Judgment :- 1. Plaintiff in O.S. No. 776 of 1981, on the file of District Munsif, Tiruchengode, is the appellant. 2. The appellant filed the suit for declaration of his title to the properly and for recovery of possession from the defendant and for mesne profits. It is his case that the plaint property was purchased by his father under Ex.B21 dated 30-10-1919, and the plaintiff and his father were, residing together in the same house. They borrowed certain amounts from one Palani Chetty on a promissory note and mortgage. To discharge those debts, the plaintiff and his father had executed a sale deed in favour of Palani Chetty and got a reconveyance agreement from him. The said sale deed was not registered. At that time the plaintiff leased put the house to Palani Chetty. Palani Chetty, and his wife Ponnammal were living in the house as tenants under the plaintiff. As the sale deed was not registered, Palani Chetty filed a suit on the pronote and the plaintiff and his father contested the same on the ground that the debts have been discharged by that sale deed. While the suit was pending Palani Chetty died. After trial the suit was also dismissed. In order to get possession of the suit property from Ponnammal, who was a tenant, plaintiff and his father executed a sham and nominal sale deed on 12-7-1962 in favour of the defendant, as they were advised by their Advocate Mr. M.S. Vijayaraghava Chariar. Plaintiff was further advised by his Advocate that an agreement of reconveyence can be taken from the defendant, and the defendant also executed a reconveyance agreement. After that sale, plaintiff filed O.S. No. 596 of 1963. on the file of District Munsif, Sankari, through the defendant for recovery of possession from Ponnammal. All proceedings were taken only in the name of the defendant as he was on record in order to get possession. Ultimately the matter was settled by paying a sum of Rs. 3,700/- to Ponnammal. In that suit all the prior title deeds in respect of the plaint property were also filed. On settlement of dispute, the defendant obtained possession of the property and also all the prior title deeds. The plaintiff further said that the possession of the defendant was that of a tenant on his agreeing to pay monthly rent of Rs. 60/-. In that suit all the prior title deeds in respect of the plaint property were also filed. On settlement of dispute, the defendant obtained possession of the property and also all the prior title deeds. The plaintiff further said that the possession of the defendant was that of a tenant on his agreeing to pay monthly rent of Rs. 60/-. In the year 1969, plaintiffs father died and thereafter, plaintiff requested the defendant to pay rent and give possession. Defendant refused to do so, and therefore, a notice was issued to the defendant to surrender vacant possession, and also to reconvey the properly as was agreed by him. The defendant denied the reconveyance agreement, and therefore, a suit was filed as O.S. No. 805 of 1973, on the file of District Munsif of Sankari at Salem, for specific performance of the contract of the reconveyance agreement. The suit was dismissed by the trial Court and confirmed in appeal in A.S. No. 100 of 1975, on the file of II Additional Subordinate Judge, Salem. The plaintiff took the matter in appeal before this Court as S.A. No. 224 of 1977. It was also dismissed on 19.7.1978. While dismissing the Second Appeal, this Court observed that the plaintiff can seek the relief of declaration of his title, as it was contended that the sale deed dated 12.7.1962 is sham and nominal. This observation, according to the plaintiff amounts to a liberty given to the plaintiff to file a fresh suit for title, and therefore, the present suit was filed for declaration of his title and recovery of possession with mesne profits. 3. The main contention raised by the defendant was that the suit is barred by res judicata. It was also contended that the sale deed in his favour dated 12.7.1962 is not sham and nominal. The property was purchased for valid consideration, and at any rate, since he is in possession denying the right of the plaintiff, the suit is also barred by Limitation and adverse possession. 4. The trial Court as per Judgment dated 30.7.1981, dismissed the suit that costs. The trial Court held that the earlier decision is res judicata and the observation made by this Court in Second Appeal No. 224 of 1977, will not enable the plaintiff to file this suit. 4. The trial Court as per Judgment dated 30.7.1981, dismissed the suit that costs. The trial Court held that the earlier decision is res judicata and the observation made by this Court in Second Appeal No. 224 of 1977, will not enable the plaintiff to file this suit. It also came to the conclusion that the sale deed in favour of the defendant is not sham and nominal and it was conveyed to him for valid consideration. 5. Against the said Judgment, plaintiff preferred A.S. No. 21 of 1983, on the file of II Additional Subordinate Judge, Salem. The lower Appellate Court also found that the present suit is barred by res judicata and dismissed the appeal with costs. The other findings of the trial Court are also confirmed in appeal. It is against the concurrent Judgment, the plaintiff has preferred this Second Appeal, on the following substantial questions of law: — “1. Whether the Courts below have properly appreciated and applied the principles regarding res judicata to the facts of the present case? 2. Whether the Courts below have properly appreciated and applied the principles to find out whether the transaction is a sham and nominal one to the facts of the present case? and 3. Whether the courts below have misconstrued and omitted to construe the material evidence on record when they negatived the case of the appellant?” 6. The antecedent title of plaintiffs father under Ex.B2 is admitted. The plaintiff himself filed the suit as O.S. No. 805 of 1973, for specific performance of reconveyance agreement. In that suit, the plaintiff has alleged that the sale deed Ex.B1 is sham and nominal. The defendant disputed that allegation and said that the sale deed in his favour - Ex.B1 is valid and the property was purchased by him for valid consideration. He also denied having executed any reconveyance agreement. Ex.A4 is the Judgme nt of the trial Court in O.S. No. 8o5 of 1973, dated 14.7.1975. Issue No. 1 in that case was “Whether the sale deed dated 12.7.62 is only a nominal one as alleged in para 9 of the plaint?” The trial Court held that this issue is left open to be decided in a separate suit. It came to the conclusion that the reconveyance agreement is not valid in law, and finally dismissed the suit. 7. It came to the conclusion that the reconveyance agreement is not valid in law, and finally dismissed the suit. 7. The matter was taken in appeal by the plaintiff as A.S. No. 100 of 1975, on the file of II Addl. Subordinate Judge, Salem. Ex.A5 is the Judgment of the appellate Court dated 20.3.1976. In paragraph 5 of the Judgment, the lower Appellate Court held thus: — “It is the contention of the plaintiff that the sale deed executed by him and his father on 12.7.1962 is only a nominal document and on that ground he claims reconveyance. Therefore, it is necessary for a proper decision in this case to give a finding whether the sale deed in favour of the defendant executed by the plaintiff and his father is a sham and nominal document and not intended to convey title to the defendant. For creating a nominal document, there must be a motive. The motive alleged by the plaintiff is that in order to evict the prior occupants of the suit property through legal proceedings, the sale deed Exhibit B1 was nominally executed by the plaintiff and his father in favour of the defendant. But it is not made clear in what way the sale deed under Exhibit B1 had helped the plaintiffs case against the earlier occupants. It is not made out how the plaintiffs attempts to get possession from the prior occupants would have been proved futile, if he had laid the suit himself. Hence, there is no clear proof of motive for executing a nominal sale in favour of the defendant.” In Ex.A5, it was further found that the defendant was in custody of all the prior documents, and the motive alleged by the plaintiff is not correct, since the defendant obtained possession, and that the purchase of properties under Ex.B1 was after verifying that the properties are free from encumbrances, and the defendant is not a name leader. Finally, in paragraph 10 of the Judgment - Ex.A5, it was held thus: — “In view 6f the above said overwhelming circumstances, “In view 6f the above said overwhelming circumstances, I have no hesitation in coming to the conclusion that the sale under Exhibit B1 in favour of the defendant was not & nominal one. Finally, in paragraph 10 of the Judgment - Ex.A5, it was held thus: — “In view 6f the above said overwhelming circumstances, “In view 6f the above said overwhelming circumstances, I have no hesitation in coming to the conclusion that the sale under Exhibit B1 in favour of the defendant was not & nominal one. On the other hand, it is a real sale transaction under which title to the suit house had validly passed on, to the defendant.” In paragraph 11 of the Judgment — Ex.A5, it was held that “the agreement for reconveyance is not a true document and the defendant has also not executed any agreement of reconveyance as alleged in the plaint, and therefore, the plaintiff cannot get a decree for specific performance.” The appeal was dismissed with costs. 8. Against the said Judgment, plaintiff preferred S.A. No. 224 of 1977. Ex.A17 is the copy of Judgment made by this Court in the said Second Appeal. While dismissing the Second Appeal, this Court held thus: — “If Ex.B.1, the alleged sale by the father of tile plaintiff and the plaintiff in favour of the defendant itself as per the above recitals was sham and nominal, and that no consideration was paid, no title could pass in favour of the defendant. That being so, there is no question of specifically enforcing the suit contract under Ex.A1. The proper remedy, in my view, is to file a suit for declaration. Excepting to make these observations, I find that the judgments of both the Courts below are unassailable. The Second Appeal will stand dismissed, however without costs.” 9. The contention of the learned counsel for the appellant is that the observation of this Court viz. “the proper remedy, in my view, is to file a suit for declaration” permits him to file a suit for declaration of title and recovery of possession. The principle of res judicata will not apply, when such permission is granted is the sum and substance of the argument of learned counsel for the appellant. As against the said contention learned counsel for the respondents contented that the above observation should not be construed as a liberty to file a fresh suit, for the suit has been dismissed, confirming the Judgment of the trial Court as well as the Lower Appellate Court. As against the said contention learned counsel for the respondents contented that the above observation should not be construed as a liberty to file a fresh suit, for the suit has been dismissed, confirming the Judgment of the trial Court as well as the Lower Appellate Court. According to the respondents, the above observation is one of the reasonings for dismissing the Second Appeal, and to hold that the reconveyance agreement would not have been executed if the sale is sham and nominal. It is further contended that the above observation is only the result of the recognition of the case of the defendant that the earlier reconveyance agreement was a fraudulent document and at any rule the principle of res judicata cannot be taken away by those observations. 10. After having considered the rival contentions of both the counsel, I feel that the contention of the defendant has to be accepted. 11. In one of the very early decisions of the Privy Council reported in A.I.R. 1925 P.C. 55 = 22 L.W. 58 (Fateh Singh and others v. Jagannath Bakhsh Singh and another), a similar question was considered. The facts before the Privy Council were that certain reversioners instituted a suit for declaration that a gift deed by a Hindu widow is void as against reversionary heirs of her husband. Besides the widow and the alienee some other persons were also impleaded as defendants, including a person by name Ganga Bakhsh, who was a nearest reversioner. Under normal circumstances, the suit ought to have been filed by Ganga Bakhsh, being the nearest reversioner. It is alleged in that case, that the nearest reversioner is in-different to his rights, and therefore the plaintiff being remote reversioner is entitled to have a declaration. During the pendency of the suit, the widow died, whose alienation was sought to be set aside. An application for amendment of the plaint was made by adding a prayer for possession and also by adding a new ground for such a claim, viz., that according to the custom, both the nearer as well as the remote heirs will inherit the property. The app lication for amendment was dismissed on the ground that it was an attempt to introduce a new case averring the family custom. The suit was also dismissed. The app lication for amendment was dismissed on the ground that it was an attempt to introduce a new case averring the family custom. The suit was also dismissed. In the result portion it was held thus: — ‘I, therefore, order that the plaintiffs being one degree remoter to the last male holder than Defendant No. 3 they have no cause of action. The suit must be, therefore, dismissed.’ After the dismissal of the suit, some of the reversioners filed a second suit for the same relief. In that suit the alienee contended that the decision in the earlier suit is res judicata. The said contention was accepted. While dismissing the second suit filed by the reversioners, the trial Court has also observed thus: — “The death of the lady has given the plaintiffs a fresh cause of action for possession. I leave them to the liberty of filing a fresh suit for possession.” The effect of this observation was also considered by their Lordships of the Privy Council, and held thus: — “When the plaintiffs brought their first suit, they had to show their title to impeach the widows gift. For this purpose they had to show either that they were some at least of the nearest reversionary heirs, or that the only nearer reversionary heir had colluded with the widow. In their plaint they did not rely on collusion, which they only introduced in their replication. Taking, however, that view of the pleadings which is most favourable to them and treating them as relying equally on both grounds of claim, it is now clear that they can only make out a claim to be some of the next reversioners on the footing of the family custom, and that the allegation of that custom therefore was an allegation which “might and ought to have been made” within the meaning of Explanation 4 Or, to put it in another way. One of the alternative cases on which they were basing their title to sue was their nearness of km, and to prove their nearness of kin it was essential to over the family custom. They claimed as next heirs, and their claim was dismissed. They cannot fight it over again. One of the alternative cases on which they were basing their title to sue was their nearness of km, and to prove their nearness of kin it was essential to over the family custom. They claimed as next heirs, and their claim was dismissed. They cannot fight it over again. But as the Judges in the Court of the Judicial Commissioner have observed, some complication was introduced by the language of the Judge who tried the first case and by his expressing himself as if he had power to give leave to bring a fresh suit. It was contended on behalf of the plaintiffs that in so expressing himself he was purporting to exercise the powers given to the Court by Order 23, which allows the Court in certain cases to grant the plaintiff permission to withdraw from a suit with liberty to issue a fresh suit, in which case the bar against a fresh suit which is otherwise imposed on a plaintiff who abandons his first suit is removed. The same point was raised at their Lordships bar, but their Lordships agree with the Court of the Judicial Commissioner that it is not a good one. There was no application for leave to withdraw the suit, nor was it withdrawn; it was dismissed and the power of the learned Judge ceased upon this dismissal. It may have been unfortunate for the plaintiffs that the learned Judge thought that he had a power which he did not possess, hut happily, as the Judges on the appeal observed, it is improbable that there was substance in the claim which they have been prevented from further prosecuting. In passing it may be observed that if the learned Judge thought that he was exercising power under 0.23 he must also have thought that the subject matter of any future suit would be the same subject mutter as that of the suit which-he dismissed. This confirms the view which the Courts below and their Lordships have taken.” (Emphasis supplied) 12. The above decision was considered by our High Court in. A.I.R. 1925 Madras 1162 = 22 L.W. 170 ( Palani Goundou and others v. Suppia Goundan and others ). This confirms the view which the Courts below and their Lordships have taken.” (Emphasis supplied) 12. The above decision was considered by our High Court in. A.I.R. 1925 Madras 1162 = 22 L.W. 170 ( Palani Goundou and others v. Suppia Goundan and others ). In that case, a previous suit by a presumptive reversioner for declaration that a mortgage by widow was not binding on the reversionery heirs was dismissed, on refusal of his prayer to withdraw the suit with permission to bring a fresh suit with the following remarks: — “Alter all this suit is only for a declaration and there is no hardship for the plaintiffs-reversioners if no permission to bring a fresh suit for declaration is granted; for they could after the widows death bring a suit for possession, contesting also the present alienations,” On the basis of this observation, a second suit was filed. The question was whether this observation will take away the applicability of res judicata, since the earlier suit was dismissed. At pages 1165 & 1166 of the reports, it was held thus: — “The respondent supports his contention that the matter has not become res judicata, by relying upon the (above) passage in the order of the District Munisif in the previous suit, the order referred to by me, by which permission to withdraw from the suit with liberty to file a fresh suit was refused. I fail to see how these observations of the Munsif can prevent the rule of res judicata from applying In Fatch Singh v. Jagannath Baksh Singh (1925 PC 55 = 22 L.W. 58), already referred to, a similar contention was put forward by reason of the words: “I leave them to the liberty of filing a fresh suit for possession,” occurring in the previous judgment. But that contention was over-ruled by the Judicial Committee. The respondent also relies upon Shiga Reddi v. Subba Reddi (AIR 1915 (39) Madras 987). The second suit for possession was held not barred under O. 23, R. 1, by reason of the first suit for declaration being withdrawn without liberty. This is clearly not an authority in favour of the respondent. The respondent also relies upon Shiga Reddi v. Subba Reddi (AIR 1915 (39) Madras 987). The second suit for possession was held not barred under O. 23, R. 1, by reason of the first suit for declaration being withdrawn without liberty. This is clearly not an authority in favour of the respondent. O. 23, R. 1 C1.3 says: — “where the plaintiff withdraws from a suit without the permission referred to in sub-R.(ii), he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.” The case, referred to, decided that the suit for possession cannot be considered as having been brought in respect of the same subject-manor as the earlier suit for declaration. In the present case this section is utterly inapplicable for the very simple reason that the plaintiff has not withdrawn from the suit without permission. It was open to the plaintiff to have adopted this course. But the case was allowed to be tried and judgment was delivered in due course. I am clearly of the opinion that the subject-matter of the action has become res judicata and that the plaintiffs suit, therefore, tails. The second appeal is accordingly allowed and the suit is dismissed with costs throughout.” 13. In A.I.R. 1931 Madras 268 ( Krish naswami Mudliar v. Manikka Mudali ), a learned Judge of this Court has held that “even if the plaintiff had alternative claims arising out of the same cause of action, he might and ought to have set up his alternative claims.” In the previous suit, the following observation was made by the District Munsif: — “If the amount was found not to be due from defendant I, the plaintiff will get a cause of action to sue defendant 2 for damages. This the plaintiff can do only in a separate suit making the necessary allegations.” Considering the above observation, the learned Judge held thus: — “There is abundant authority for the position that no such statement as this in a judgment will create in the plaintiff any right to bring a fresh suit which he does not already enjoy. This the plaintiff can do only in a separate suit making the necessary allegations.” Considering the above observation, the learned Judge held thus: — “There is abundant authority for the position that no such statement as this in a judgment will create in the plaintiff any right to bring a fresh suit which he does not already enjoy. The code provides only one set of circumstances in which such a right arises, namely under the terms of O. 23, R. 1, and as has been pointed out in Fatch Singh v. Jagannath Bakhsh Singh (cited supra), it is a necessary part of the procedure that in respect of a portion of the claim the plaintiff should withdraw his suit or abandon part of his claim; and it is only then that permission can be granted to him to institute a fresh suit in respect of the subject-matter withdrawn or abandoned. No such circumstances arises in the present case, and I cannot find therefore that the plaintiff can derive from what the District Munsif said any defence against the plea of res judicata which appear s to me to be clearly established,” 14. The decision reported in A.I.R. 1931 Bombay 417 ( Vyankatesh Shiverram Gokhale v. KrishnaBal Chavan and others ) is a case where landlord filed a suit for eviction alleging that the tenants are annual tenants. The tenants in that case put forward a contention that they are not annual tenants but permanent tenants. Rejecting their claim, the suit was decreed. When the matter was taken in appeal, a contention was taken before the Appellate Court, that they could not adduce their evidence and the question whether they are permanent tenants may be left open to decide by a separate suit. On the said representation, t he appellate Court held that “the permission asked for is granted and the appeal is dismissed with costs.” On the basis of this observation, a separate suit was filed alleging that they are permanent tenants. What is the effect of the earlier decision was the question that came up for consideration before the High Court of Bombay. At page 418 of the reports, it was held thus: — “Order 12, P.6, was referred to for the tenants. But that rule refers to admissions and judgments on admissions and has no application to the present question. What is the effect of the earlier decision was the question that came up for consideration before the High Court of Bombay. At page 418 of the reports, it was held thus: — “Order 12, P.6, was referred to for the tenants. But that rule refers to admissions and judgments on admissions and has no application to the present question. Had the former suit been a suit for rent and not in ejectment and capable of decision without deciding the question of permanent or annual tenancy and being so decided, that judgment could not be res judicata; Surendra Nath v. Kamakhya Narain Singh (AIR 1930 PC 45) But as pointed out above, that was not the case, and under the circumstances it has been held by this Court that (he mere fact that the Court refers the party in its judgment to a fresh suit or gives liberty to bring a fresh suit is not sufficient to take the case out of the bar of res judicata: Tara Chand v. Bai Hansli (1904 (6) Bom. L.P.594). In that case the plaintiff who sued on title could have sued in the alternative as mortgagee, but did not do so and asked for an amendment at a late stage and was refused but the Court in its judgment referred him to a fresh suit. Such a permission in a judgment was held to be no bar to the application of the doctrine of res judicata when he filed subsequently a suit on his mortgage. Similarly, reversioners who ought to have relied upon custom but failed to do so and whose amendment for an addition was refused, filed a second suit relying upon custom; it was held that though the trial Court while refusing the amendment gave them liberty to file a fresh suit for possession, the second suit was barred by res judicata: Patch Singh v. Jagannath Bakhsh Singh (AIR 1925 PC 55) In this view it appears to me that here the permission which the defendants-tenants sought could not be given to reserve the only question in suit. It was a permission which they could not apply on the most elementary principles of judicial decision and which the Court could not give, and the permission purporting to be granted by the learned subordinate Judge in appeal cannot save the present suit from being res judicata. It was a permission which they could not apply on the most elementary principles of judicial decision and which the Court could not give, and the permission purporting to be granted by the learned subordinate Judge in appeal cannot save the present suit from being res judicata. They admitted their failure to adduce evidence in that suit to prove permanent tenancy They could not ask and the subordinate Judge had no power to give them permission to raise the same question in a second suit with liberty to adduce fresh evidence.” 15. In AIR. 1990 Kerala 88 (Bharathi Amma and others v. Kumaran Peathambaran and another), a learned Judge of Kerala High Court held that “bar of res judicata is mandatory. When it is applicable, it could be avoided only on grounds available under S. 44 of the Evidence Act. Res judicata is not concerned with the question whether the previous decision is right or wrong.” 16. Mulla On Code Of Civil Procedure — Fifteenth Edition-Vol. 1 — 1995, at pages 180 & 181, the learned author said thus: — “(9) Liberty To Bring A Fresh Suit: — Where a former suit between the same parties in the same Court and for the same relief results in a decree of dismissal, but the Judgment leaves it open to the plaintiff to bring fresh suit and leaves “open untouched and undecided all matters” affecting the right of the parties, the decree does not constitute res judicata, as such matters cannot be said to have been “heard and finally decided” within the meaning of this section. But if the Court has in the particular circumstances of a case no power to reserve liberty to a party to bring a fresh suit the subsequent suit may be barred as res judicata notwithstanding the liberty to bring a fresh suit. Thus, in “Watson v. Collector of Rajshahye, the former suit was dismissed for the plaintiffs failure to produce evidence, but a direction was given that the plaintiff could institute a fresh proceeding as if no suit had been brought. Nevertheless the Privy Council held that the subsequent suit was barred by res judicata for the reservation was of no effect. Again, Fateh Singh v. Jagannath Bakhsh , is a case directly on this point. Nevertheless the Privy Council held that the subsequent suit was barred by res judicata for the reservation was of no effect. Again, Fateh Singh v. Jagannath Bakhsh , is a case directly on this point. In that case the plaintiffs brought a suit to set aside a gift made by a Hindu widow out of her husbands estate, they alleged that they were presumptive heirs. The widow died pending the suit. After her death the plaintiffs applied to amend the plaint by setting up a family custom of inheritance. Upon that application failing and the plaintiffs admitting that apart from the alleged custom they could not succeed, the trial Court dismissed the suit, but gave them liberty to file a fresh suit for possession. Subsequently, the plaintiffs brought another suit to recover from parties to the former suit a share in the property basing their claim upon family custom. It was held that the suit was barred by res judicata since the custom was a matter which might and ought to have been set up in the former suit, and further, that the trial Court having dismissed the suit, it had no power under O. 23 r. 1(1), to give liberty to bring a fresh suit.” 17. On the basis of the above legal position, it cannot be doubted that the Judgment of this Court will not give the plaintiffs a liberty to file a fresh suit and the applicability of res judicata also cannot be taken away. The Court finds that the Judgments in O.S. No. 805 of 1973 and A.S. No. 100 of 1976 are unassailable, and the Second Appeal is dismissed. The, plaintiff also did not seek a liberty to file a fresh suit and he did not want permission to withdraw the suit, after filing the Second Appeal. In spite of the fact that the trial Court in O.S. No. 805 of 1073, held whether Ex.B1 is sham and nominal need not be considered, when the matter was taken in appeal, he again asserted his right that Ex.B1 is sham and nominal and wanted a decision on that point. The appellate Court considered this question and held by entering detailed reasoning that Ex.B1 is a valid transaction and has come into effect and the defendant is the owner having purchased the property for valid consideration. The appellate Court considered this question and held by entering detailed reasoning that Ex.B1 is a valid transaction and has come into effect and the defendant is the owner having purchased the property for valid consideration. By dismissing the Second Appeal, this Court upheld that decision by stating that they are unassailable. The observation made, while dismissing the Second Appeal, is not a liberty to file a fresh suit, for Order 23, Rule 1, C.P.C., has no application to the facts. If Order 23, Rule 1, C.P.C., has no application, the liberty is also not given. 18. According to me, the observation could be supported in favour of the defendant. If the case of the plaintiff is that Ex.B1 is sham and nominal, he need not have taken an agreement for reconveyance. By taking an agreement for reconveyance, he admits the title of the defendant, and therefore, he cannot contend that Ex.B1 is sham and nominal. It is in that context, this Court held that if Ex.B1 is sham and nominal, the suit ought to have been one for declaration and recovery of possession and not for specific performance of the agreement for reconveyance. It is only one of the supporting reasons for dismissing the Second Appeal. Holding that Ex.B1 is not a sham and nominal document, is not a liberty given to the plaintiff to file a fresh suit. I hold that the finding of the Courts below that the present suit is barred by res judicata is correct. The other two questions do not arise for consideration, in view of my finding that the suit is barred by res judicata. Findings on those issues are also entered in the previous litigation. Therefore, those questions of law are also to be found against the appellant. 19. In the result the substantial questions of law are found against the appellant, and the second appeal is dismissed with costs.