JUDGMENT Kaul, J. - This is a Defendant's appeal in a suit for possession of Abadi ahata No. 36 in village Sanni. The material facts are as follows: Respondent No. 1, Mahant Hari Saran Das, who was the Plaintiff in the trial Court, is the proprietor of village Sanni. The ahadi of village Sanni stands on plot No. 410. Abata No. 36 forms part of this plot. Mahant Hari Saran Das instituted the suit, which has given rise to this appeal on the allegation that he was the owner of plot No. 410, including ahata No. 36. That the said ahata constituted a public path way. That Ajodhia and Nadeshwar (who were impleaded as Defendants) had taken wrongful possession of the same by constructing a chabutra and two charhis over it. It was further alleged that a wall and a him tree, which stood on ahata No. 36, also belonged to the Plaintiff. He accordingly prayed fur possession over the disputed land by removal of the chabutra and the charhis. 2. The Defendants denied that the Ahata in question constituted a path way. With regard to the well and the him tree, it was contended that they belonged to Ajodhia Defendant No. 1. It was further averred that the land in suit formed part of the Defendant's sahan darwaza and that they had a right to construct a chabutra over it. A plea of limitation long possession of the disputed land by the Defendant was also raised. 3. By way of reply to this defense the Plaintiff urged that a decree which his predecessor had obtained earlier against Defendant No. 1 Acadia when he attempted to construct two charhis on ahata No. 36 operated as res judicata. 4. The trial Court held that the ahata in question did not constitute a public pathway, that the Defendants did not dispossess the Plaintiff as alleged, that the land, in suit constituted the Defendants sahan darwaza, that the suit was within time and that the previous decision did not operate as res judicata. It dismissed the Plaintiff's suit. On appeal by the Plaintiff the learned Civil Judge, disagreeing with the trial Court held that the previous decision operated as res. judicata, that the ahata did not constitute the Defendant's sahan darwaza and that the constructions in question were liable to removal. It dismissed the Plaintiff's suit. On appeal by the Plaintiff the learned Civil Judge, disagreeing with the trial Court held that the previous decision operated as res. judicata, that the ahata did not constitute the Defendant's sahan darwaza and that the constructions in question were liable to removal. He set aside the judgment of the trial Court and decreed the suit. Nandeshwar, who was Defendant No. 2 in the trial Court, acquiesced in this judgment. Ajodhia, however, filed this second appeal. He died since the appeal was filed and is now represented by his four sons and widow who are bis legal representatives. 5. It was contended by the Learned Counsel for the Appellant that the decision of the learned Civil Judge that the previous decree obtained by Mahant Sant Rain Das against Ajodhia operated as res judicata was erroneous. He further contended that the finding of the learned Judge that the land in question did not constitute the sahan darwaza of the Defendants was vitiated because of his erroneous conclusion with regard to the question of res judicata and on account of his having relied on evidence which was inadmissible. I wilt take up each of these points separately. 6. It appears that in January, 1921, the Plaintiff's predecessor-in-interest, Mahant Sant Ram Das, brought a suit against Ajodhia for two charkis which he had constructed on ahata No. 343. The plaint alleged that the ahata in question belonged to the Plaintiff and was in his possession and that it constituted a pathway and the construction of the charhis constituted an obstruction to its users as such. He prayed for actual possession of the land on which the two charhis were constructed. No defense was filed by Ajodhia. Ex. 2 shows that he appeared before the Court and admitted the claim. He stated that he had constructed the charhis complained of, but added that he had removed them. On this admission, the following decree was passed: Let a decree for possession of the land in suit be passed. The Defendant to remove the charhis if still standing within a fortnight. The Plaintiff would get his costs. 7. It was contended by the Appellant's Counsel that as it was a consent decree the principle that of constructive res judicata did not apply to it. The Defendant to remove the charhis if still standing within a fortnight. The Plaintiff would get his costs. 7. It was contended by the Appellant's Counsel that as it was a consent decree the principle that of constructive res judicata did not apply to it. At the most it could operate as res judicata only in so far as the Plaintiffs claim to the site of the charhis which were complained of in the previous suit was concerned. A copy of the plaint in the previous suit, including a sketch map showing the site of the charhis complained of which formed part of the plaint, has been produced in this case. It is marked Ex. 1. A reference to the plaint and the sketch map makes it clear that the only dispute in that case related to the site of the two charhis which were indicated on the map by letters. It is true that the Plaintiff's right to have the charhis removed was based on the allegation that he was the owner in possession of ahata No. 343 whereof No. 36 formed part. There were no other pleadings except the plaint. According to the learned Civil Judge because the Plaintiff in the previous suit averred that he was the owner of the whole ahata No. 36, and the Defendant admitted his claim therefore, though the relief in that suit was claimed only in respect of a very small portion of the ahata, namely the land covered by the two charhis, the Defendants could not in the present suit, on the principle of constructive res judicata dispute the Plaintiff's title to any portion of ahata No. 36. I am clear that the learned Judge is in error in taking this view. A decision operates as res judicata only in respect of matters that it decides It is true that in the present suit the Plaintiff had averred that be was owner in possession of the entire ahata No. 36, but the actual land in dispute was only a small portion of that ahata. What the Defendant admitted was the Plaintiffs title and right to possession of the site of the two charhis in that abate. It was laid down by Wood V.C. in Gouchar v. Claytion 84 L.J. Ch 239 that a judgment given by consent when there are no pleadings in action does not operate as res judicata. What the Defendant admitted was the Plaintiffs title and right to possession of the site of the two charhis in that abate. It was laid down by Wood V.C. in Gouchar v. Claytion 84 L.J. Ch 239 that a judgment given by consent when there are no pleadings in action does not operate as res judicata. In order to effect an estoppel it was necessary that it should appear on record that the question had been put in issue. Following this decision it was held by Madhavan Nair J. in Govinda Krishna Yachendrulo Varu Bahadur Vs. Venkata Subbiah, AIR 1929 Mad 694 that where in a prior suit claiming certain amount on account of a certain cases Defendants appeared in person, filed no written statement and simply confessed judgment whereupon a decree was passed against them, the decision did not preclude; the party from disputing in a subsequent suit the right of the party to levy cases. Section 11 is not strictly applicable to can sent decrees because it applies in terms only to what has been heard and finally decided by a Court. But a judgment by consent raises an estoppels between the parties as much as a judgment in a decided case. As observed by Chitaley in his note 114 on Section 11 an estoppels by consent decree can arise only when the question raised in the subsequent suit was present to the minds of the parties and was actually dealt with by the consent decree. The question in all such cases, the learned author says, would be whether the parties did intend that the question at issue should be finally settled between them by the consent decree and whether the consent decree did actually settle that question. In order to effect an stopple it is also necessary that it should appear on record that the question had been put in issue. The same is the law in England. See Halsbury's Laws of England, Hailsham's edn. Vol. 13, page 443, paragraph 498, where the law is thus stated: Where, however, the former judgment was a judgment by default, and the Plaintiff has delivered no pleading, the estoppels is limited to that appears on the face of the judgment itself. The same is the law in England. See Halsbury's Laws of England, Hailsham's edn. Vol. 13, page 443, paragraph 498, where the law is thus stated: Where, however, the former judgment was a judgment by default, and the Plaintiff has delivered no pleading, the estoppels is limited to that appears on the face of the judgment itself. On the same principle a Defendant who has consented to judgment before delivery of any pleading is not stopped as against the Plaintiff form subsequently setting up matters which might have constituted a defense, because they have never been in issue; but it is otherwise with a Defendant who has consented to judgment after pleading in his defense the matters which he seeks to set up in the latter proceedings. 8. Applying these principles to the facts of the present case we find that though the Plaintiff in the previous suit averred that he was the owner in possession of the entire ahata No. 36, the actual dispute was confined to only that portion of the ahata on which the two charhis were constructed. The Defendant Ajodhia confessed judgment without filing any written statement. It cannot in these circumstances be taken that be admitted the Plaintiff's right and title to any land other than that on which the two complained of charhis were constructed. Nor could the Court by an application of the principle of constructive res judicata be deemed to have decided the Plaintiff's right and title to such land. The Appellants contention, therefore, with regard to the finding of the lower appellate Court on the question of res judicata must prevail. 9. This does not however, entitle him to ask for a dismissal of the Plaintiff's suit. It is not disputed that the Plaintiff is the proprietor of the village and as such owner of the village sine including ahaia No. 36. He is presumably in possession of the same as proprietor. The Defendant Appellant can ask for a dismissal of the Plaintiffs' suit only if he can make out his right to remain in possession of this land. A reference to his pleadings and the statement made by his counsel before the trial Court on the 3rd February, 1940, shows that he did not claim any proprietary title in the land. The Defendant Appellant can ask for a dismissal of the Plaintiffs' suit only if he can make out his right to remain in possession of this land. A reference to his pleadings and the statement made by his counsel before the trial Court on the 3rd February, 1940, shows that he did not claim any proprietary title in the land. His decree was the land in suit is my sahan darwaza and appertains to my house and the Plaintiff therefore cannot get a decree for possession. 10. Whether the land constituted the Defendant's sahan darwaza or not was a question of fact. The learned Civil Judge as found this point against the Appellant. Ordinarily it would not be open to him to challenge it in second appeal. It was contended, however, by Mr. Haider Husain that the learned Civil Judge has relied on inadmissible evidence in coming to this conclusion and therefore his finding was vitiated and can be set aside in second appeal. It is true that the learned Civil Judge relied for his conclusion mainly on the inference which he drew from the sketch map which was filed with the plaint in the previous suit Ex. 1. This does not show the existence of any chabutra or of a charhi except the two which had given rise to that action. The non-existence of these constructions as appears from the map materially influenced the learned Judge in coming to the conclusion that the land in question did not constitute Ajodhia's sahan darwaza. It was contended by Mr. Hyder Husein that the map which formed part of the plaint constituted no more than an admission of the Plaintiff in his own favor, and so could not be relied upon by him. In the first place I am unable to agree with the Learned Counsel that the fact of the non-existence of any charhis (other than the two complained of in the previous suit) or the chabutra which appears from that naksha can be taken to be an admission of the Plaintiff's predecessor in bis own favor. In the first place I am unable to agree with the Learned Counsel that the fact of the non-existence of any charhis (other than the two complained of in the previous suit) or the chabutra which appears from that naksha can be taken to be an admission of the Plaintiff's predecessor in bis own favor. This is a fact appearing from that naksha, Assuming, however, that the map is an admission of the Plaintiff's processors in his own favor, it could be proved by the Plaintiff: if it was relevant otherwise than as an admission That no charhis other than those complained of in that suit, or the chabutra now in question, appear from this map to have existed at that time makes it highly improbable that the charhis and his chabutra have been in existence for the last 45 years as alleged by the Defendants. This would be relevant u/s 11 of the Indian Evidence Act and can be taken into consideration by the Court otherwise than as an admission. In this view of the matter the second contention urged on behalf of the Appellant cannot be accepted. It has been found as a fact that the land in dispute does not constitute the Defendants, sahan datwaza. This is a finding of fact and cannot be challenged in second appeal. 11. The result therefore is that the appeal tails at d is dismissed with costs.