JUDGMENT D. P. Sood, J.—This Regular Second Appeal is directed against the judgment and decree dated March 18, 1982, of the learned District Judge, Solan and Sirmour Districts at Solan, whereby the suit of Devi Saran, now appellant before this Court, was dismissed in its entirety. 2. The bone of contention in between the parties is the land measuring 7 bighas 16 biswas contained in khasra Nos. 106 and 137 khata khatoni No. 47/63 situated at village Kothi Deora, tehsil and district Solan, hereinafter referred to as the disputed land. 3. The disputed land originally belonged to one Shri Guni. He had two wives, namely, Smt. Ganeshoo and Smt Shibi, besides two sisters, namely, Smt. Palko and Smt Kahno. Devi Saran, appellant, filed a suit for perpetual injunction and damages amounting to Rs. 400 on the ground that Smt. Shibi was the owner in possession of the suit land and she had willed away the property to him. Admittedly Smt. Shibi died after the year 1976 but before the filing of the suit on 1st December, 1978 The allegations made by the plaintiff is that defendants threatened to illegally disposses the plaintiff and also interfered in his possession particularly on 26th November, 1978 when they removed grass stacked at khasra No, 137 measuring 4 bighas 3 biswas forcibly and also tried to cut and remove the remaining grass subsequently on 30th November, 1978 and thereby caused damages to the tune of Rs 400. Consequently, the appellant filed the instant suit for perpetual injunction and damages amounting to Rs. 400 against the defendants. 4. The respondents resisted and contested the suit by contending that the appellant was out of possession of the disputed land and he fraudulently got a mutation sanctioned in his name in connivance and collusion with the patwari halqa On the contrary they claimed to be the owners in possession of the disputed land. They also pleaded that late Smt. Shibi was never in possession of the disputed land while she was permitted to be in possession of 1 bigha 6 biswas of land. 5. The other suit No 116/1 of 1979 pertaining to the same land was filed by Krishnia and Smt. Palko the present respondents against Devi Saran the present appellant. That suit was also for declaration to this effect that they were owners in possession of the suit land. 5. The other suit No 116/1 of 1979 pertaining to the same land was filed by Krishnia and Smt. Palko the present respondents against Devi Saran the present appellant. That suit was also for declaration to this effect that they were owners in possession of the suit land. They also prayed for permanent injunction against the defendant Oevi Saran. Their case was as pleaded before the trial Court was that the suit land has been in their possession as owners and one Shibi has been wrongly recorded in possession of this land "Bilia Lagan Bawaja Rishtedari va Rajamandi." They also pleaded that Shibi was never inducted by them as tenant and therefore, mutation in her favour conferring proprietary rights upon her was void, it was also averred that after the death of Shibi the defendant Devi Saran bad filed a suit for permanent injunction against the present plaintiffs. On the basis of some document purporting to be the will of Shibi regarding the disputed land the defendant got sanctioned mutation in his favour. According to plaintiffs Shibi had no title to pass on to the present defendant by virtue of the alleged forged will. In the alternative the plaintiffs also prayed for possession. The case of Devi Saran in this suit was that this land was originally owned by one Guni and Shibi was his widow. Guni had given this land to Smt. Palko and others and Shibi and Ganesho widows of Guni had no source of livelihood or income, they were inducted as tenants by Palko and others by way of special contract on account of relationship on the suit land. It was also pleaded that both widows remained in possession as tenants and in the year 1963 Smt Ganesho died and Smt. Shibi was treated as sole tenant over the entire suit land. Smt. Shibi was granted proprietary rights under the provisions of H P. Tenancy and Land Reforms Act. As she had executed a valid will in favour of the defendant who came in possession of the suit land on the basis of the said will after the death of Smt Shibi. 6. Smt. Shibi was granted proprietary rights under the provisions of H P. Tenancy and Land Reforms Act. As she had executed a valid will in favour of the defendant who came in possession of the suit land on the basis of the said will after the death of Smt Shibi. 6. Both the Civil Suits No. 157/1 of 79 and 116/1 of 79 were consolidated by the order of the learned Senior Sub-Judge, Solan and there being common question of law and fact arising in between the same parties and pertaining to the same subject-matter, evidence was ordered to be recorded in Civil Suit No 157/1 of 79 titled, Devi Saran v. Palko and another, though issues were framed separately, in both the suits. 7. In Civil Suit No. 157/1 of 79 the learned Court of the Sub-Judge, Kandaghat, concluded that Devi Saran, now appellant, on the basis of will was owner in possession of the suit land to the extent of 1-19 bighas and resultantly partly decreed the suit for permanent injunction. The suit with respect to the remaining land was dismissed. The other suit No. 116/1 of 79, was decreed for possession pertaining to 5 bighas 17 biswas only but qua the remaining disputed land it was dismissed. Both parties filed separate appeals as also cross-objections respectively and on that count, four appeals were preferred which were considered by the learned first Appellate Court and consequently decided by a common judgment. 8. The first appellate Court dismissed the suit of the appellant in its entirety and decree the suit of the respondents. It is how Devi Saran, appellant, feeling aggrieved with the judgment and decree of the first appellate Court has come up in this appeal. 9. In this second appeal Sh. Bhupinder Gupta- learned Counsel for the respondents has pleaded the bar of res-judicata as a preliminary objection. Learned Counsel pointed out that with respect to the one and the same subject-matter, there were now two conflicting decisions passed in two different suits by the first appellate Court though by one common judgment. 9. In this second appeal Sh. Bhupinder Gupta- learned Counsel for the respondents has pleaded the bar of res-judicata as a preliminary objection. Learned Counsel pointed out that with respect to the one and the same subject-matter, there were now two conflicting decisions passed in two different suits by the first appellate Court though by one common judgment. Learned Counsel further submitted that although the decision in two suits was simultaneous not only in the Court of the first instance but also in the first appellate Court, Devi Saran appellant having not filed an appeal in the other suit, the decree became final between the parties and by the same decision, it came to assume the position of a decree passed in a former suit within the meaning of Explanation-1 of section 11 of the C. P. C. Sh. Bhupinder Gupta, cited amongst other decisions, Koshal Pal and others v. Mohan Lai and others, AIR 1976 SC 688 and Lonankutti v. Thomman, AIR 1976 SC 1645. 10. On the contrary Sh. A. K. Goel, learned Counsel for the appellant has pointed out that it is not the decree which creates estoppel but it is the judgment only which can be available for a successful plea of res judicata. According to him in the instant case, two suits were consolidated by the order of the Court which meant combinding the controversies in the two suits into a single controversy and a single proceedings. Further it is pointed out that evidence was recorded in one case and ultimately decided by one common judgment; that the copy of the judgment was placed on the other suit and ultimately the two suits gave rise to two appeals and two cross-objections and thus all the four appeals were further decided by a common judgment. It is stressed that since only common judgment in a proceedings has been put in jeopardy by being appealed against, it is not a matter finally decided so as to attract the bar under section 11. It is stressed that since only common judgment in a proceedings has been put in jeopardy by being appealed against, it is not a matter finally decided so as to attract the bar under section 11. Regarding the principles laid down by the Supreme Court in the aforesaid two oases relied upon by the opposite party, it is submitted that in these cases separate suits were decided by separate judgments and the findings recorded in the suits decided earlier operated as res judicata in relation to the other suits or appeals arising therefrom which is not the case on facts in the instant appeal. Reliance has been placed on the Full Bench decision of Allahabad High Court in Jai Narain Har Narain and another v. L. Bulaqi Das s/o L Munna Lal, AIR 1969 All 504 (FB) and decision of a Division Bench of this Court in R.FA. No. 2 of 80 titled as Ravinder Madan v. Dr. Rajinder Nath Madan deceased {through his L. Rs.) Kamlesh Madan and others, decided on September 12, 1980. 11. Considering the rival arguments the question arises as to what are the facts in the present litigation which would attract the bar of res judicata. As far as the present appeal is concerned I have already stated earlier that the abovesaid two suits were consolidated by the order of the Court after the framing of issues separately in each one of the suits and thereafter evidence was recorded in Civil Suit No. 157/1 of 79 and disposed of by one common judgment, the copy of which was also placed in the other suit. As in each one of the two suits, suit was decreed partly, it gave rise to two appeals and two cross appeals before the same Court and all the four appeals were decided by a common judgment. The present appeal has arisen out of Civil Suit No. 220/1 of 78, filed by Devi Saran. It is well settled that where the Court is dealing with a suit the only ground on which the res judicata can be urged against such a suit would be the provision of section 11 of the C. P. C. and no other. The present appeal has arisen out of Civil Suit No. 220/1 of 78, filed by Devi Saran. It is well settled that where the Court is dealing with a suit the only ground on which the res judicata can be urged against such a suit would be the provision of section 11 of the C. P. C. and no other. Section 11 so far as it is relevant for the decision of this appeal, reads: — "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation 1.—The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto." 12. Thus the careful reading of the provision shows that it is a decision which creates bar of res juaicata and not a decree. In fact section 11 of the C. P. C. does not speak of a decree at all. 13. It is now well settled that the principle of resjudicata is based upon the maxim that no one shall be vexed twice over the same matter. Res judicata is either estoppel by verdict or estoppel by judgment (on record), and there is no such thing as estoppel by a "decree". The determining factor is, therefore, not the decree but the decision in the matter of controversy. In that view of the matter judging the facts regarding consolidation, trial and disposal of the suit by a common judgment, it would lead to a conclusion that "wherein in two suits there is one trial, one finding and one common judgment, and appeal is filed in one suit, the decision in the other suit pursuant to the same judgment, would not operate as res judicata in terms of section 11 of the Code of Civil Procedure 14. In the case of Lonankutti, AIR 197o SC 1645, a plea of resjudicata was raised and in the facts and circumstances of that case it was held that s— "Respondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of their suit. They filed a second appeal in the High Court only as against the decree passed by the District Court in A. S. No. 66 of 1978 which arose out of the decree passed by the trial Court in the appellants suit. Thus, the decision of the District Court rendered in the appeal arising out of the respondents suit became final and conclusive That decision, not having been appealed against could not be re-opened in the second appeal arising out of the appellants suit. The issue whether respondents had the easementary right to the flow of water through the appellants land for fishing purposes was directly and substantially in issue in the respondents suit. That issue was heard and finally decided by the District Court in a proceeding between the same parties and the decision was rendered before the High Court decided the second appeal. The decision of the District Court was given in an appeal arising out of a suit which though instituted subsequently, stood finally decided before the High Court disposed of the second appeal. The decision was therefore one in a former suit within the meaning of section 11, Explanation 1, C. P. C. Accordingly, the High Court was in error in deciding an issue which was heard and finally decided in a former suit and was therefore barred by resjudicata.................... ...To the same effect is the decision reported in Koshal Pal v. Mohanlal, AIR 1976 SC 688. It is to be noticed that the dissenting judgment of Untwalia J. did not turn on the principle upheld by the majority and reiterated in the later decision of the Supreme Court in Lonankutti v. Thomman, AIR 1976 SC 1645 ; indeed Untwalia J. was also on the Bench which rendered the later decision." 15. It is to be noticed that the dissenting judgment of Untwalia J. did not turn on the principle upheld by the majority and reiterated in the later decision of the Supreme Court in Lonankutti v. Thomman, AIR 1976 SC 1645 ; indeed Untwalia J. was also on the Bench which rendered the later decision." 15. Thus the close reading of the facts involved in the two Supreme Court judgments, show that the ratio pertaining to the bar of res judicata laid down in the abovesaid cases is that where separate suits are decided by separate judgments, the finding recorded in the suit decided earlier operates a resjudicata in relation to other suit or appeal arising therefrom The abovesaid decisions, do not relate to a situation which I find in the present litigation where, as observed above, admittedly, after consolidation of two suits, evidence was recorded in one of them on all issues and both the consolidated suits were disposed of by a common judgment which gave rise to two main appeal and two cross-appeals and appeals were also decided by a common judgment. In fact the facts of the instant appeal are fully covered by the principles laid down in the case of Jai Narain Har Narain and another (supra). In that view of the matter the preliminary objection having no force is rejected. 16. Now coining to the decision of the case on merits, the learned Counsel for the appellant has confined his arguments to that of jurisdiction of the Civil Court to try the suit and dispose of the same. According to him, Smt. Shibi was conferred proprietary rights under the provisions of Himachal Pradesh Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the Act) In this regard my attention has been drawn to the entries made in the column of jamabandi for the years 19o2-63, 1965-66 corresponding to Samvat Bikrami 2023-24, Exs PD and PH respectively as also copy of khasra girdawris Exs. PG and PE respectively. The aforesaid revenue record Exs PD, PH and PG show Smt. Shibi to be a tenant under Smt. Palko and Kahno. It is to be noted that the appellant derives his title from Smt. Shibi aforesaid through a will alleged to have been executed in his favour whereas respondents being closely related to Smt, Palko and Smt Kanho claimed to have inherited their interest. It is to be noted that the appellant derives his title from Smt. Shibi aforesaid through a will alleged to have been executed in his favour whereas respondents being closely related to Smt, Palko and Smt Kanho claimed to have inherited their interest. The revenue record referred to above further show that the entry in the column of lagan is "Bilia Lagan Bawaja Reshtedari V. Rajamandi Bahami" that is (without payment of rent on account of close relationship and mutual consent). Record thus shows that Smt. Shibi is alleged to have executed will Ex PA/1, dated 24th September, 1976 in favour of the appellant when she was a tenant over the disputed land The case of the appellant in his pleadings in the instant suit is that said Smt. Shibi was owner of the disputed land and he had acquired ownership through the aforesaid document Ex. PA/1. Nowhere the appellant had set up a case of tenancy of said Smt. Sbibi in the pleadings in the instant case. Even otherwise in the other suit the case pleaded is that original owner Sh. Gunni had given the disputed land to Smt. Ganesho and Smt Shibi his two widows, in lieu of maintenance. Said Smt Ganesho expired in the year 1963 and thereafter Smt. Sbibi continued to be in possession. Tenancy is claimed under the two sisters of laie Shri Gunni. There are no pleadings as to when, how and in what circumstances the two sisters namely, Smt Palko and Smt Kahno had inducted said Smt. Shibi as a tenant over the disputed land Secondly, even in view of the entry in the column of lagan she cannot be termed to be a tenant Rather according to the pleadings both Smt. Shibi and Smt Ganesho widow of Gunni having no source of livelihood or income and, therefore, they were inducted as tenant by Smt Palko etc such an arrangement even as per pleadings does not in any way create tenancy. Simply because it has been so recorded in the rent-column would not mean that a contract for non-payment of rent had been accorded to in between the parties In fact the expression "tenancy" is a question of fact which has to be proved like any other fact One of the requisite of tenancy is payment of rent subject to a contract to the contrary. No such contract has been proved. No such contract has been proved. Even otherwise the appellant Devi Saran appearing as DW 2 has stated that Smt. Shibi remained in possession of the entire suit land as tenant on payment of land revenue. This statement definitely goes contrary to the entries in the revenue record. Taking into consideration the entire facts, it cannot be said that Smt. Shibi held the disputed land as a tenant during her life time. Rather the case set up by the appellant is contrary to his pleadings and as such he has failed to prove said Smt. Shibi to be a tenant over the disputed land. Both the learned Courts below have rightly concluded in this respect. 17. Viewing the facts from another angle even if it be assumed that Smt Shibi was a tenant then she could not have transferred her tenancy interest in favour of the appellant by way of a will Ex PA/1. Section 45 of the Act impliedly puts a bar upon such transfer of rights of the tenant. There is no controversy that "will" is effective after the death of the executant. At the same time under section 45 of the Act, after the death of the tenant the tenancy right is succeeded by his/her relations in the manner stated in the said provision. Thus in that view of the matter, a tenant is precluded to transfer his or her tenancy rights by way of a will If that be so, then the will is void-abnitio meaning thereby that the appellant did not inherit any interest nor he has any locus standi to institute the suit. On that Court too, his suit is liable to be dismissed. 18. From whatsoever angle the appeal is considered, it is liable to be dismissed Accordingly, the appeal is dismissed with costs. The impugned judgment and decree of the Courts below are up-held. The appeal stands disposed of in terms of the above. Appeal dismissed.