SHINGHAL, J.—The defendants have been unsuccessful in both the courts below and have filed this appeal from the appellate judgment and decree of the District Judge of Ajmer dated July 22, 1961 in these circumstances. 2. The suit house is situated in Ajmer. Plaintiff Durga Prashad and pro-forma-defendant Raghunath Agarwal purchased that house from Mrs. S.R. Smith for Rs. 5,000/- under sale-deed Ex. A/1/5/5 dated October 4, 1946. Thereafter Durga Prashad and Raghunath Agarwal purchased a two-third share in the same house from G. M. Peters & G. V. Peters on November 9, 1946, for Rs. 5,000/- under sale-deed Ex. 6. Mohanlal and others, the contesting defendants, filed civil suit No. 67 of 1947 on February 5, 1947, laying a claim for pre-emption in respect of the sale made by Mrs. S. H. Smith. The suit was decreed in favour of the pre-emptors by judgment Ex. A. 1/5/1 dated July 33, 1951 which became final as no appeal was filed against it. The pre-emptors therefore became entitled to substitution in place of the present plaintiff and Raghunath Agarwal on payment of Rs. 5000/-. During the pendency of that suit, contesting defendants Mohanlal and others instituted another suit (No. 825 of 1947) for pre-emption on November 6, 1917, in respect of the sale made by C.M. Peters and G.V. Peters under sale-deed Ex. 6. That suit was also decreed by the trial court on 23-7-1951 and the the pre-emptors were held entitled to substitution on payment of Rs. 593/-, which was held to be the consideration for the sale. Ex. 2 is the judgment of the trial court in that case. Durga Prashad and Raghunath Agarwal (the present plaintiffs) felt aggrieved and filed an appeal which was decided by the learned District Judge of Ajmer by his judgment Ex.4 dated March 27, 1953. He upheld the claim for pre emption on payment of Rs. 5,000/- instead of Rs. 500/- and directed that if that sale price was not paid, the suit for pre-emption would stand dismissed. In the mean-time, Mohanlal and others, the contesting defendants in the present case, applied for execution of the two decrees which had been passed by the trial court on July 23, 1951 under judgments Exs. A. 1/5/1 and 2, and deposited Rs. 5,000/- in pursuance of the first judgment and Rs. 500/-, for the second judgment. In the mean-time, Mohanlal and others, the contesting defendants in the present case, applied for execution of the two decrees which had been passed by the trial court on July 23, 1951 under judgments Exs. A. 1/5/1 and 2, and deposited Rs. 5,000/- in pursuance of the first judgment and Rs. 500/-, for the second judgment. The execution court rejected the application for stay of the execution proceedings even though the appeal of the present plaintiffs against the trial courts judgment Exhibit 2 was pending before the District Judge. Ultimately the execution court took the view that as the tenant who was occupying the entire suit house had attorned to the pre-emptors by admitting them as his landlords, there was nothing left for execution. The execution proceedings were therefore recorded in full satisfaction. As has been stated, the judgment (Ex. 4) of the court of first appeal in suit No. 825 of 1947 was pronounced on March 27, 1953 by which the claim for pre-emption was decreed on payment of Rs. 5,000/-. But the pre-emptors did not deposit the sum of Rs. 5,000/- so that their suit stood dismissed in default of that deposit. When the plaintiff found that this was so, he instituted the present suit on July 14, 1955 claiming that he and Raghunath Agarwal were the owners of the two-third portion of the suit house which they had purchased from the Peters brothers because the present contesting defendants did not pre-empt the sale in terms of the decree of the appellate court by paying Rs. 5,000/-. The plaintiff therefore sued for a partition of the two-third share purchased by him and the proforma-defendant, and for its possession and rendition of accounts. Thus far the facts are not in dispute. 3. A perusal of the plaint shows that the plaintiff specifically took the plea that the suit house was the property of Mrs. S.N. Peters, C.M. Peters and G.V. Peters, the daughter and sons of David Peters. He also pleaded that even though Mrs. S.M. Smith sold the house by the sale-deed (Ex. Al/5/5) dated Oct. 3. A perusal of the plaint shows that the plaintiff specifically took the plea that the suit house was the property of Mrs. S.N. Peters, C.M. Peters and G.V. Peters, the daughter and sons of David Peters. He also pleaded that even though Mrs. S.M. Smith sold the house by the sale-deed (Ex. Al/5/5) dated Oct. 4, 1946 to him and the proforma defendant, she was in fact the owner of only one-third share in the house while the remaining two-third share belonged to her brothers G. M. Peters and G. V. Peters and that two-third share of the Peters brothers was therefore purchased by him (plaintiff) and the proforma-defendant on November 9, 1946. After stating the fact that the claim of the contesting defendants to pre-emption in their suit No, 825 of 1947 stood dismissed because of non-payment of the sale price in terms of the decree of the lower appellate court, it was pleaded that the plaintiff and the pro-forma defendant continued to be the owners of the two-third share while the contesting defendants had only the remaining one-third share of Mrs. S. N. Smith. As the defendants were realising the rest of the property, the plaintiff prayed for partition, possession and rendition of accounts. 4. The contesting defendants admitted the sale made by Mrs. S. N. Smith, but pleaded that she had sold the entire house to the plaintiff and the proforma-defendant, as its absolute owner, and denied that the Peters brothers had a two-third share in it. It was thus the main line of defence in the written statement that the contesting defendants were the absolute owners of the suit house by virtue of their substitution as the vendees of sale-deed Ex. A. 1/5/5 It was also pleaded that the suit was bad for non-joinder of Mrs. S.N, Smith, G.M. Peters and G.V. Peters. Further, it was pleaded that the plaintiff was estopped from raising the suit because of the bar of res judicata. Nine issues were framed in the trial court, which decreed the suit by its judgment dated December 11, 1958. The contesting defendants filed an appeal, but as it has been dismissed by the impugned judgment of the learned District Judge dated July 22, 1961, they have preferred the present second appeal. 5. It has been argued by Mr. Nine issues were framed in the trial court, which decreed the suit by its judgment dated December 11, 1958. The contesting defendants filed an appeal, but as it has been dismissed by the impugned judgment of the learned District Judge dated July 22, 1961, they have preferred the present second appeal. 5. It has been argued by Mr. Bhandari, learned counsel for the defendants-appellants, that the impugned judgment has been vitiated because it contains some incorrect facts and that it is necessary for this court to go into the controversy afresh in this second appeal. The learned counsel has pointed out those portions of the judgment of the lower appellate court which are factually incorrect, and Mr. H. G. Jain, learned counsel for the respondents, has frankly conceded that this court may take the view that it is not bound by the findings of fact of the lower appellate court and decide the case afresh. I have therefore heard the learned counsel for the parties on the entire case. 6. It has been argued by the learned counsel for the appellants that even though the question of title is not normally open, for investigation in a suit for preemption, in the present Case such a question assumed importance because it arose for consideration in pre-emption suit No. 67 of 1947 and that the finding of the trial court regarding the ownership of Mr. S. N. Smith should operate as res judicata so far as the claim in the present suit is concerned and that both the courts erred in taking a contrary view. The learned counsel has cited Nand Kishore vs. Shri Nath(l) in support of his contention. 7. In order to appreciate the argument of the learned counsel, I have gone through judgment Ex. A. 1/5/1 in suit No. 67 of 1947. It contains the following observation in connection with the finding on issue No.(3), "I therefore decide the issue against the defendants as there is nothing to show that Mrs. Smith was not the absolute owner of the entire property". The argument of res judicata rests on this observation. The record shows, however, that the parties did not join issue on the question of title of Mrs. S. H. Smith in the suit house or her share in it. Smith was not the absolute owner of the entire property". The argument of res judicata rests on this observation. The record shows, however, that the parties did not join issue on the question of title of Mrs. S. H. Smith in the suit house or her share in it. They were not therefore required to lead their evidence in that regard, and there was no occasion for the trial court to record a finding on it. In fact issue No. (3) related to the question whether the suit was bad for the non-joinder of G. M. Peters & G.V. Peters, and a perusal of the decree-sheet shows that both the Peters Brothers were added as defendants by an order of the trial court dated July 8, 1947, soon after the institution of the suit, and so that issue lost its utility and did not require a finding. It would therefore be an irresistible conclusion to hold that any finding contained in judgment Ex. A. 1/5/1 on issue No,(3) on the extent of Mrs. Smiths ownership of the suit house was wholly unnecessary. To say the least, such a finding could not be said to relate to any matter directly and substantially in issue between the parties within the meaning of sec. 11 of the Code of Civil Procedure. The above mentioned observation of the trial court can therefore be of no avail to the appellant because a matter cannot be said to be heard and finally decided when the finding on it is not at all necessary for the decision of the case. I am fortified in this view by the decisions in Asrar Ahmed vs. Durgah Committee Ajmer(2), Official Assignee Bombay vs. Madholal Sindhu(3), and Phoola Bhanna vs. Rekha Deva(4). 8. Besides, it is also a matter of importance that the defendants did not withdraw their second suit (No. 825 of 1947) even after judgment Ex. A. 1/5/1 in their suit No. 67 of 1947 had become final after the expiry of the period of appeal. As has been stated, the trial court passed a decree in the second suit for pre-emption on payment of Rs. 500/- and the vendees (present plaintiff and Raghunath) therefore preferred an appeal to the District Judge. That appeal was decided after more than 1-1/2 years, but the pre-emptors did not withdraw the second suit on the strength of judgment Ex. As has been stated, the trial court passed a decree in the second suit for pre-emption on payment of Rs. 500/- and the vendees (present plaintiff and Raghunath) therefore preferred an appeal to the District Judge. That appeal was decided after more than 1-1/2 years, but the pre-emptors did not withdraw the second suit on the strength of judgment Ex. A. 1/5/1 and took the chance of a favourable judgment in that suit (No. 825 of 1947) also at the hands of the appellate court. The appellate court therefore heard and decided the case. A perusal of its judgment (Ex. 4) shows that the court clearly took the view that it was "beyond the scope of a pre-emption suit to go into the question whether or not a vendor had title to property sold by him" and held that it was therefore "not necessary to go into the extent of the share of Mrs. S. H. Smith in the property." It would thus appear that the later of the two judgments between the parties clearly decided that the question of title or the extent of Mrs. Smiths share in the suit house was not required to be decided; and it was left undecided. The defendants are therefore bound by that later judgment (Ex. 4) dated March 27, 1953 because it is well settled that out of two conflicting judgments or decrees inter partes in the same cause, the later shall prevail on the principle that the previous judgment or decree should be taken as pleaded in the later suit and not given effect to. Rajni Kumar Mitra vs. Ajmaddin Bhniya(3), Moturi Seshayya vs. Sree Rajah Venkatadri Sppa Row Bahadur, Zamindar(6) which was followed in (Appla) Ruktmani Ammal vs. Kuttuvava Narasiman Iyer (7), Mt. Kaniz Fatma vs. Yad Husain (8), Kunwar Muhammad Ubaid-Ullah Khan vs. Kunwar Muhammed Abdul Jalil Khan(9) and Hiralal Singh vs. Matukdhari Singh(lO) which followed Rajani Kumar Mitra vs. Ajmaddin Bhuiyya(5), Padmanabhan Krishnan vs. Mathevan Pillai Kesava Pillai(ll), Kalisetti Subharayudu vs. Pagadala Balaramayya(12), and Mundan Raman vs. Kochakunju Naryanan(13) which was followed in Davaru Vasudevaru, vs. Ramana Pillai Neelakanta Pillai(14) and Damodar Rao vs. Bhima Rao(15). 9. It may also be pointed out that when judgment Ex. 9. It may also be pointed out that when judgment Ex. A. 1/5/1 of the trial court dated July 25, 1951 had become final as aforesaid, the present defendants should have set-up the plea of res judicata in respect of the observation of the trial court in their favour extracted above if they thought that it was a finding which fell within the purview of sec. 11 of the Code of Civil Procedure. It is however a matter of much significance that the defendants did not choose to raise such a bar during the course of the hearing of the first appeal in suit No. 825 of 1947 and allowed appellate court to decide the question afresh. It is therefore apparent that the present defendants waived the plea of res judicata, even if it is assumed that such a plea was available to them on the basis of the above mentioned observation of the trial court, for it is quite open to a party to waive the bar of res judicata as it does not affect the jurisdiction of the court. It would be sufficient for me to refer to Rajani Kumar Mitra vs. Ajmaddin Bhuiya(5) for this view, which was followed in Nagenbala Dasee vs. Sridam Mahata(16). Reference may also be made to Moturi Seasaya vs. Sree Rajah Venkatadri Appa Row Bahadur, Zamindar(6) in which also a similar view has been taken. Mr Bhandari has no doubt invited attention to Sri Raja V. S. K. Y. Bahadur Varu vs. Province of Madras(7) in which it has been observed that the plea of res judicata cannot be waived even by consent of the parties, but it appears that the decision of the same court in Moturi Sessayya vs. Sree Rajah Venkatadri Appa Row Bahadur Zamindar(6) was not brought to the notice of their Lordships even though it was a division bench decision. The fact therefore remains that the plea of res judicata having been waived by the present defendants of their own free will and choice, it cannot be said that they are entitled to raise it in the present suit. 10. Even otherwise, a perusal of judgment Ex. A. 1/5/1 shows that the observation of the trial court that there was nothing to show that Mrs. 10. Even otherwise, a perusal of judgment Ex. A. 1/5/1 shows that the observation of the trial court that there was nothing to show that Mrs. Smith was not the absolute owner of the entire property, was a cryptic observation which did not follow from the context and decided nothing. The reason is that while considering issue No. (3), the court first dealt with the plea of non-joinder and then referred to the fact that the plaintiff had filed another suit for pre-emption in respect of the sale made by the Peters. After stating this, the court observed that no question of the suit being bad for nonjoinder arose in the case, and followed this up by the observation that there was nothing to show that Mrs. Smith was not the absolute owner of the entire property, and decided the issue against the defendants. It would thus appear that the observation did not follow from the context and, as has already been shown, it was wholly uncalled for because issue No. (3) did not relate to the question of ownership and was not required to be decided for the further reason that the two Peter brothers had already been impleaded as defendants soon after the institution of the suit. Moreover, the cryptic observation was made by way of a reason for the finding, and reasons are not res judicata. 11. It would thus appear that there is no force in the argument of Mr. Bhandari to the contrary. 12. The only other point which has been argued by Mr. Bhandari is that the plaintiff has not succeeded in proving the C. M. Peters and C. V. Peters owned a two-third share in the suit house. The learned counsel has submitted that the whole of the suit bungalow belonged to Mrs. S.M. Smith, the whole of it was sold by her under sale-deed Ex. A. 1/5/5 to the present plaintiff and proforma-defendant Raghunath Agarwal, and that as the contesting defendants have already succeeded in their suit for the pre-emption of that sale, they have become the owners of the entire property by substitution in place of the original vendees as has been held in Gobind Dayal vs. Inayatullalah (18) and Bishan Singh vs. Khazan Singh (19). 13. 13. It is true that pre-emption is a right of substitution, and not a re-purchase for, as has been observed in the classic judgment in Govind Dayals case (18), the pre-emptor has a right to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title so that "it is, in effect, as if in a sale-deed the vendees names were rubbed out and the pre-emptors name inserted in its place." It is therefore not necessary to decide the question of title, and the pre emptor is merely allowed to step into the shoes of the vendee. He gets nothing more or less than what original vendee obtained under the impugned sale, so that the question of title can always be agitated even after the pre-emptor has succeeded in his claim for substitution. It was therefore open to the plaintiff to agitate the question of his ownership to the extent of the two-third share in the suit house inspite of the decisions in the two pre-emption suits. Hut the question is whether he has succeeded in proving the title? 14. In order to arrive at a decision, it is necessary to look to the pleadings of the parties before considering their evidence. It was pleaded in paragraph 1 of the plaint that the suit house was the property of Mrs. S.H. Smith, CM. Peters and G.V. Peters, daughter and sons of David Peters. It was then alleged in paragraph 2 that even though Mrs. Smith had sold the bungalow to the plaintiff and the proforma-defendant calling it her own absolute property, she was in fact the owner of one-third share only, while the remaining two-third share belonged to the Peters brothers. The contesting defendants pleaded in their defence that the suit house was the property of Mrs. S.M. Smith and that she had sold the whole of it to the plaintiff and defendant No. 6 as its absolute owner. It was not however specifically denied that Mrs. S.M. Smith and G.M. Peters and G.V. Peters were not the daughter and sons of David Peters. On the other hand it appears that for this reason the defendants took the further plea that the suit was bad for the nonjoinder of Mrs. Smith and the two Peters brothers. It was not however specifically denied that Mrs. S.M. Smith and G.M. Peters and G.V. Peters were not the daughter and sons of David Peters. On the other hand it appears that for this reason the defendants took the further plea that the suit was bad for the nonjoinder of Mrs. Smith and the two Peters brothers. They did not however plead that there were any other heirs to the property. In fact a perusal of the written statement shows that it was not pleaded by the contesting defendants that there were any other sons or daughters who were the owners of the property in addition to Mrs. Smith and the two Peters brothers, so that the case proceeded to trial on the assumption that Mrs. Smith and her two brothers G.M. Peters and G.V. Peters were the only descendants of their parents, and the dispute regarding the ownership ranged between the three of them. A perusal of the plaint (Ex. 1) in suit No. 825 of 1947 also shows that the claim in that suit was limited to the question whether the Peters brothers were really the owners of the two-third share sold by them under sale-deed Ex. 6, or whether the property belonged exclusively and wholly to Mrs. S.H. Smith. Similarly, a perusal of judgment Ex. 4 shows that the controversy before the learned Judge of the lower appellate court centred mainly round the question whether the Peters brothers were entitled to sell the two-third share under sale-deed Ex. 6. The point for decision therefore is whether the plaintiff has succeeded in proving that he and proforma-defendant Raghunath became the owners of the two-third share under sale-deed Ex. 6 and could sue for partition and possession, as well as mesne profits, on the strength of their title. 15. The plaintiff has stated on oath that the sale-deed (Ex. 7) of the land on which the suit house stands, is dated June 9, 1905, that the land was purchased by David Peters, the father of Mrs. S.M. Smith, that he built the suit house on the land, that he did not gift or bequeath it to any one. He has further stated that Mrs. S.M. Smith owned only one-third share in the house, while the two-third share belonged to the Peters brothers. Besides, the plaintiff has stated that there were only 3 owners of the bungalow, namely, Mrs. He has further stated that Mrs. S.M. Smith owned only one-third share in the house, while the two-third share belonged to the Peters brothers. Besides, the plaintiff has stated that there were only 3 owners of the bungalow, namely, Mrs. Smith, the sister, and her two brothers. In spite of this categorical statement of the plaintiff, no cross-examination was made in regard to the assertion about the initial ownership of David Peters, or the fact that Mrs. S. M. Smith, G. M. Peters and G.V. Peters were the only descendants who could lay claim to the suit house. No evidence has been led to the contrary and the fact therefore remains that it has been proved beyond challenge that Mrs. S.H. Smith and the two Peters brothers were the only persons who could lay claim to the suit house and no one else. 16. But the question still remains whether the Peters brothers were also the owners of the suit house to the same extent as their sister Mrs. S.M. Smith or whether the sister was its exclusive owner. In this respect the statement of defendant Mohanlal D.W. 1 is of much importance for it is, by itself, quite sufficient to show the hollowness of his claim that the suit house was the exclusive property of Mrs. S.M. Smith. Mohanlal has stated that the suit house belonged to the mother of Mrs. S. M. Smith and that the mother gave it to her by a will. The witness could not, however, stand the test of cross examination because he had to admit that he had not seen the will, or any sale-deed of the property in favour of Mrs. Smith. He also admitted that he did not care to ascertain how the house came to be the property of Mrs. Smiths mother. The statement of the defendant is therefore quite unhelpful to the defence. On the other hand, as has been stated, the plaintiff has clearly stated that the suit house belonged to David Peters who did not give it away to any one else and he has also stated that Mrs. Smith and her two brothers became its three owners in equal shares. On the other hand, as has been stated, the plaintiff has clearly stated that the suit house belonged to David Peters who did not give it away to any one else and he has also stated that Mrs. Smith and her two brothers became its three owners in equal shares. So in the absence of any other evidence on the record, it is not possible for me to take the view that the contesting defendants have succeeded in proving that the suit house fell to the exclusive share of Mrs. S.M. Smith when, as has been stated, it is admitted, that it was not acquired by her by purchase and the alleged will has not been proved. It is also a matter of great significance that the execution or existence of his will has not even been pleaded in the written statement, so that it is apparent that the contesting defendants did not rely on it even though the question of title was the most important question for trial in the suit. 17. In these facts and circumstances, it must be held, to say the least, that the suit house belonged either to David Peters, or Mrs. S.M. Smith, CM. Peters and G.V. Peters, or it became the property of their mother. As both the parents had died before the controversy started, it will not present difficulty if the law of succession is applied to either of the two alternatives. Sec. 37 of the Indian Succession Act provides that, in the case of Christians, if the intestate has left surviving him a child or children, but no more remote lineal descendant through the deceased child, the property shall belong to the surviving child, if there is only one, or shall be equally divided among the surviving children, namely, Mrs. S.M. Smith, C.M. Peters and G.V. Peters, each of them to get an equal share in the suit house. It therefore will follow that the plaintiff has succeeded in proving that the Peters brothers had a two-third share in the suit house. The plaintiff has therefore proved that he and Raghunath Agarwal became owners of that two-third share by purchase. 18. There is nothing wrong in the decree which has been passed in favour of the plaintiff and the legal representatives of proforma-defendant Raghunath. The appeal fails and is dismissed with costs. Leave to appeal is prayed for, but is refused.