JUDGMENT - M.S. APTE, J.:---A short point which this appeal filed by original defendant No. 1, raises is as to whether the appellants contention that plaintiff had no title to the suit property is barred by res judicata. The point arises on the following facts : 2. The property is dispute in the present suit is an open plot admeasuring about 27 x 9. Plaintiff filed the present suit in which this appeal arises for recovery of possession thereof from the defendants on the allegation that this property belonged to him and that the appellant-defendant No. 1 was in possession thereof as a monthly tenant. It was stated that the lease in favour of the appellant was granted by the father of the plaintiff. 3. The 1st defendant resisted the claim by denying the allegation that he was in possession as a tenant but set up title in himself. 4. It appears that before the present suit was filed on September 3, 1964, plaintiff had filed another suit, being Regular Civil Suit No. 211 of 1956 against the defendant-appellant and in that suit the plaintiff had prayed for recovery of possession of the suit plot as well as the adjacent plot. The allegations made in that suit so far as the present suit property is concerned were that the property belonged to the plaintiff and that the defendant was in possession thereof as a tenant as has been alleged in the present case. So far as the remaining part of the suit property was concerned, the allegation was that the defendant had trespassed upon that portion of the property. 5. The defendant-appellant appears to have denied plaintiffs title in that suit to both the plots. The Court, however, found that plaintiffs title to both the plots was proved. It also found that the first mentioned plot was in possession of the defendant as a tenant but it was held that so far as this plot was concerned, notice to quit given by the plaintiff was not legal and valid. Consequently the Court decreed plaintiffs claim with regard to the property which was alleged to have been in wrongful possession of the defendant. But so far as the property which was held to be in possession of the defendant as tenant was concerned, plaintiffs suit was dismissed on the ground of want of valid notice to quit. Consequently the Court decreed plaintiffs claim with regard to the property which was alleged to have been in wrongful possession of the defendant. But so far as the property which was held to be in possession of the defendant as tenant was concerned, plaintiffs suit was dismissed on the ground of want of valid notice to quit. However, the learned Judge without making any distinction awarded mesne profits with regard to the entire suit property and also awarded full costs of the plaintiff from the defendant. It appears that this decree was neither challenged by the plaintiff nor by the defendant. This decree was passed on September 14, 1960. 6. In view of the decision in the previous suit, plaintiff in the present suit contended that defendants contention that plaintiff was not the owner of the suit property and was not in possession as tenant was barred by res judicata. 7. Both the courts below have upheld the contention of the plaintiff and have held that defendants contention that plaintiff was not the owner and he was not in possession as a tenant was barred by res judicata and have consequently held that defendant was a tenant in respect of the suit property and that notice given by the plaintiff terminating his tenancy before filing this suit was legal and valid. Consequently decree for possession with mesne profits and costs was awarded in favour of the plaintiff by the trial Court and the same has been confirmed by the Appellate Court. Hence this appeal by the defendant. 8. Mr. Shrikhande, the learned Advocate appearing for the appellant, contended that the finding in the previous suit would not operate as res judicata and the lower courts were, therefore, in error in holding to the contrary. It was contended that since plaintiffs suit was dismissed so far as the present suit property was concerned, defendant could not have appealed against the finding recorded by the trial Court in that suit that the plaintiff had proved his title to the suit property and the defendant was a tenant and, therefore, it cannot be said that the question as to plaintiffs title and defendants tenancy as regards the present suit property was heard and finally decided. 9. There is, however, no substance in this contention. 9. There is, however, no substance in this contention. It is true that in the previous suit, plaintiffs claim as regards the present suit property was dismissed but it was dismissed only on the preliminary ground that the notice to quit was not valid. However, a specific finding was recorded that plaintiff proved his title to the property and that the defendant was a tenant of the present suit property. It was further found that the defendant had failed to prove that he had acquired title to the suit property by adverse possession or that it was barred by limitation. It is true that the suit with regard to the plaintiffs claim for possession of the present suit property was dismissed. But it must be remembered that in the decretal part it has been specifically stated in para 2 that plaintiffs suit in respect to this property which was described in that suit as property A was dismissed for want of valid notice to quit. This implies that although plaintiffs title to the suit property was proved, his suit was dismissed on the technical ground of want of valid notice. Then in spite of the dismissal of plaintiffs suit in part, it is to be remembered the plaintiff was awarded mesne profits for the entire suit property including the present suit property and also he was awarded full costs of the suit. It is not, therefore, correct to say that defendant could not have appealed against this decree. He could have appealed against the refusal to award his costs so far as dismissal of the plaintiffs claim with regard to the present suit property was concerned and in that appeal he could very well have contended that the finding that the plaintiff was the owner of the suit property and he was a tenant thereof was not correct. The very fact, therefore, that in the decretal portion it was specifically stated that plaintiffs suit was dismissed on the narrow ground of valid notice implies that it was declared that plaintiff was the owner of the suit property. It is true that no specific declaration was asked for, but in view of the finding, impliedly such a declaration has been awarded in favour of the plaintiff and plaintiffs title to the property was held established. 10. It is true that no specific declaration was asked for, but in view of the finding, impliedly such a declaration has been awarded in favour of the plaintiff and plaintiffs title to the property was held established. 10. In (Mota Holiappa v. Vithal Gopal)1 the plaintiff had instituted a suit to eject the defendant from certain lands on the allegation that mulgeni lease executed by a predecessor-in-title of his to defendant was invalid and not binding on him and that the plaintiff was entitled to evict the defendant as a yearly tenant. The Court decided the first point in plaintiffs favour but held that for want of notice the plaintiff was not entitled at that stage to evict the defendant. After due notice given the plaintiff again sued the defendant in ejectment. The defendant once again pleaded the mulgeni lease in his favour. Both the courts below had held that the defence was barred by res judicata and consequently decreed plaintiffs claim. In appeal to this Court, a Division Bench of this Court consisting of Mr. Justice Beaman and Mr. Justice Heaton held that the law of res judicata was applicable to this case in as much as in the earlier suit the first part of the plaintiffs prayer found a place in the decretal order and was as much decreed as the other part of the prayer which in the second part of that decretal order was rejected. This case, therefore, supports the view which the lower courts have taken in the present case. 11. Mr. Shrikhande, however, pointed out that in the aforesaid case, declaration as to the mulgeni lease was part of the decretal command and hence it was held to constitute res judicata. In the present case also, as I have pointed out above, by implication it can be said that plaintiffs title to the suit property has been declared and held established in the previous suit but his claim for possession was only dismissed on the ground of want of valid notice. The aforesaid ruling, therefore, is on all fours to the present case. 12. Mr. Pendse for the respondent No. 1 also brought to my notice a decision of the Andhra High Court in (Mahadeva v. Sreeramamurty)2. The aforesaid ruling, therefore, is on all fours to the present case. 12. Mr. Pendse for the respondent No. 1 also brought to my notice a decision of the Andhra High Court in (Mahadeva v. Sreeramamurty)2. In that case, property which belonged to two brothers was sold by each of them to the plaintiff and the defendant in that suit respectively representing that it belonged exclusively to himself. One of the purchasers filed a suit against the other for eviction on the allegation that the property entirely belonged to him. The Court held that the vendors of both of them were joint owners of the property and, therefore, each had only one-half interest in the property. Since, however, the suit by the plaintiff for possession was for the entire property, it was dismissed and the plaintiff was advised to file a separate suit for partition and possession of his one-half share. Thereafter the plaintiff filed a fresh suit for partition and separate possession of his share. 13. The defendant apart from raising the plea that the suit property was the absolute property of his vendor pleaded that the plaintiffs earlier suit for the recovery of the entire property having been dismissed, he was barred by res judicata from filing the present suit for half of it. The District Munsif held that the decree in the previous suit constituted res judicata and the defendant could not in the present suit reopen the question of title. The trial Court decreed plaintiffs claim for possession of half portion. In appeal also, the decision of the trial Court was upheld. The District Munsif held that the decree in the previous suit constituted res judicata and the defendant could not in the present suit reopen the question of title. The trial Court decreed plaintiffs claim for possession of half portion. In appeal also, the decision of the trial Court was upheld. When the matter came to the High Court, the question raised was whether the decision in the previous suit operated as res judicata against the defendant in the suit on the question of title and on a review of the case law on the point, it was held that : "Though a suit is dismissed the adverse finding against the defendant would be res judicata in a subsequent suit between the same parties, if on the basis of that finding, costs in whole or in part were disallowed to the plaintiff or awarded to the defendant, (sic) for, in such a case, there is a decree against the defendant and it becomes final unless he prefers an appeal against the same." Reference was made to two decisions of the Madras High Court, (Kotayya v. Subhayya)3 and (Venketachalla Padayachi v. Velayudha Padayachi)4. In both these cases suit was instituted by the landlord against the tenant for ejectment and for recovery of possession and the tenant had denied the lease as well as title of the landlords and claimed adverse possession. In both the cases, however, the suit was dismissed on the ground of valid notice. However, the defendant was not allowed his costs. It was observed, "When the decree disallowed costs against the defendant, on the basis of a finding against him, it will be a final adjudication to that extent as he can in law prefer an appeal against that part of the decree." 14. Mr. Shrikhande tried to distinguish these rulings on the ground that in both these cases costs of the defendant were expressly disallowed on the ground that the finding as to title was against the defendant, whereas in our case he pointed out that while disallowing defendant No. 1s costs and on the other hand saddling the 1st defendant with full costs, the learned Judge has not made any such observation in the previous suit. No doubt, however, the very fact that in spite of the dismissal of plaintiffs claim for recovery of possession of part of the property, the 1st defendant was saddled with full costs would indicate that it was so done because the plaintiff had substantially succeeded but had failed only on a technical ground so far as regards the present suit property was concerned. 15. In view of these authorities, however, to my mind it appears that the contention advanced on behalf of the appellant in the present case that the plea raised by the defendant that he was not the tenant but was the owner of the suit property was not barred by res judicata cannot be sustained. 16. The result, therefore, is that the appeal fails and is dismissed without any order as to costs. -----