Judgment S. Shamsul Hasan, J. 1. Plaintiff is the appellant in this Court and also in the lower appellate court. The suit was brought for declaration that the judgment passed by the Munsif 1st Court, Darbhanga, in Title Suit no.135 of 1956 and the subsequent judgment in Title Appeal no.1525/8 passed by 43759 the Additional Subordinate Judge and that of this court in Second Appeal no.829/60 are binding upon the plaintiff only in regard to 1 katha out of plot no.2 of khata no.166, situate in mauza Sara Mohammad, P. S Dar bhanga. 2. The case of the plaintiff appellant is that the defendant-respon dents had brought Title Suit no.135 of 1956 in the court of Munsif 1st, darbhanga, with respect to Schedule 1 land of the suit against the present plaintiff, which was decreed and upheld up to this court. Schedule I land consisted of only 1 katha of plot no.2 appertaining to khata no.166. The claim was based on the basis of the sale-deeds, being Exts. A and A/1, by which they claimed to have acquired title and possession over 2 bighas 17 kathas of land which covered plot nos.2, 3 and 79. It is said that these plots have been in possession of Shri Krishna Prasad and others, heirs of one Trilok Nath, who had sold these lands to the defendant-respondents by exts. A and A/1. 3. The claim of the plaintiff in the present suit and defendant in Title suit No.135/56 was that the entire plot nos.2, 3 and 79 were in possession of one Mahanth Ramtahal Das, the Dada Guru of the plaintiff, and Trilok nath, ancestor of the vendors of the defendant-respondents was only a benamidar. It is further claimed that the suit lands were inherited by the present plaintiff-appellant from the said Dada Guru Ramtahal Das. The story of Trilok Nath being the benamidar of Ramtahal Das was denied by the defendant-respondents. 4. It is admitted that in the earlier suit i. e. , Tittle Suit no.135/56| although that suit concerned only one katha of land of plot no.2, the source of right to the land in suit and which covers the entire land of plot nos.2, 3 and 79, i. e , whether these lands were in the benami name of Trilok Nath and really belonged to Ramtahal Das, were strongly agitated and decided in favour of the defendant-respondents of this case. 5. The plaintiff-appellant contends that since the defendant-respon dents started claiming that the judgment and the decree of Title Suit no.135/56 covered the entire lands measuring 4 bighas 11 kathas and 11 dhurs and the plaintiff-appellant has no right to the same, the present suit for a declaration, as stated above, has been instituted. 6. The finding of the courts below is that the suit is barred by res judicata because the claim of the parties in regard to the source of their title and possession, i. e. , whether Trilok Nath was the benamidar of Ramtahal das or the land belonged to him, was thoroughly contested and decided. It was a matter substantially in issue. 7. Learned counsel for the appellant Mr. R. S. Chatterji has submitted firstly, that the suit is not hit by res judicata because the matter relating to the source of title and possession of the parties as stated above was only incidentally and collaterally gone into. Secondly, his submission was that since the subsequent suit involved much larger area of the land the court trying the earlier suit was a court of limited jurisdiction could not try the subsequent suit and, therefore, the decision of that court could not give rise to the application of the principle of res judicata. 8. Learned counsel for the respondents, Mr. Shree Nath Singh, raised several points, the main of which was that the suit was barred by res judicata, firstly, because while deciding the title and possession regarding one katha of plot no.2, the matter relating to the source of title and possession, as stated above, was contested and decided in favour of the defendant-respondents of this suit, and, therefore, since that was a matter substantially in issue, this suit is barred by res judicata. Their further case was, as has been held by the appellate court, that the suit is bad for non-joinder of parties, because defendants 2 to 6 of Title Suit no.135/56 have not been made parties to this suit and since that legality of their alienation was the matter that was being determined, their joining in the present suit is abso lutely necessary. It has also been submitted that in view of the recent amendment to the Civil Procedure Code by addition of Explanation VIII to section 11, the judgment of a court of limited jurisdiction will operate res judicata in a subsequent suit even if the earlier court could not try the subsequent suit. Several other points were also raised by the learned counsel for the respondents but since I propose to dismiss this appeal on the question of res judicata the other points become academic. 9. It is well settled that the effect to res judicata is confined to the matters that were directly and substantially in issue in a former litigation between the same parties. The matter can be substantially and directly in issue or incidentally or collaterally in issue. As I understand it, based on the commentaries and the decisions, a matter, the decision of which is essential for deciding the direct issue, will be a matter substantially in issue, even though no issue is framed in that regard. Matters collaterally or incidentally in issue are such matters the determination of which may or may not effect the ultimate decision with regard to the issues that are directly and substantially involved. The incidence of a matter that can be said to be substantially and directly in issue is that it has been alleged by one party or admitted expressly or by implication or denied by the other party in the previous suit, and that matter has to be decided on the basis of the pleadings, issues framed and the findings given in that case. It is not neces sary that a separate issue has to be framed upon the matter. It is sufficient if the matter has been gone into and decided in substance. Decisions in ishar V/s. Sharwan (AIR 1965 S. C.948), ragho Prasad V/s. Shri Krishna (AIR 1969 s. C.316) and Lonankutty V/s. Thomman (AIR 1976 S. C.1645) may be probably examined on this questions. 10. Applying this principle to the facts of the present case undoub tedly the question whether Trilok Nath was benamidar of Ramtahal Das or not was a substantial issue to be decided before holding that the land in question in that suit (135/56) belonged to the plaintiff or the defendants. 10. Applying this principle to the facts of the present case undoub tedly the question whether Trilok Nath was benamidar of Ramtahal Das or not was a substantial issue to be decided before holding that the land in question in that suit (135/56) belonged to the plaintiff or the defendants. Without deciding that question no decree could be given one way or the other in regard to one katha of land of plot no.2 because the plot was covered by that source of claim which also covered the other plots. It may be true that no specific issue was framed with regard to that question but undoubtedly the matter was contested and decided. 11. It has been held in Krishna Chandra Gajapati Narayana Deo V/s. Challa Ramanna (AIR 1932 Privy Council 50) as follows : - "where a point is not properly raised by the plaint, but both parties have without protest chosen to join issue upon that point, the decision on the point would operate as res judicata between the parties. " 12. It was further argued by learned counsel for the appellant that the property in the two suits were different and, therefore, the principle of res judicata will not apply. There is no merit in this submission. It is well settled that if a particular issue is contested and decided and whenever that issue is raised with regard to any property, that finding will be res judicata the property itself is a material. 13. It has been held in the Rajah of Pittapur V/s. Sri Rajah Row Buchi sittaya Garu (12 Indian Appeals 16) of follows : "it appears to their Lordships that the High Court was right in holding that the decision of the Provincial Court in 1840, upon an issue directly raised in a cause which they were competent to try, that buchi Tamayya was not adopted, would have been conclusive against venkata Row, the father of the Plaintiff, and is also conclusive against the plaintiff himself, who cannot make a title except through his father. " The question involved in this decision was that although the issue in the previous suit and the subsequent one was the same, that is, whether one party was the adopted son of some body, as the property involved was different, the principle of res judicata did not apply. " The question involved in this decision was that although the issue in the previous suit and the subsequent one was the same, that is, whether one party was the adopted son of some body, as the property involved was different, the principle of res judicata did not apply. It was held that the subsequent suit was barred by res judicata. 14. It has been held in Kedar Nath Singh V/s. Sheo Shankar (AIR 1923 allahabad 613) as follows : - ". . . . . . . . . . . As regards the matter being res judicata, it seems to us that the question as to the validity or otherwise of the sale-deed of the 2nd August, 1903, was a matter directly and substantially in issue in the previous suit. A portion of the property claimed in that suit was claimed on the basis of the sale deed. Unless the validity of the sale-deed could be established that party of the claim could not prevail. Therefore, the question whether the sale-deed was a question which arose directly and substantially in the previous suit without a determination of which that suit could not be determined. It is true that the property now claimed was not claimed in the previous suit, but the title to this property and to the property then claimed was derived from the same source and the Court decided that source, namely, the sale-deed to be invalid and that it conferred no title on Kashi Nath. . . . . . . . . . . " On these observations it was held that the decision in the previous suit must be held to be binding on the parties. 15 It has also been held in Smt. Raj Lakshmi Dasi V/s. Banamali Sen (AIR 1953 S. C, 33) as follows : - "the first contention raised by him was that the judgment of privy Council could not operate as res judicata against the present contention of the Sons and the mortgagees, about the title to the four anna share of Raj Ballavs estate, because the subject-matter of those proceedings was the compensation money, a sum of Rs.900/-and not the property that is the subject-matter of the present suit. He argued that when the plea of res judicata is founded on general principles of law, that plea can only prevail provided the subject-matter in the two cases is identical. It was conceded that such contention could not be sustained under the provisions of S.11 of the Code. In our opinion, this argument is untenable and was negatived by their Lordships of the Privy Council in Bhagwati V/s. Ram Kali, 66 ia 145 cited above, in clear and emphatic terms. In that case, in a regular suit which concerned the rest of the property the plea res judicata was upheld by reason of the decision in the land acquisition case which concerned another part of the property which had been acquired and for which compensation was payable. The quotation already cited earlier from this decision brings out that point clearly. The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases. " 16. As stated above, learned counsel for the appellant further sub mitted that since the earlier suit was by a court which could not try the subsequent suit because of lack of pecuniary jurisdiction, the decision is not res judicata The answer to this submission lies in Explanation VIII of section II of the Code of Civil Procedure. This explanationwas introduced by Sec.6-A the Amending Act, being Act No.104 of 1976. Undoubtedly, this explanation clearly answers the point raised by the appellant and indicates that it has no substance. It was further submitted, though erroneously, by learned counsel for the appellant that this section was introduced in 1976 and it is not retrospective. Sec.97 of sub-section (2) of the Amending Act no.104 of 1976 sets out the sections and orders amendment to which are not retrospective. Sub-section (3)lays down that the amendments to other sections, apart from those mentioned in sub-section (2), are retrospective. In that situation Explanation VIII has to be held to be retrospective and applicable to the facts of this case. 17. There is also substance in the point raised by learned counsel for respondents that the suit is bad for non-joinder of necessary parties. Defendants 2 to 6 of Title Suit No.135/56 were parties to the suit and were also parties in the decree. 17. There is also substance in the point raised by learned counsel for respondents that the suit is bad for non-joinder of necessary parties. Defendants 2 to 6 of Title Suit No.135/56 were parties to the suit and were also parties in the decree. Since a declaration was sought in regard to the applicability of a decree to which these defendants were also parties, un doubtedly defendants 2 to 6 of that suit were necessary parties. The suit on that ground also must fail. 18. In the result, the appeal is dismissed with costs. Appeal dismissed.