Judgment :- 1. The principal question argued in this second appeal is res judicata. 2. The point arose in O.S. No. 160 of 1969 the former suit in regard to which the question was debated was O.S. 537 of 1967. Both the suits were in the District Munsif Court, Kancheepuram. The parties were identical in the two suits, with one difference; the plaintiffs in the one suit were defendants in the other and vice versa. 3. The dispute between the parties concerned a bit of land, 12 feet by 90 feet, belonging to a temple in Big Kancheepuram, called Harisabam Theertha Easwarar Temple. The suit land was under the charge of two brothers who were using it as a passage. In that suit, they asked for a declaration against the temple that they were having permanent occupancy rights over the site as lessees under the temple. They also asked for other reliefs, against the temple by way of injunction, both prohibitory and mandatory. The temple resisted the suit claim, saying that the plaintiffs were only licensees with a bare right of passage across the suit site. At the trial of this suit, the parties joined issue on the precise character of the plaintiffs use and occupation of the suit land. The court also went into the temples alleged acts of interference, actual or apprehended, in the suit land. On the first issue, the learned District Munsif refused to grant to the plaintiffs the declaration they asked for. He recorded a finding that the plaintiffs had no rights of permanent occupancy. All the same, he granted a decree for injunction against the temple on the basis that the plaintiffs were in occupation of the suit land as the temples tenants under a monthly lease, terminable by the temple by fifteen days notice to quit. 4. It may be observed that while granting relief to the plaintiffs, the court did not grant any permanent injunction against the temple. On the contrary, the decree for injunction was only to be in force ‘until the lease was properly terminated’. This limitation was obviously conditioned by the courts finding on the other issue in the suit to the effect that the plaintiffs leasehold in the suit land was terminable by the temple by fifteen days notice. The decree on the terms aforesaid, was passed on 11 th February 1969. This limitation was obviously conditioned by the courts finding on the other issue in the suit to the effect that the plaintiffs leasehold in the suit land was terminable by the temple by fifteen days notice. The decree on the terms aforesaid, was passed on 11 th February 1969. The temple did not appeal against the decree. It took the hint, as it were, from the terms of the decree and terminated the plaintiffs tenancy by issuing a lawyers notice in appropriate terms. The tenants, however, paid no need to the notice to quit. The temple thereupon filed the later suit in ejectment, barely a month after the decree in the earlier suit. The tenants entered appearance and resisted the suit for ejectment saying that they were entitled to remain in permanent occupation of the suit property. As to this defence put forward by the tenants, it was contended on behalf of the temple that the tenants were barred under S. 11 C.P.C. from taking up the issue of permanent occupancy rights, considering that the issue had been concluded against them in the earlier suit. This is how the question of res judicata arose for consideration before the learned District Munsif at the trial of the subsequent suit, O.S. No. 160 of 1969. 5. The learned District Munsif upheld the temples contention. He expressed the view that the tenants were barred, from raising the issue as to the nature of their tenancy in the face of the decision against them in the earlier suit. On appeal, the learned Subordinate Judge took the same view. 6. The tenants have now brought this second appeal before this court questioning the correctness of the decision of the courts below. Mr. Sundaravaradan, for the tenants, argued that there was no question of his clients being barred under any principle of res judicata from putting forward their defence in the subsequent suit in ejectment. He reminded me that the former suit had actually been decreed in favour of his clients, and, although their right of permanent occupancy was not accepted by the court in that suit, it was no more than a mere finding. He reminded me that the former suit had actually been decreed in favour of his clients, and, although their right of permanent occupancy was not accepted by the court in that suit, it was no more than a mere finding. The tenants, according to the learned counsel, let go this finding, and, in his opinion, rightly so, for, as he put it, no one with a decree in his favour would think of an appeal merely for the sake of getting rid of an incidental adverse finding in the judgment. Learned counsel quoted high authority for the position that our established Civil Procedure Code only provides for an appeal against a decree and does not provide an appeal as against a mere finding. 7. The last proposition put forward by the learned counsel that there is no appeal against a finding may be accepted without question. It may also be conceded, somewhat broadly, that where a former suit had been decreed in favour of a party, but the judgment also contains an adverse finding against him, a subsequent suit for a plea in a subsequent suit canvassing that finding cannot operate as res judicata between the same parties. This position has been accepted in some of the reported cases, on the principle that no appeal lies against a mere finding when the decree itself is not appealable being in the appellants favour. In Thakur Magundeo v. Thakur Mohandeo Singh 18 Cal. 647 for instance, this was how the matter was considered:— “it appears to us that the last element is wanting, namely, ‘finally decided’. We think that the finding of the court in the previous suit was not final inasmuch as the decree was not based upon it, and there could be no appeal against it, because the decree was in favour of the party against whom the finding was recorded”. In Abhey Ram v. Jhanda A.I.R. 1929 All. 910 the same idea was put in a somewhat different fashion thus— “A finding cannot be conclusive against a party if the decree is not based upon it, but is made in spite of it. Such a finding against the plaintiff cannot found a plea of res judicata” Mr. Sundaravaradan, during his argument, came close to adopting the language employed by the Allahabad High Court in the above passage. Such a finding against the plaintiff cannot found a plea of res judicata” Mr. Sundaravaradan, during his argument, came close to adopting the language employed by the Allahabad High Court in the above passage. He said that the decree in O.S. 537 of 1967 is based not on the finding, but despite the finding, that his clients had no permanent occupancy rights. This, I grant, may be one way of describing what the court did in that suit, but, in my view, the discussion does not stop there. The issue of res judicata, as I conceive it, is not properly considered by instituting a broad distinction between a decree and a mere finding in the former suit. The right approach as I understand S. 11 of the Code and the cases bearing on the subject, is to examine the record of the former suit and see if what the court has rendered therein is a determination which decides an issue between the parties and is not a mere finding which is only by the way, in the sense that it does not affect one way or the other the courts decision on any issue in the suit. This distinction, in my judgment, has to be made, and can be made, only by addressing one self to the nature of the former suit and its cause of action, the defence raised by parties opposing the grant of relief, the precise issues which the pleadings raise and the nature and thrust of the courts determination on the issues in the former suit. The broad verbal dichotomy, text-book fashion, between a decision and a finding cannot help solve questions arising in individual cases under S. 11 of the Code. 8. In this case, learned counsel was hard put to it to maintain that the courts decision on the question of permanent occupancy rights was only a passing finding and did not bear on matters on which the parties had not joined issue in the former suit. For that suit was really a two-in-one suit, one for a declaration and the other for an injunction. So when the court denied to the tenants the relief by way of declaration which they had asked for, it was actually a dismissal of the suit to that extent. It was by no means a passing observation. For that suit was really a two-in-one suit, one for a declaration and the other for an injunction. So when the court denied to the tenants the relief by way of declaration which they had asked for, it was actually a dismissal of the suit to that extent. It was by no means a passing observation. Even as respects the other relief by way of injunction the court did not grant the tenants a permanent injunction, which is what they had asked for, under the decree, the injunction granted to them was to last only till so long as the temple chose to regard it that way. For the temple had it in its power to overreach the injunction by the simple expedient of terminating the tenancy which is what they actually did in this case. It would not, therefore be correct to maintain that the tenant had wholly succeeded in their former suit and that such findings as were rendered by the court against them in that suit were passing observations and incidental findings which they were not disentitled from agitating in the subsequent suit. What might have been the case had these people merely sued the temple for injunction, without more, in the earlier suit can only be speculation. But it seems to me that even with that kind of a bare suit for injunction the question of res judicata might yet involve careful examination with reference to the findings and other aspects I have earlier referred to as relevant in an enquiry under S. 11 of the Code. 9. Mr. T. V. Balakrishnan, appearing for the temple, cited before me Muthammal v. Secretary of State 39 Mad. 1202. That case is authority for the position that not only the actual decision but also the grounds for decision in the earlier suit would be res judicata , in a subsequent suit between the same parties. The decision, however, is not helpful to resolve the precise question now before me. On that question, as I have observed, it would be a truncated view of the decree in the earlier suit to regard the courts determination of the issue as to permanent tenancy as a mere incidental finding against the tenants. 10. One other question had been raised by the tenants by way of defence to the subsequent suit. On that question, as I have observed, it would be a truncated view of the decree in the earlier suit to regard the courts determination of the issue as to permanent tenancy as a mere incidental finding against the tenants. 10. One other question had been raised by the tenants by way of defence to the subsequent suit. It was contended that the temple could not maintain the suit in ejectment without first obeying the mandatory injunction issued by the court in the former suit. The mandatory injunction was to pull down a structure raised by the temple in the suit site. But the temple had filed the present suit in ejectment, without actually pulling down the said structure. 11. Both the courts below had rejected this defence. They held that the non-compliance with the injunction did not non-suit the temple. I agree with that view in so far as the maintainability of the present suit is concerned, whatever other consequences the temple authorities might have subjected themselves to by their failure or omission to comply with the terms of the mandatory injunction. As to what, if any, those other consequences might be, the occasion had not arisen for this court to express any opinion in these proceedings. 12. In the result, the appeal fails and is dismissed; but in the circumstances, without costs.