JUDGMENT : Mohapatra, J. - This is a Defendants second appeal against the reversing judgment of the lower appellate court arising out of a suit for a declaration that Plaintiff No. 2 Dasa Padhi is the marfatdar of the deity Lakshminarayan Thakur, Plaintiff No. 1. This is based upon the position that Defendant No.1 is not the daughter of Ananda and Dasa Padhi admittedly is the nearest heir of Ananda. 2. Mr. Mitra, appearing on behalf of the Respondents, however, has taken up a preliminary point that the appeal must fail on the ground of res judicata. The facts necessary for elucidating the point of res judicata are as follows: The suit out of which the present second appeal arises is a Title Suit No. 135 of 1952 where the plain tiffs are Dasa Padhi and Lakshminarayan Thakur represented through Dasa Padhi. There was another suit No. 103 of 1952 where Plaintiff No. 1 was Chandi Thakurani, Plaintiff No. 2 was Bhagabat Gosain and Plaintiff No. 3 was Dasa Padhi. In both the suits, the Defendants are the same, and the prayer is the same, that is, be it declared that Dasa Padhi is the marfatdar which was substantially based upon the fact that Defendant No. 1 is not the daughter of Ananda. Both the suits were tried together and a common judgment followed. The trial court found that the Defendant No. 1 was the daughter of Ananda and therefore he dismissed the Plaintiff's suit. Two appeals came up before the lower appellate court. The were Title Appeal No. 50 of 1955 out of which the present second appeal arises and Title Appeal No. 51 of 1955 which was against the judgment covering Title Suit No. 103 of 1952. The lower appellate court also heard both the matters together and one judgment followed allowing both the appeals and decreed the Plaintiff's suits. But the significant feature is that the present second appeal No. 60 of 1958 is against the judgment so far as it relates to Title Appeal No. 50 of 1955 and there is no appeal against the judgment of the lower appellate court referring to title Appeal No. 51 of 1955. In my view, the preliminary objection raised by Mr. Mitra must prevail. 3. In my view, the preliminary objection raised by Mr. Mitra must prevail. 3. Even though apparently the parties seem to be deities, that is, in one suit Chandi Thakurani and Bhagabat Goswain are the Plaintiffs and in another Lakhsminarayan Thakur, but in substance, Plaintiff Dasa Padhi is the real Plaintiff in both the suits in as much as the prayer is only in respect of a declaration of marfatdari rights of Dasa Padhi alone as according to him Ananda died without any son or daughter and Dasa is his only heir. It is significant to note, the Defendants are the same and the defence also was the same. There was undoubtedly a common issue in both the cases, the substantial and direct issue being whether Defendant No.1 is the daughter of Ananda. The Defendant Appellants are now confronted with the position that inconsistent and incongruous positions will arise if the present appeal is allowed in as much as there is no appeal against the judgment of the lower appellate court in respect of Title Appeal No. 51 of 1955 where the matter is final that Defendant No. 1 is not the daughter of Ananda. Now if the present appeal is allowed, it has got to be declared that Defendant No. 1 is the daughter of Anand which is manifestly inconsistent. That apart as the issue involved is the same and this issue being a direct and substantial issue in both the suits, the relief sought being the same, that is to say, in both the suits the prayer was for a declaration of marfatdari rights of Dasa Padhi, this comes within the language of Section 11 of the Code of civil Procedure. In my view, therefore, the present appeal is hit by the mischief of res judicata and is accordingly dismissed. Plaintiff No. 2 will be entitled to costs. Appeal dismissed. Final Result : Dismissed