learned Counsel for the petitioners that the respondents/their predecessors Pabudan Singh and Birju Singh had filed Civil Suit No. 179/1955 before the Civil Judge, Churu, which suit was dismissed on 30.5.1957, whereafter, another Suit No. 75/1964 was filed in the Court of Senior Civil Judge, Churu for declaration, which was dismissed on 27.9.1965; whereafter a Revenue Suit No. 53/1966 was filed before the S.D.O., which suit was dismissed as abated on 9.5.1984 and during the pendency of the Suit No. 53/1966 the present Suit No. 126/1984 was filed; it was submitted that all the pleas and the cause of action raised in the present suit had already been taken/should have been taken by the respondents right from the year 1955 before the Civil Court and Revenue Court and, therefore, the present suit was barred under Explanation IV to Section 11 C.P.C., Order 2, Rule 2 C.P.C. and Order 22, Rule 9 C.P.C. and, therefore, the S.D.O. as well as Board fell in error in deciding Issue Nos. 8 and 9 against the petitioners; it was submitted that both the authorities fell in error in misconstruing the contents of petitioners' written statement for the purpose of deciding the issues against the petitioners and without taking into consideration the relevant facts and the law applicable have decided the issues against the petitioners and, therefore the same deserves to be reversed and the suit filed by the defendants deserves to be dismissed. 6. Learned Counsel for the respondents supported the orders impugned; it was submitted that from the admission of the petitioners, it is apparent that the present suit has been filed by the petitioners on a fresh/different cause of action and, therefore, the dismissal of the earlier suits are of no consequence and, therefore, the orders impugned do not call for any interference. 7. 1 have considered the rival submissions made by learned Counsel for the parties and have perused the material placed on record. 8. 7. 1 have considered the rival submissions made by learned Counsel for the parties and have perused the material placed on record. 8. As noticed hereinbefore, the parties are litigating qua the legacy of one Tej Singh son of Bagh Singh, uncle of Sheobux Singh; Pabudan Singh and Birju Singh all sons of Ganga Singh, brother of Tej Singh, who died issueless; Pabudan Singh and Birju Singh filed a Suit No. 179/1955 before the Civil Judge, Churu for declaration against petitioners, children of Sheobux Singh that each of the plaintiff is entitled to 1/3 landed property of deceased Tej Singh. 9. The suit was contested and it was claimed that partition took place between the parties and the plaintiffs separated from the joint family and Tej Singh remained joined with Sheobux Singh till his death and after his death the property of Tej Singh passed to the defendants by survivorship; after the issues were framed, the Trial Court decided all the issues and came to the following conclusion on issue pertaining to the relief:- "By the findings on the above issues it is clear that the plaintiffs have not cleared in their plaint how they are entitled to the land of Tejsingh. In the plaint the land of Tejsingh has also not been clearly specified. The land is neither specified in the quantity nor by survey numbers. It is also not clear the basis on which the plaintiffs seek to have the share in the land as prayed for in the plaint. It was for the plaintiffs to have cleared the whole position but they have not done in the instant case. Even the plaint itself is not clear in this connection. The plaintiffs' suit deserves to be dismissed. Looking the circumstances of the case the parties should be left to bear their own cost." 10. It would be pertinent to notice that the issue relating to jurisdiction of Civil Court was decided in favour of the plaintiffs holding that the suit was maintainable. 11. The plaintiffs' suit deserves to be dismissed. Looking the circumstances of the case the parties should be left to bear their own cost." 10. It would be pertinent to notice that the issue relating to jurisdiction of Civil Court was decided in favour of the plaintiffs holding that the suit was maintainable. 11. Whereafter, another suit was filed by Pabudan Singh and Birju Singh being Civil Original Suit No. 75/1964 seeking similar declaration to the effect that the plaintiffs were entitled to ⅔rd share in the property left by Tej Singh and for partition by metes and bounds; the Senior Civil judge, Churu, inter alia, framed preliminary issue whether the suit was barred by res judicata and after noticing that the earlier suit and first appeal arising there from had been dismissed by the Trial Court and the First Appellate Court vide its judgment dated 27.9.1965 came to the following conclusion:- "5. The decision given by this Court in the former suit has become final against the plaintiffs, and they cannot be now permitted to agitate the same matter again in the present suit, Under the circumstances, this issue is decided against the plaintiffs. 6. In view of the decision of the Issue No. 6 against the plaintiffs, their suit fails, and hence the same is hereby dismissed with costs." 12. Whereafter, again Pabudan Singh and Birju Singh filed Suit No. 53/1966 before the S.D.O., inter alia, seeking declaration that the plaintiffs were having ⅔rd share in the suit property claiming that the property in question was ancestral property of the plaintiffs and father of the defendants and the same belong to their grand-father Bagh Singh, regarding the cause of action the following averments were made:- "(10) ;g fd eqn~nb;ku us eqnk;ysfge dks vkjkth eqrftdjk fuLcr gdwd eqn~nbZ;ku Lohdkj djus vkSj tk;nkj mDr vkjkth dk'r e`rd rstflag th dks rdlhe djds 2@3 fgLlk ( vFkkZr 1@3 eqn~nbZ ua0 1 o 1@3 eqn~nbZ ua0 2 ) dks lEHkkyu o ml ij dCtk nsus ds fy, vkSj eqn~nbZ;ku dks blh dnj vkjkth eqrnkfo;k dk [kkrsnkj ekuus dk dgk rks fnukad 15@2@64 dks eqnk;ysfge ,slk djus ls lkQ bUdkj gks x;sA ;gh rkjh[k fcuk;s eq[kkler (Cause of action) gS vkSj fcuk; nkok gdwd en~nbZ;ku ds f[kykQ eqnk;ysfge gj oDr gkfly rstflag th dh e`R;q ds ckn ls gSA " 13. It would be seen that the cause of action has been indicated as from the death of Tej Singh. 14. A written statement was filed by the petitioners, inter alia, raising several objections; it appears that the suit remained pending and ultimately an Application dated 7.3.1983 was filed by the defendants, inter alia, indicating that the suit has abated on account of death of Sheobux Singh; another application was filed by the plaintiffs i.e. Pabudan Singh etc. seeking withdrawal of the suit on the ground that they have already filed another Suit No. 26/1984; the S.D.O. by his Order dated 9.5.1984 came to the conclusion that the Suit No. 53/1966 filed by the plaintiffs has abated and, consequently, dismissed the same; the application filed by the plaintiffs seeking withdrawal of the suit was also dismissed. 15. In the Suit No. 26/1984 plaintiffs Pabudan Singh and Birju Singh sought declaration of Khatedari rights, partition of the agricultural lands under Sections 'Rand 53 of the Rajasthan Tenancy Act, 1955. The cause of action indicated in lie suit reads as under:- " 11 ;g fd oknhx.k us vusd okn izfroknhx.k dks dgk fd os mDr Hkwfe esa oknh dk fgLlk Lohdkj dj ds bls fgLlkdlh vuqlkj o fdleokj ( DokfyVh okbt ) foHkkftr dj ysusa fdUrq izfroknhx.k us ,slk djus ls fnukad 25&12&1983 dks badkj dj fn;k] ;gh okndkj.k gS vkSj okn gsrq e`R;q rstflag ls oknhx.k dks izkIr gSA " 16. It would be again noticed that the cause of action indicated is death of Tej Singh and the claim made is 3/4th share in the property. 17. The defendants opposed the suit and, inter alia, raised plea regarding res-judicata etc. as noticed hereinbefore, which led to Trial Court framing ten issues and deciding Issue Nos. 8 and 9 as preliminary issues. 18. 17. The defendants opposed the suit and, inter alia, raised plea regarding res-judicata etc. as noticed hereinbefore, which led to Trial Court framing ten issues and deciding Issue Nos. 8 and 9 as preliminary issues. 18. The relevant paragraph in the written statement, which led to the S.D.O. and Board deciding the issues against the petitioners reads as under:- 16- ;g fd oknhx.k us U;k;ky; ( U;k;ky; A.C. lkgsc jktx<+ ftyk pw: ) esa e`rd ukuwflag o izfroknh la[;k 1 rk 4 o rglhynkj lkgsc jktx<+ ds fo:) eqdnek uEcj 53 lu~ 66 vuoknh ikownkuflag oxSjg cuke ukuwflag oxSjg ckn ?kks"k.kkRed o d`fi foHkktu bUgha vkjkth;kr dh ckcr is'k fd;k Fkk tk Abate gks pqdk FkkA bl ckcr mDr U;k;ky; us fnukad 9@5@84 dks vius vkns'k esa ntZ fd;k gSA ;g okn oknhx.k us fookfnr d`f"k Hkwfe;ka oknhx.k o izfroknhx.k dh eq'rjdk iSfr`d d`f"k Hkwfe crkdj rFkk fgUnq eq'krjdk [kkunku crkdj o fookfnr vkjkth;kr ck?kflag ewfje vkyk Qjhdsu ds oDr ls gksuk ntZ djds buesa viuk 2@3 fgLlk ?kksf"kr djokdj foHkktu dk vuqrks"k pkgk FkkA ;g okn oknhx.k [kkfjt gks x;kA vkSj vc oknhx.k us orZeku okn okn la[;k 53 lu~ 66 esa ntZ vk/kkjksa ls fHkUu okn dk vk/kkj cukdj dkuwu fo:) is'k fd;k gS tks os is'k djus ds fdlh Hkh izdkj ls vf/kdkjh ugha gSA bl okn esa oknhx.k vc dsoy ek= e`rd rstflag ds mRrjkf/kdkjh cu dj viuk vf/kdkj trkdj vuqrks"k pkgrs gSa tks oknk/kkj (Cause of Action) oknhx.k igyk okn fd;k ml oDr Hkh ys ldrs Fks bl izdkj ls orZeku okn esa rFk igys okn esaq oknk/kkj (Cause of Action) leku gh gS nksuksa oknksa esa oknk/kkj ;gh gS fd rst flag ds LoxZokl ds i'pkr mlds fgLls dh d`f"k Hkwfe;ka tks e`rd ukuwflag o izfroknhx.k la[;k 1 rk 4 ds uke jktLo vf/kdkfj;ksa us [kkrsnkjh esa ntZ dh gS muesa oknhx.k dk fgLlk gS bl pht dks izkIr djus ds fy, tks Hkh vk/kkj oknhx.k vius fgr esa le>rs Fks os mu lcdks okn la[;k 53 lu~ 66 esa ntZ djus pkfg, Fks vkSj tks vk/kkj ml okn esa ntZ ugha fd;s gSa muds vk/kkj ij nqckjk okn duwuu is'k ugha dj ldrs gSa dkuwuu ;gh le>k tkrk gS fd tks vk/kkj u;s okn esa ntZ fd;s gSa os iqjkus okn esa ntZ fd;s gq, le>s tkosaxsA oknhx.k dk igyk okn la[;k 53 lu~ 66 Abate gks pqdk gS blfy, gLc vkMZj 22 :y 9 tk0 nh0 ds vuqlkj mlh (Cause of Action) ij os nwljk okn dkuwuu is'k ugha dj ldrsA gLc vkMZj 2 :y 1 tk0 nh0 ds vuqlkj tks Hkh vk/kkj oknhx.k dks vuqrks"k izkIr djus ds fy, gkfly gaS os mu lcdks vius okn esa ntZ djus pkfg, vkSj /kkjk 11 Li"Vhdj.k la[;k 4 tk0 nh0 ds vuqlkj tks Hkh vk/kkj fdlh vuqrks"k dks izkIr djus ds fy, oknhx.k dks vius okn esa nsus pkfg, Fks vkSj ugha fn;s gSa os vk/kkj ml okn esa ntZA gq, gh le>s tkosaxsA bl izdkj ls oknhx.k dk ;g gLc nQk 11 Li"Vhdj.k la[;k 4 o vkMZj 22 :y 9 tk0 nh0 [kkfjt gksus ;ksX; gSA " 19. From the entire sequence of events, it is apparent that Pabudan Singh and Birju Singh have been filing repeated proceedings before the Civil Courts and Revenue Courts seeking legacy of deceased Tej Singh; the first suit was filed in the year 1955 before Civil Judge, Chum, which was rejected by the Trial Court on merits after coming to the conclusion that the Civil Court had jurisdiction to try the said suit, the Appeal filed by the plaintiffs was dismissed; whereafter, the second suit was filed in the year 1964, which was dismissed as barred by res judicata, having availed and exhausted the remedy regarding the subject-matter of the suit before the Civil Court, the plaintiffs Pabudan Singh and Birju Singh filed Revenue Suit No. 53/1966 before the S.D.O., Churu; the suit remained pending for over eighteen years and was dismissed as abated by the S.D.O. on 9.5.1984; during the pendency of the Suit No. 53/1966 another suit was filed by said Pabudan Singh and Birju Singh again seeking identical reliefs on the same cause of action. 20. The provisions of Section 11 C.P.C- deal with res judicata and read as under:- "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." Further, the provisions of Order 2, Rule 2 C.P.C. read as under:- "2. Suit to include the whole claim.-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court." Lastly the provisions of Order 22, Rule 9 C.P.C. read as under:- "9. Effect of abatement or dismissal.-(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. Effect of abatement or dismissal.-(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. (3) The provisions of Section 5 of the Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under sub-rule (2). [Explanation.-Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.]" 21. The fundamental principles, which govern Section 11 and Order 2, Rule 2 ,P.C. are that for the same cause of action and issues involving similar issues between the parties, which have been decided finally, the matter cannot be raised gain; further, the Explanation under Section 11 elaborates the said provision Ind Explanation IV, inter alia, provides that any matter, which might and ought i have been made ground of defence or attack in former suit shall be deemed to have been a matter directly and substantially be issued in such suit. 22. Similarly, Order 2, Rule 2 C.P.C. requires that the whole of the claim, which the plaintiff is entitled to make in respect of cause of action should be included and if the plaintiff omits, except with the leave of the Court, to sue for ill such reliefs, he shall not afterwards sue for any relief so omitted. 22. Similarly, Order 2, Rule 2 C.P.C. requires that the whole of the claim, which the plaintiff is entitled to make in respect of cause of action should be included and if the plaintiff omits, except with the leave of the Court, to sue for ill such reliefs, he shall not afterwards sue for any relief so omitted. In the ;resent case, the Civil Suit of 1955 specifically sought declaration regarding the share of the plaintiffs in the property of Tej Singh; suit of 1964 sought Declaration and partition of the property belonging to Tej Singh, which suits and the Appeal arising from the suit of 1955 were all dismissed and as noticed hereinbefore the issue regarding the jurisdiction of the Civil Court was held in favour of the plaintiffs and, therefore, plaintiffs Pabudan Singh and Birju Singh , cannot get out of the said decrees passed by the Civil Courts, wherein, specifically the property and the cause involved were the same as raised in the present suit and the issues are also similar being whether the plaintiffs could claim the legacy of Tej Singh. 23. Even before the Revenue Court the Suit No. 53/1966 filed by the plaintiffs was dismissed as abated and provisions of Order 22, Rule 9 C.P.C. specifically bar a fresh suit on the same cause of action, where, a suit has already abated. Though the present suit was already filed by the plaintiffs before the Suit No. 53/1966 was dismissed as abated, the plaintiffs cannot be permitted to take advantage of the said fact and to get away from the rigor of provisions of Order 22, Rule 9 C.P.C. and the suit was ex facie barred under Order 22, Rule 9 C.P.C. 24. Though the present suit was already filed by the plaintiffs before the Suit No. 53/1966 was dismissed as abated, the plaintiffs cannot be permitted to take advantage of the said fact and to get away from the rigor of provisions of Order 22, Rule 9 C.P.C. and the suit was ex facie barred under Order 22, Rule 9 C.P.C. 24. So far as the findings of the S.D.O. and the Board based on the contents of the written statement is concerned, the plea raised by the petitioners in the written statement was very specific that the plea in the present suit, which now purports to seek partition of property of Bagh Singh i.e. father of Tej Singh, the said aspect could always be raised in the earlier suits filed way back in the years 1955, 1964 and 1966 and the petitioners after having abandoned the said plea of suit property belonging to the joint family of Bagh Singh and having all along claiming the legacy of Tej Singh were not entitled to raise the said issue and the iissue was barred under Section 11 Explanation IV C.P.C. and Order 2, Rule 2 C.P.C.; both the S.D.O. and the Board by merely picking up few words from the written statement have totally misconstrued the plea raised by the petitioners and have without even considering the material available on record i.e. all the three previous proceedings initiated by the plaintiffs Pabudan Singh and Birju Singh have wrongly reached a conclusion that the suit was not barred under Section 11 C.P.C., Order 2, Rule 2 C.P.C. and that the dismissal of Suit No. 53/1966 as abated had no effect on the present suit.In view of the above discussion, the finding of S.D.O. and Board on issue Nos. 8 and 9 is reversed and both the issues are decided against the plaintiffs and as a consequence the Suit No. 26/1984 filed by them before S.D.O., Churu is, therefore, dismissed.Consequently, the Writ Petition filed by the petitioners is allowed in above terms.Petition allowed. *******