Judgment :- 1. Three points are urged on behalf of the appellant against whom the courts below have concurred in passing a decree for possession. The appellant is the 2nd defendant in the suit. His mother, under whom he claims, was the 1st defendant. She died pending suit, and the appellant who is her legal representative is now the sole defendant). They are: (1) that the purchase of the suit property by the plaintiff under Ext. D15 dated 8 21121 was benami for the 1st defendant; (2) that the decree for possession obtained by the defendants against the plaintiff in a prior suit, O. S.651/1123, is res judicata in their favour; and, (3) that by reason of S. SO of the Trusts Act, the plaintiff's purchase, under Ext. D15, even if for himself, must enure for the benefit of the 1st defendant. 2. The property in suit, a piece of garden land 3.17 acres in extent held under a possessory mortgage, was part of a holding of about 14 acres which the plaintiff admittedly took on lease from the 1st defendant in 1112 M. E. (1936-37). It was sold in execution of a decree obtained against the 1st defendant (among others) by some third parties; and, from the purchasers in the court auction, the present plaintiff bought it on 8-2-1121 M.E. (24-9-1945) under Ext. D15. In O. S.651 of 1123 the present defendants sued the present plaintiff for possession of the suit property and other property on the foot of the lease of 1112 M. E. (1936-37) and this suit was tried along with an earlier suit, O. S.1129 of 1122, a similar suit brought against the present plaintiff by a person to whom the 1st defendant had transferred her rights in the remaining portion of the holding. In defending that suit, the present plaintiff set up his purchase under Ext. D15 and contended that the present defendants were not entitled to recover the property since it no longer belonged to them. On this contention the following issues were joined as issues 4 and 8. Issue 4: Are the plaintiffs (the present defendants) entitled to recover the whole of the property from the defendant as sought for in the plaint? D15 and contended that the present defendants were not entitled to recover the property since it no longer belonged to them. On this contention the following issues were joined as issues 4 and 8. Issue 4: Are the plaintiffs (the present defendants) entitled to recover the whole of the property from the defendant as sought for in the plaint? Issue 8: Are the 3 acres and 37 cents mentioned in para 25 of the written statement (i. e. the property now in suit and another 20 cents of land in respect of which the present plaintiff had some similar defence) not liable to be recovered by the plaintiffs. The judgment was written in the connected suit and these two issues were considered in Para.6 thereof under issue No. 4 of that suit. The learned Munsiff who tried the suit declined to go into the defence set up by the present plaintiff, namely, that he had become the owner of the property now in suit by reason of his purchase under Ext. D15 (Ext. XIV in that suit) and decreed possession of the entire property to the present defendants, the plaintiffs therein. At the same time he said, "On the above grounds I think it is proper to direct the defendant (the plaintiff in the present suit) to file a fresh suit for recovery of the property covered by Ext. XIV (Ext. D15 here) from the possession of the plaintiffs after surrendering the same to them under the decree in this suit." The present plaintiff appealed. His appeal was dismissed. Thereupon he filed a second appeal in which he pressed for a decision on the question of his title to the 3 acres 17 cents of land now in suit and contended that the plaintiffs there (the present defendants) should not have been given a decree in respect of that land. This court dismissed the appeal and in doing so said: "Admittedly this plot too (i. e. the property now in suit) was included in the plaint lease. The appellant's contention is that the plaintiffs have lost title to this plot by subsequent proceedings ending with Ext. XIV delivery. The plaintiffs' case in regard to Ext. XIV is that the delivery was taken by the defendant who was their lessee for their benefit. The appellant's contention is that the plaintiffs have lost title to this plot by subsequent proceedings ending with Ext. XIV delivery. The plaintiffs' case in regard to Ext. XIV is that the delivery was taken by the defendant who was their lessee for their benefit. On account of the admitted fact that the plot was included in the plaint lease and the dispute referred to above, the courts below have directed that the defendant should surrender possession of the plot to the plaintiffs in this suit and that he should establish his title to it and obtain proper remedy in a fresh suit. The 2nd plaintiff too, who was present in court to-day has given a sworn statement before me to the effect that in pursuance of the lower court's direction the defendant has filed a fresh suit in the Neyyattinkara Munsiff's Court as O. S. No. 227 of 1955 for establishing his title in respect of this plot and getting the necessary reliefs and that four witnesses have already been examined in that suit. In view of these facts and circumstances there is now no necessity to go into the dispute relating to the above plot and that dispute can be safely left to be decided in the new suit." It is this new suit that we are now considering. 3. On the question of benami, there is the concurrent finding of fact of the courts below that the plaintiff's purchase under Ext. D15 was for himself and was not benami for the 1st defendant. It is however argued that this finding is vitiated by an error of law in that both the courts have ignored the effect of the documentary evidence in the case, namely, of Exts. D.1 to D7, D9, D10, D14, D16 and D17. With the exception of Ext. D14, these documents are letters written by the plaintiff to the 1st defendant on various occasions, almost all of them in his capacity as her tenant and referring among other things to the rents due. I have been taken through them and all that they show is that the 1st defendant reposed trust in the plaintiff and used to take his advice regarding the management of her affairs. That the letters do not show that, after his purchase under Ext. I have been taken through them and all that they show is that the 1st defendant reposed trust in the plaintiff and used to take his advice regarding the management of her affairs. That the letters do not show that, after his purchase under Ext. D15, the plaintiff asked for an abatement of rent is at best only a circumstance that might tend to the inference that the lease still subsisted in respect of the entire holding, in otherwords, that despite the plaintiff's purchase under Ext. D15 the 1st defendant continued to be the owner of the suit property. It is true that the courts below have not taken note of this circumstance but I do not think that the failure to do so can vitiate their concurrent finding. Nor is the inference a strong inference, for, it does not appear that the plaintiff was cross-examined on the pointer given an opportunity to explain why he asked for no abatement. 4. Ext. D14 is a reply sent by the plaintiff through a lawyer to a lawyer's notice issued by the 1st defendant before she instituted the previous suit, O. S. No. 651 of 1123. It is said that in this reply the plaintiff did not set up his title to the property now in suit. Bat the notice sent by the 1st defendant to the plaintiff has not been put in evidence so that it is not possible to say with any degree of certainty that it included the suit property within its scope. And what is more pertinent is that when in the previous suit the present plaintiff by his written statement Ext. K set up his title to the suit property on the strength of his purchase under Ext. D15, the present 1st defendant filed a rejoinder, Ext. L, in which she denied the alleged purchase (which in truth had taken place) and did not allege that the purchase was benami for her. Whatever value may be attached to the omission of the present plaintiff to claim an abatement of rent in his several letters to the 2nd defendant after his purchase under Ext. D15, and his failure to set up that title in his reply notice, Ext. D14, is more than outweighed by the 1st defendant's omission to set up her case of benami in Ext. D15, and his failure to set up that title in his reply notice, Ext. D14, is more than outweighed by the 1st defendant's omission to set up her case of benami in Ext. L wherein she denied, and falsely denied, that the plaintiff had purchased the property. It was only in the course of the trial of the previous suit that the 1st defendant thought fit to put forward her case of benami and to adduce evidence to that effect. 5. I see no reason to differ from the concurrent findings of the courts below on the question of benami and I might add that the motive set up for the benami is scarcely one to attract the sympathy of any court. It is that the purchase under Ext.D 15 was for a small sum and that therefore it was made in the name of the plaintiff so that the 1st defendant could claim a much larger sum by way of damages against her vendor who had given indemnity in respect of the title. 6. On the question of res judicata, it is true that the plaintiff put his title to the suit property by reason of his purchase under Ext. D15, which is the matter in issue in the present suit, in issue in the previous suit by way of defence to the defendants' claim for possession. And it is not disputed that there could have been no decree for possession in the previous suit except, on the finding that the defendant there (the plaintiff here) got no title by his purchase. Therefore, the decree implied a finding adverse to the present plaintiff on this issue. But then what actually happened was that the courts which tried the former suit thought, though mistakenly, that they could give the present defendants a decree for possession in the former suit without deciding the question of the present plaintiff's title by reason of his purchase under Ext. D15. And they expressly stated that they were not deciding this question but were leaving it to be decided in a fresh suit. D15. And they expressly stated that they were not deciding this question but were leaving it to be decided in a fresh suit. I do not think that the implication of the decree can prevail against the express statement that the issue which is now being pleaded as res judicata was not being decided, and it would therefore follow that the issue was not heard and finally decided so as to attract S.11 of the Civil Procedure Code. 7. It will also be recalled that the judgment of this court in the second appeal proceeded on the footing, expressly stated, that it was not necessary to go into the dispute regarding the present plaintiff's title under Ext. D15 because a fresh suit had been laid in respect of that and the dispute could be safely left to be decided in the new suit. This, it seems to me, amounts to a decision that the new suit would lie. That was a matter in issue in the previous suit since it was on the finding that a new suit would lie that this court held that it was not necessary to go into the present plaintiff's title in the previous suit. This finding, namely, that a new suit would lie is inter parties and is, I think, res judicata regarding the present plea of res judicata. 8. Another way of looking at the matter might be that, in the light of what was said by this court in the second appeal in the previous suit the decree for possession granted therein was a conditional decree subject to the decision in the new suit, namely, the present suit, so that there can be no question of the decree in the previous suit being res judicata in the present suit. 9. It would also appear that the present 2nd defendant, who was the 2nd plaintiff in the prior suit, obtained a dismissal of the second appeal therein by volunteering the statement that the defendant therein had filed a fresh suit, namely, the present suit, and that the dispute could be decided in that suit. Having done so, I should think that he is estopped from contending in the present suit that the decision in the prior suit is res judicata. 10. Having done so, I should think that he is estopped from contending in the present suit that the decision in the prior suit is res judicata. 10. The view that I have taken, that, in the face of the express refusal of the courts to go into the present dispute in the prior suit, and their express statement that the present dispute could be agitated in a fresh suit, the issue regarding this dispute cannot be said to have been heard and finally decided in the prior suit even if it be that the decree therein could properly have proceeded only on such a decision, seems to be in accord with what was held in Parsotam Gir v. Narbada Gir (26 Indian Appeals 175), Venkataratnama v. Krishnama (AIR. 1921 Mad. 21 (F. B.), Mohammad Abdul Aziz v. Gulam Julani (AIR. 1937 Mad. 709) and Bapanna v. Jaggiah (AIR. 1939 Mad. 818). But it is argued that the decision in Watson v. The Collector of Rajshahye (XIII Moore's Indian Appeals 160), Sukh Lal v. Bhikhi (ILR.11 Allahabad 187), Subbai Goundan v. Rangai Goundan (1945 Madras Weekly Notes 673) and Malaya Kumar v. Fakir Mohammad (AIR. 1947 Cal. 393) are against this view. I do not think that they are. In Watson v. The Collector of Rajshahye (XIII Moore's Indian Appeals 160) the second suit was a repetition of the first suit which had been dismissed on the merits not on withdrawal with leave of court to bring a, fresh suit on the same cause of action. The matter in dispute in the second suit had been heard and finally decided in the prior suit and was therefore clearly res judicata under S.2 of Act VIII of 1859 corresponding to S.11 of the present Code. Any reservation made in the prior suit such as that the plaintiffs would be at liberty to bring a fresh suit (which, it would appear, was the nature of the reservation actually made) could not affect the position and could not make the decision in the prior suit any the less something heard and finally decided. In Sukh Lal v. Dhikhi (ILR.11 Allahabad 187) the prior suit had been dismissed in entirety and that dismissal was on the merits so that the prior suit was one which had been heard and finally decided. In Sukh Lal v. Dhikhi (ILR.11 Allahabad 187) the prior suit had been dismissed in entirety and that dismissal was on the merits so that the prior suit was one which had been heard and finally decided. There was however the finding that the plaintiff had title to a one-third share of the property and it was said that in respect of this share he could institute a fresh suit. The fresh suit he brought was therefore a repetition of the old suit though confined to a portion of the property therein, and, the old suit having been heard and dismissed on the merits, the bar in S.11 of the Code precluding the court from trying any suit in which the matter in issue had been in issue in a former suit between the same parties and had been heard and finally decided therein, was attracted notwithstanding that the court which tried the first suit mistakenly thought that a fresh suit would lie. The position is therefore similar to that in Watson v. The Collector of Rajashahye (XIII Moore's Indian Appeals 160), and these are not cases where, as in the present case, a matter in issue in the later suit was only one of the maters in issue in the earlier suit and had been expressly left undecided in that suit. In such a case it is only the trial of that particular issue that is barred by S.11 of the Code, and that bar cannot be attracted unless that issue had been heard and finally decided in the earlier suit. In Subbai Goundan v. Rangai Goundan (1945 Madras Weekly Notes 673) there was an adjudication in the earlier proceeding on the particular matter in issue so that the issue was heard and finally decided therein. That adjudication was not affected by the court's disclaimer that it was only a prima facie determination which could be re-agitated in a subsequent suit. Hence S.11 was attracted despite the court's mistaken impression that a subsequent suit would lie. In Malaya Kumar v. Fakir Mohammad (AIR. 1947 Cal. 393) the title of the plaintiff in the subsequent suit, who was a defendant in the prior suit, was expressly put in issue in that prior suit, the issue being whether his dar-patni interest in the property had been annulled by reason of certain statutory provisions. In Malaya Kumar v. Fakir Mohammad (AIR. 1947 Cal. 393) the title of the plaintiff in the subsequent suit, who was a defendant in the prior suit, was expressly put in issue in that prior suit, the issue being whether his dar-patni interest in the property had been annulled by reason of certain statutory provisions. The trial Court held that it had been so annulled. There was an appeal and,. in the course of the argument in the appeal, it was for the first time contended that the interest held by the defendant therein was not a dar patni interest but some other interest which did not attract the statutory provisions in question. The appellate judge refused to entertain this contention on the score that it found no place in the pleadings, not even in the memorandum of appeal, but said that the defendant could bring a fresh suit for a declaration of his title on that footing. Obviously the contention was one which the defendant might and ought to have made a ground of defence in the suit, but which he did not make in the trial court and was declined permission to make in the appellate Court. Explanation.4 to S.11 was therefore expressly attracted to prevent him making that contention the basis of the subsequent suit he brought against the opposite party. It seems to me that the case was similar to that considered by the Judicial Committee in Fateh Singh v. Jagannath (AIR. 1925 Privy Council 55) and that the subsequent suit was barred for the reasons there stated by their Lordships. It is true that in the Calcutta case the learned judges purported to distinguish the decision of the Judicial Committee in Parsoiam Gir v. Narbada Gir (26 Indian Appeals 175) on the ground that "the second suit in that case was not based on the same cause of action as the earlier suit." With regard to this it is sufficient to observe that this was not the basis on which Their Lordships of the Judicial Committee chose to rest their decision. They rested it on the ground that, "it would be a contradiction in terms to say that the Court had finally decided matters which it expressly left untouched and undecided." 11. They rested it on the ground that, "it would be a contradiction in terms to say that the Court had finally decided matters which it expressly left untouched and undecided." 11. The contention based on S.90 of the Trusts Act seems to proceed on the assumption that there is an obligation on the part of a tenant to avert a sale of the leased property in execution of a decree against the landlord, an assumption for which there seems to be no basis. 12. In the result I dismiss this appeal with costs. Dismissed.