JUDGMENT D. RAJU, C.J.—The above appeal has been filed under Order 43, Rule 1 (u) of the Code of Civil Procedure against the judgment dated 8.8.1994 passed by learned Additional District Judge (I), Kangra at Dharamshala in Civil Appeal No. 50 of 1992, whereunder the learned Judge of the First Appellate Court, while setting aside the judgment of the learned trial Judge held that the suit filed in C.S. No. 272/87 on the file of the learned Subordinate Judge 1st Class, Nurpur is not barred by principle of the res judicata and as a consequence thereof remitted to the trial Court the suit with a direction to decide the remaining issues, especially Issue No. 2 on merits as finding on Issue No. 1 was said to have been delivered by the learned Subordinate Judge in the previous suit between Defendant I No. 1 and Plaintiff No. 1. 2. The learned trial Judge has chosen to dispose of the suit I by taking for consideration Issue No. 2-A, "Whether the suit is hit I by principle of resjudicata as alleged ? OPP", as a preliminary issue j and dismissed the suit by holding that the present suit is hit by 1 the principle of res judicata and not maintainable. In coming to I such a conclusion, the learned trial Judge was of the view that I the judgment and decree passed in Civil Suit No. 219 of 1987 and | 35/88 filed on 19.3.1987 and decided on 27.2.1989, the judgment in which was marked in the present proceedings as Exhibit P-l, operated as res judicata. On appeal by the plaintiff in the present proceedings, the learned first appellate Judge as noticed earlier has set aside the judgment of the learned trial Judge dismissing the suit on the ground of the bar based on the principle of resjudicata and remitted the same for disposal afresh in the light of the directions contained in the judgment under appeal. Hence the above appeal by the defendants in the present suit. 3. Mr. Hence the above appeal by the defendants in the present suit. 3. Mr. Ajay Shanha, learned Counsel for the petitioners while placing strong reliance upon the decision reported in AIR 1979 Supreme Court 1268, Narayana Prabhu Venkateswara Prahhu v. Narayana Prabhu Krishna Prabhu (dead) by LRs, invited our attention to Explanation IV to Section 11 of the Code of Civil Procedure to contend that since the matter regarding the execution of the Will, the parties being governed by the Kangra customs in the matter of alienation, the attestation of mutation on the basis of the Will and other factual claims made stood adjudicated in the previous suit, the present suit is hit by the principle of res judicata and that it has been so rightly held also by the learned trial Judge and the learned First Appellate Judge committed grave error of law in interfering with the Said findings and the judgment of the learned trial Judge. 4. Per contra Mr. G.D. Verma while placing reliance upon the decision reported in AIR 1966 Supreme Court 1332, Sheodan Singh v. Darvan Kunwar, 1999 (1) SLJ815; Ferro Alloys Corporation Limited and another v. U.O.L and others and AIR 1989 Supreme Court 2240, Pandurang Ramchandfa Mandlik (since deceased by his LRs) and another v. Smt Shantabai Ramchandra Ghatge and others, with equal force contended that the reasons assigned by the learned first Appellate Judged to come to the conclusion that the present suit is not hit by principle of res judicata is well merited on the facts and circumstances of the case as also on the provisions engrafted in Section 11 of the Code of Civil Procedure and therefore, no exception can be taken to the judgment directing remand of the suit for disposal afresh subject to the directions contained in the judgment under challenge in this appeal. 5. Both the learned Counsel appearing on either side invited our attention extensively to the judgments of the Courts below in the present proceedings as also to the earlier judgment in the previous suit filed by the (1st defendant), the third appellant herein which was marked as Ext. P-1 in the present proceedings. 5. Both the learned Counsel appearing on either side invited our attention extensively to the judgments of the Courts below in the present proceedings as also to the earlier judgment in the previous suit filed by the (1st defendant), the third appellant herein which was marked as Ext. P-1 in the present proceedings. In order to appreciate the plea of res judicata and the further question as to whether the present proceedings are hit by the principle of res judicata engrafted in Section 11 of the Code of Civil Procedure, it is but appropriate as well as necessary to advert to such details as to the parties to the proceedings in the earlier suit as also in the present suit, the nature of the claim or the rights or title projected as also the issues raised and decided in addition to the manner of disposal given to those issues by the Court, in the earlier suit. 6. The earlier suit, namely, Civil Suit No. 219/87 and 35 of 1988 have been filed by Kultar Singh third appellant (1st defendant) in the present proceedings on 19.3.1987 seeking for declaration to the effect that the plaintiff and the defendant in the said suit (Onkar Singh) the 1st plaintiff in the present proceedings (1st respondent) are in joint cultivation/possession in equal shares over the suit land comprised in the lands enumerated therein measuring about in all 3-27-92 HM (85 Kanals 8 Marias) situate in tikka and mauza Hagwal, Tehsil Nurpur, District Kangra as per copy of jamabandi for the year 1982-83 with consequential relief of permanent injunction restraining the defendant from claiming himself to be exclusive owner in possession over the suit land in any manner. The basis of such claim as could be seen from the facts summarised from the pleadings of the parties is that the father of the plaintiff and defendant in the earlier suit by name Nand Singh who was the owner of these properties died on 23.7.1986 leaving behind, according to the plaintiff in the earlier suit, the will dated 23.7.1984 in favour of his two sons who were the only parties in the earlier suit bequeathing all his moveable and immoveable properties in equal shares to them, that the said will was given effect to and mutatuion of the properties was accordingly attested in favour of both the sons equally and the defendant in the other suit is attempting to threaten that nothing will be given to the plaintiff on the basis of the said will and instead claims himself to be the exclusive owner of the suit lands. It is in such circumstances a declaration of joint ownership in possession was claimed with equal shares with consequential relief of permanent injunction to protect such joint possession. The defendant appears to have filed a written statement disputing the maintainability of the suit in the form in which it has been filed, asserting further that the plaintiff was only owner of l/6th share and the remaining 5/6th share belonged to other legal heirs of late Nand Singh, including all the four daughters of late Nand Singh and that the suit was also bad for non-joinder of the necessary parties, namely, the daughters of deceased late Nand Singh. On merits it appears to have been the claim of the defendant in the earlier suit that though Nand Singh died on 23.7.1986 he did not execute or leave any will as claimed and that he had no sound disposing state of mind also to execute any such will and that even otherwise the deceased Nand Singh and parties to the suit including other legal heirs, being members belonging to the "Rajput Community" which is predominantly said to be an agricultural tribe governed by the Kangra custom in the matter of alienation, according to which the land could not be alienated by any means than by usual inheritance, the heirs of late Nand Singh including the daughters, would be entitled to the properties and the same could not have been transferred by means of any will. It is on the above basis of the claims made by the parties, the following issues were framed in the earlier suit: “1. Whether the father of the parties, had executed a registered will in favour of both the parties, registered on 23.7.1984 in which he had bequeathed his all moveable and immoveable property in equal share between the plaintiff and defendant as alleged? OPP. 2. Whether the plaintiff and defendant are joint owner in possession in equal shares over the suit land on the basis of said will and the defendant has no right to claim himself as exclusive owner in possession over the suit land as alleged? OPD. 3. Whether the suit of the plaintiff is not legally maintainable in the present form as alleged? OPD. 4. Whether the plaintiff is estopped to file the present suit as alleged? OPD. 5. Whether the suit of the plaintiff is bad for non-joinder of necessary parties, as alleged? OPD. 6. Whether suit land was ancestral qua Nand Singh? OPD. 7. Whether the parties are governed by Kangra custom* regarding the alienation of the ancestral property, if so what is its effect in the present case? OPD. 8. Whether after death of Shri Nand Singh his all children are his legal heirs to inherit suit land in equal shares as alleged? OPD. 9. Relief." 7. It is interesting to note also further that while dealing with issues No. 1 and 2 in the said suit the learned trial Judgp came to the conclusion that the plaintiff and defendant are not joint owners in possession over the suit land, in equal shares. As for issue No. 3 it was held that the suit as framed for the relief claimed was in order. As for issue No. 4 it has been held that there was no estoppel which precluded the plaintiff from filing the earlier suit. As for issue No. 5, the learned trial Judge has held that as the plaint and the plaintiffs averments stand it does not reveal that the suit was bad for non-joinder of any other necessary parties. As for issue No. 6, it has been held that the suit land was ancestral in the hands of Nand Singh qua both the parties. As for issue No. 6, it has been held that the suit land was ancestral in the hands of Nand Singh qua both the parties. In respect of issue No. 7 it has been held that for want of evidence it cannot be held that parties to the suit are governed by Kangra customs regarding alienation of ancestral property. On issue No. 8, the trial Court held that the materials on record disclosed that deceased Nand Singh had six children and that the teeth of the failure on the part of the plaintiff in the earlier suit to prove any will having been executed by late Nand Singh, after the death of Nand Singh all his children are his legal heirs to inherit the suit land in equal share, and consequently the suit came to be dismissed. The plaintiff in the earlier suit has not chosen to file any appeal against the said judgment and allowed the judgment to become final. 8. So far as the present suit is concerned it is seen from the judgments of the Court below as also the records received from the Court below that Civil Suit No. 272/87 out of which the present appeal arise, has been filed even as early as on 2.4.1987 and the plaintiffs who filed the suit are the one son of late Nand Singh by name Onkar Singh, who was only defendant in the earlier suit, and all the four daughters of Nand Singh joining together as plaintiffs in the said suit, the plaintiff in the earlier suit Kultar Singh the other son of Nand Singh as also alienees from the said Kultar Singh being arrayed as defendants. The relief sought for in the present suit is by way of a declaration for joint possession of 5/6 shares of land in the suit properties. It was claimed therein that late Nand Singh the last owner of the properties which was the subject matter of the suit died on 23.7.1986 leaving behind six children (two sons and four daughters) the wife having said to have been pre-deceased late Nand Singh, and that the plaintiffs are entitled to inherit the properties and the defendants are entitled only to inherit l/6th share due to the 1st defendant. It has also been claimed that the mutation entered and sanctioned on the basis of a fictitious will cannot be acted upon and has no legal effect or consequence. The plea based on the parties belonging to Rajput Community and the applicability of Kangra customs was also urged adverting to the alienation said to have been made by the 1st defendant in the present suit in favour of defendants 2 and 3 and that the registered sale deed dated 28.3.1987 is illegal, void and ineffective on the rights of the plaintiffs and that the 1st defendant in the present proceedings has no right to sell the half share of the suit land and if at all he having got l/6th share of the same the other defendants cannot claim any better rights. The 1st defendant filed separate written statement contending by way of preliminary objection that the suit was not maintainable in the present form as the suit should have been filed for declaration and in the alternative for possession, that the plaintiff has no locus-standi to file the suit, that it is bad for mis-joinder of parties and that the plaintiff No. 1 and the defendant as per the last will and testament dated 23.4.1984 registered with Sub-Registrar, Nurpur are entitled to equal shares of the estate of the deceased and as such the suit is bad for non-joinder of parties. It was also contended that the parties in the suit are not governed by the Kangra customs, and therefore, Nand Singh had every right to have the will registered and the property in question was not an ancestral one. The present suit is alleged to have been filed by the 1st plaintiff in collusion with others and not properly valued. On merits the present first defendant appears to have virtually reiterated the case pleaded in the earlier suit as plaintiff, and also asserting his right to alienate his half share. So far as defendants 2 and 3 are concerned they filed a joint written statement almost on the same lines on which the first defendant has chosen to contest the claim of the plaintiff and in addition it has been claimed that a consideration of Rs. So far as defendants 2 and 3 are concerned they filed a joint written statement almost on the same lines on which the first defendant has chosen to contest the claim of the plaintiff and in addition it has been claimed that a consideration of Rs. 48,000/- had been paid to the vendor namely, first defendant and that the plaintiffs are legally bound by the same and they are also purchasers in good faith, for value without notice and are protected in law in respect of the sale in dispute. 9. On the above claims and counter claims made by the parties, the learned trial Judge appears to have initially formulated three issues and thereafter issue No. 2-A. Though the parties to the present proceedings as such have not raised any plea of resjudicata apparently on the pleadings and in the light of the earlier decision rendered in the previous suit, the Court must have framed the issue 2-A which is as follows : "2-A Whether the suit is hit by principle of resjudicata as alleged? OPP" 10. It is on the said issue, tried as a preliminary issue after marking the judgment and decree in the earlier suit as Exts. P-I and P-2 and placing reliance upon Explanation IV to Section11 of the Code of Civil Procedure, the learned trial Judge has held that the present suit was hit by principle of resjudicata particularly the principle engrafted in Explanation IV. 11. We have carefully considered the submissions of the learned Counsel appearing on either side in the light of the above factual details set out, in extenso. Section 11 of the Code of Civil Procedure in so far as it is relevant for our purpose states as follows :— “11. Resjudicata.—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 IV.—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in each suit. Explanation VI.—Where persons litigate bonafide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating." 12. Before expressing our conclusions on the plea of resjudicata it is useful to refer to the decisions relied upon by the learned Counsel appearing on either side. The decision reported in AIR 1977 Supreme Court 1680 (State of Uttar Pradesh v. Nawab Hussain) strongly relied upon for the appellant cannot be of any assistance whatsoever to the case on hand. That was one rendered in the context of Explanation VI in a partition proceedings. The every explanation will make it clear that it has relevance only in a case where the persons litigate bona fide in respect of a public right or of a private right "claimed in common for themselves and others" so as to make all persons interested in such right to be bound by such decisions rendered, and to such judgment operate as res judicata in subsequent proceedings. So far as the earlier suit filed was concerned it was only a right claimed by the plaintiff who is the first defendant herein exclusively for himself and the only defendant in the earlier suit who is the first plaintiff in the present suit. The said suit was not a suit for partition which can be said to be for and on behalf of parties or the benefit of all sharers. The decisions in AIR 1966 Supreme Court 1332, AIR 1989 Supreme Court 2240 and 1999 (1) SLJ 815 (supra), deal with only the well settled principles governing the principles of res judicata as also constructive res judicata. Explanation IV in substance embodied the principle of constructive res judicata, when it stipulate that any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit to attract the bar of res judicata engrafted in the main provision. 13. 13. The essential ingredients and pre-conditions required to attract the principle of res judicata enshrined under Section 11 of the Code of Civil Procedure are that the suit which is said to have been hit by the principle of res judicata must involve directly and substantially the same issues which had been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or suit in which such issues have been subsequently raised has already been heard and finally decided. The Explanations not only explain the ambit of the main provision but has at times the effect of enlarging to a limited extent by itself being an independent provision to effectively enforce the principle of res judicata engrafted in the main provision. The facts and circumstances of the present case would go to show that not all of the parties in the present suit were parties in the earlier proceedings nor all the issues raised in the present proceedings have been directly and substantially in issue between the same parties or between the parties under whom they or any of them claim litigating under the same title. The daughters of late Nand Singh who had their own independent rights and share in the properties as the heirs of late Nand Singh were not made parties to the earlier proceedings. The nature of rights claimed and asserted in the earlier proceedings being mainly based on an alleged will and mutation attested on that basis are wholly different from the nature of rights claimed and merely because certain common factual averments have been made in both the proceedings it cannot be held that the issues involved in both the proceedings were directly and substantially the same, That apart it is well settled that the plea of res judicata is not available against a party whose claim was accepted in the earlier proceedings. The judgment of the learned trial Judge in the earlier proceedings would go to show that the claim of the plaintiff in the said suit for the equal share was not only rejected but it has been declared therein that all the children of late Nand Singh are entitled to the property comprised in the estate of late Nand Singh in equal share of l/6th and that, virtually it is that only which the plaintiffs in the present suit are trying to vindicate and consequently it does not lie in the mouth of the appellant who had lost earlier projecting the claim for equal share press into service even the plea of res judicata. If at all, the earlier decision on certain issues constituted res judicata, it will operate so to disentitle the present appellants from projecting in these proceedings the very same claim on the basis of an alleged will and mutation effected on such alleged will, which has raised and rejected in the earlier suit filed by the 1st defendant in the present proceedings. Even otherwise, the earlier suit filed by the Plaintiff therein (1st Defendant now) has been dismissed and though to some extent the rights of parties have been decided, no executable decree followed from such disposal and consequently, the present plaintiffs are entitled to as also justified in seeking to get a declare, in relation to their rights properly and duly decreed. The present suit, in a sense has been filed in substance for rights which really flow also from out of the earlier decision, though in a suit contemporaneously filed. Consequently, we are of the view that the learned trial Judge misdirected himself in dismissing the present suit on the ground of res judicata and no exception could be taken to the ultimate conclusion arrived at by the learned First Appellate Judge that the present suit is not hit by the principle of res judicata and thereby directing the disposal of the suit afresh subject to the directions contained in his order. 14. The appeal is dismissed. Parties are directed through their learned Counsel to appear before Sub-Judge II, Nurpur on June 25, 1999. The record of the trial Court be remitted to the said Court forthwith. 15. 14. The appeal is dismissed. Parties are directed through their learned Counsel to appear before Sub-Judge II, Nurpur on June 25, 1999. The record of the trial Court be remitted to the said Court forthwith. 15. In view of the fact that the suit pertains to the year 1987 and the remand order confined the disposal of the suit to a limited extent only, the other issue having been already decided in the earlier suit learned trial Judge will ensure the disposal of the suit within 6 months from the date of the first date of hearing fixed for appearance of parties. Appeal dismissed.