JUDGMENT 1. - This litigation has a very chequered history. The plaintiffs Shiksha Prasar Samiti, Ratangarh, a charitable and registered society and its Chairman Shri Mahaveer Prasad and Secretary Ghanshyam Chand Shastri filed the present suit for possession as a second innings of litigation between the same parties on 9.1.1975. 2. The plaintiffs claimed that the property in question which is situated at Ratangarh and was of the ownership of one late Smt. Jamna Devi widow of Mangalchand, Dhapu Devi widow of Maluram and Sarva Shri Arun Kumar, Kailash Prasad and Nandklshore Poddhar, which was known as 'Kundwala Nohara', the boundaries of which have been detailed in para No. 1 of the plant was donated to the plaintiffs vide Gift Deed dated 24.10.1966 through a registered Donation Deed. Since before the date of gift, defendant No. 1 Ramniwas was looking after the property as it caretaker on behalf of the above erstwhile owners and the house of said Ramniwas is also situated behind the Nohara in question and, therefore, for the purpose of convenience, a Gate was affixed between the house of Ramniwas and the property in question with the permission of erstwhile owners of the property in question. However, after the property became the property of done es, vide Notice dated 27.11.1967, said Ramniwas was informed that his services as caretaker are no more needed and, therefore, the opening between the two properties may be closed. However, said Ramniwas did not agree to it and therefore, that has resulted into litigation between the parties. 3. In the first instance, Civil Suit No. 233 of 1967 was filed in the court of Civil Judge, Ratangarh which was ultimately transferred to the court of Munsif, Ratangarh and was registered as Civil Suit No. 39 of 1970. In that suit, a written statement was filed on 5.1.1968 by the present appellants, who were also examined as witnesses in the earlier litigation, denying the title of the donors, challenged the validity of the gift and also claimed adverse possession over the property in question. The said suit was in the first instance decreed by the trial court vide Judgment and decree dated 12.10.1970 whereby the defendants were restrained from interfering with the construction of building in the said Nohara in question in any way to be carried out by the plaintiffs. The said suit was in the first instance decreed by the trial court vide Judgment and decree dated 12.10.1970 whereby the defendants were restrained from interfering with the construction of building in the said Nohara in question in any way to be carried out by the plaintiffs. Against that judgment and decree dated 12.10.1970, an appeal was filed which also came to be dismissed by the first appellate court vide its judgment and decree dated 27.5.1971. 4. Against the Judgment and decree dated 27.5.1971 passed by the first appellate court, the defendants preferred a second appeal before this Court, which was allowed in part and the judgment and decree dated 27.5.1971 passed by the learned Addl. District Judge, Churu was set aside and the matter was remitted back to the first appellate court for deciding the same afresh on oral as well as documentary evidence with respect to the points in issue in accordance with the law. This Court directed the first appellate court to determine the question firstly, whether the alleged donors of the Nohara in question owned it and secondly in case the title to Nohara was proved whether they had gifted the same to the plaintiffs and thirdly whether the defendants acquired title by adverse possession. 5. The first appellate court vide its Judgment and decree dated 8.8.1974 decided the above-mentioned three questions in favour of the plaintiffs by holding that the title of the owners and the factum of gift in favour of plaintiffs are duly proved and that the defendants were not in adverse possession of the property in question. On the issue about the nature of the defendant's possession over the property in question, the first appellate court categorically held "that possession on the Nohara was that of Ramniwas when the suit was filed but his possession was only as a caretaker of "donors". The court further drew a legal inference "that the position of Ramniwas was not that of a tenant who by operation of law becomes tenant of the transferee. So by operation of law, Ramniwas cannot be said to be a caretaker of plaintiffs, who was previously a caretaker of donors". The court further drew a legal inference "that the position of Ramniwas was not that of a tenant who by operation of law becomes tenant of the transferee. So by operation of law, Ramniwas cannot be said to be a caretaker of plaintiffs, who was previously a caretaker of donors". In view of the aforesaid findings, the first appellate court by observing that the plaintiffs have not secured amendment of the plaint for the relief of possession, the suit for permanent injunction must fail and the plaintiffs must seek their remedy for possession. 6. This led to the filing of the present suit on 8.1.1975, which has been decreed in favour of the plaintiffs once again vide judgment and decree dated 30.11.1978. Against the judgment and decree dated 30.11.1978 passed by the learned District Judge, Churu, the defendants preferred the present appeal in which this Court vide its order dated 11.2.1992 after framing the following additional Issue, remitted the case back to the first appellate court for recording a fining thereon and then to return the same back to this Court. 1 d%&Dk uksgjs ds nkunkrkvks dh vksj ls uksgjs dh fuxjkuh ds fy, jkefuokl izfroknh la[;k 1 dks fuxjkuhnkj fu;qDr fd;k gqvk Fkk vkSj mls uksgjs dh mRrjh ckM+ esa ekxZ j[k ysus dh vuqefr Hkh ns nsh xbZ Fkh rFkk bldk okn ij D;k IkzHkko gS \ &oknhx.k 7. The learned first appellate court vide its Judgment and order dated 6.8.1994 decided the said issue in favour of the defendants and against the plaintiffs. 8. The learned first appellate court vide its Judgment and order dated 6.8.1994 decided the said issue in favour of the defendants and against the plaintiffs. 8. The trial court initially framed the following Issues: 1- vk;k oknxr uksgjk Lo0 teuknsoh] /kkihnsoh] v:.kdqekj] dSyk'k izdk'k o uUnfd'kskj ds LokfeRo dk Fkk\ 2- D;k Lo0 teuknsoh /kkihnsoh] v:.kdqekj] dSyk'k izdk'k o uUnfd'kskj us f'k{kk izlkj lfefr jrux< oknh la0 1 ds Ik{k es fnukad 24-10-1966 dks oS| :Ik (Validly) ls nku dj fn;k \ 3- D;k oknxr uksgjs ij izfroknhx.k ij Lokeh ds :Ik es 50 o"kksZ ls fojks/kh dCtk pyk vk jgk gS vkSj og ifjiDo gks pqdk gS\ 4- D;k vihy U;k;ky; vfrfjDr ftyk U;k;k/kh'k] pq: dk fnukaad 8-8-1964 dk fu.kZ; izkax U;k; (res-judicata) dk izHkko jgrk gS] ;fn ugh rks] mldk D;k egRo gS\ 5- D;k okn vof/k ds Hkhrj ugh gS\ 6- D;k oknxr uksgjs dk ewY; 50]000 :Ik;s gS vkSj U;k;'kqYd iwjk ugh pqdk;k x;k A 7- D;k oknxr uksgjs es fufeZr Bkao izfroknhx.k ds fpuok;s gq, gS vkSj bldk nkos ij D;k izHkko gS \ 8- D;k f'k{kk izlkj lfefr dk iath;u u gksus dh voLFkk esa ;g okn ugh lquk tk ldrk\ 9- D;k f'k{kk izlkj lfefr ds lnL;ks dh la[;k vf/kd ugh gS] blfy, lc lnL;ks dks Ik{kdkj cuk;k tkuk vko';d gS\ 10- D;k nkuik= vi;kZIr LvkEi ij gS blfy, lk{; es xzkg~; ugha gS\ 11- vuqrks"k and Issue No. 1-A was added by this Court as aforesaid. 9. Upon appreciation of evidence, the learned first appellate court while deciding Issue No. 1 held that plaintiffs are the owners of the property in question. While deciding Issue No. 2, the trial court observed that erstwhile owners of the property in question have validly donated the property in question in favour of the plaintiffs vide Gift Deed dated 24.10.1966. Issue No. 3 was also decided in favour of the plaintiffs and it was held that the plaintiffs have been able to prove that the defendants have organised Akhara in the years 1961, 1962 and 1963 after obtaining permission of the ladies of the household of Poddhare (two of the donors) viz., Smt. Jamna Devi and Smt. Dhapoo Devi and Rughnathsingh and Ramlal cleared the Pala and Long. It also found that Ramniwas deposited the amount of 5 Annas on behalf of Mst. It also found that Ramniwas deposited the amount of 5 Annas on behalf of Mst. Dhapoo in the court by pointing out the discrepancy in the statement given by defendant Ramniwas in his earlier statement Ex.9 in the previous suit and the statement of denial in the present suit for the purpose of relying the evidence of plaintiffs in this regard. The court further found that after organising Akharas in the property in question, the keys thereof were returned back to the wife of Mangalchand Poddhar. Thus, the defendants have failed to prove their adverse possession over the property in question for the last 50 years. 10. Issues No. 5 to 10 were also decided in favour of the plaintiffs and ultimately, the suit filed by the plaintiffs was decreed as aforesaid. As noticed above, on additional issue framed by this Court, the learned first appellate court recorded a finding that said Ramniwas was not appointed as caretaker by the donors of the property in question. 11. I have heard the learned counsel for the appellants. None appears on behalf of the respondents. I have also gone through the record of the case. 12. The principal contention raised on behalf of the defendant-appellants in this case in that the plaintiffs have failed to prove their title as well as possession over the property in question within 12 years from the filing of the suit even if the title is held to be proved in their favour and, therefore, the suit for possession must fail. 13. Having considered the contentions raised by the learned counsel for the appellants, I am of the opinion that in the first instance the finding recorded by the trial court that principle of res judicata cannot be applied to this case does not appear to be correct. It is true that ordinarily a finding recorded against a successful party who has no opportunity to challenge that finding in the appeal does not bind him and such a finding does not operate as res judicata for him in the subsequent litigation but this rule is not without exception and cannot be applied with a straight jacket mind. It is true that ordinarily a finding recorded against a successful party who has no opportunity to challenge that finding in the appeal does not bind him and such a finding does not operate as res judicata for him in the subsequent litigation but this rule is not without exception and cannot be applied with a straight jacket mind. The principle is well established through a large number of decisions that generally an adverse finding against a defendant in a decree of dismissal of suit would not operate res judicata but it is equally well settled that where such an adverse finding form fundamental part of the decree itself, it operates as res judicata in spite of the fact that the decree is one of dismissal. 14. In Murad Biswas v. Basti Mandal AIR 1929 Cal-449, the previous suit was between the parties for declaration of title of the land and for has possession thereof. The defence of the defendant in the suit was that he was not a tenant holding under the plaintiff but was a co-sharer of the plaintiff. On these pleadings, the question of title and the defence was gone into and the Court found that the plaintiffs title to the land was made out but on finding that notice has not been served on the defendant, the suit for possession was dismissed. Thereafter, after service of notice, the suit for possession was filed. A question was raised that earlier finding to the title recorded against the successful defendant was not binding. The Calcutta High Court rejecting the plea of the defendants found that "the facts, therefore, are not that the suit was dismissed on a preliminary point making it unnecessary for the Court to go into the other questions that arose in the suit but that the questions were decided and made the foundation of a decree declaring the plaintiffs title and one of the prayers in the suit, namely, that for khas possession was refused on the ground that notice had not been served on the defendant." In arriving at this conclusion, the court relief on an earlier decision of the Privy Council in Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy AIR 1922 PC-241 wherein the court said that they do not consider that a decision will found on actual plea of res judicata where the defendants having succeeded on the other plea, had no occasion to go further as to the finding against them. 15. This view was reiterated by the Madhya Bharat High Court in Mattulal v. Madhya Bharat Govt. (1955) ILR- IV Madhya Bharat-165) wherein the court said: What becomes res judicata is what is fundamental to the decision. In the present case, the existence of a valid contract and its breach was fundamental to the decision of the court holding that the State was entitled to get damages only to the extent of the amount of deposit. The rule that if the plaintiff's suit is dismissed, no issue decided against defendant can operate as res judicata against him in a subsequent suit, for the defendant cannot appeal from the finding of any such issue is only confined to finding incidental and not fundamental to the decision. 16. In this connection, the Madhya Pradesh High Court relied on the following observations of Muttusami Ayyar, J. in Ali Moidin v. Kombi ILR 5 Mad.-239: That the plea of res judicata is a bar, under Section 13 of Act 10 of 1877, not only to the trial of a suit, but also to the trial of any one of the issues in a suit which may have been finally heard and determined, and which may form the ground or one of the grounds of the decision, and that it may bar the trial of such an issue, though the ground of action in the second suit is not the same as in the first. 17. It may be noticed in the Madras case, the plaintiffs first suit having been dismissed on the ground that the plaintiffs enquity of redemption has been sold in execution of a decree to 'A', subsequent suit was filed after repurchasing the equity of redemption to redeem the land in defendant's possession. The defendant contested the suit on the ground that the finding given in the earlier suit about existence of mortgage is not binding on the defendant as he had no occasion to prefer the appeal against the finding recorded against him. The defendant contested the suit on the ground that the finding given in the earlier suit about existence of mortgage is not binding on the defendant as he had no occasion to prefer the appeal against the finding recorded against him. The Court held that notwithstanding that finding on the issue which was material for giving relief to the defendant rejecting the finding about the sale of equity of redemption by the plaintiff was essential for the decision and operated as res judicata. 18. The same view was expressed by S. Murtaza Fazl Ali, J. in Shamnath v. Mohd. Abdullah (AIR 1967 J & K-85) in the following words: It is true that generally an adverse finding against a defendant in a decree for dismissal of the suit would not operate as res judicata but it is equally well settled that where such an adverse finding forms a fundamental part of the decree itself it operates as res judicata in spite of the fact that the decree is one of dismissal. 19. The Court after referring to the decisions of the Privy Council in Chockalingam v. Seethal Ache AIR 1927 PC 252 and Midnapur Zamindary Co. v. Naresh Narayan AIR 1922 PC-241 and the decision of the Calcutta High Court in Murad Biswas v. Basti Mandal AIR 1929 Calcutta-449 observed that it would thus appear that the test Lald down by the Privy Council in Midnapur Zamindary Company's case (supra) is that where the particular plea has been fully gone into by a court in a previous suit and forms a fundamental part of the decree, even if the decree is one of dismissal of the suit, this finding will operate as res judicata in the subsequent suit. 20. In the present case, the previous suit was filed by the present plaintiffs on the basis of their title to the property and alleged refusal on the part of the defendants to restrain themselves from interfering with the use of their proprietory right over the property in question. The defendant has clearly denied the title of the plaintiff and asserted their own title over the property in dispute. The occupation of the defendant over the property in dispute as permissive possession on behalf of previous owners was denied. The defendant has clearly denied the title of the plaintiff and asserted their own title over the property in dispute. The occupation of the defendant over the property in dispute as permissive possession on behalf of previous owners was denied. As noticed above, the plaintiffs having succeeded in two court, the High Court found it fundamental for the decision of the case to remit the case back for deciding the three issues referred to above viz., title of the donors, validity of the gift and permissive nature of the possession. Thus, in the previous litigation, the High Court where the appellants succeeded found that answer to the above three questions are fundamental to decision of the suit for giving or denying relief to any of the parties. All these findings were recorded against the defendant except to the fact that after making of the gift in favour of the plaintiffs, the status of defendant did not continue as of the licencee of the donee and, therefore, without making a prayer for possession, the suit for injunction could not be decreed by treating the defendant to be a licencee. In these circumstances, I am of the opinion that even for grant of relief to the defendant against the decree for injunction on the issues raised between the parties, an enquiry into the questions of title and nature of possession held by defendant Ramniwas and other defendants in the former suit who are also defendants in the present suit became essential either for decreeing or for dismissing the suit of the plaintiff. Therefore, merely because of a technical reason viz., absence of a prayer for possession, the defendants succeeded, findings recorded against him does not become incidental or non- essential for the decision of the suit. Once this conclusion is reached then the only course open in the subsequent suit between the same parties litigating under the same title wherein the same issues have arisen, as such, findings as to the title and the nature of possession of the defendant over the suit property binds the parties. The defendants were in permissive possession of the suit property until plaintiffs acquired the title as donees on the date of gift i.e. 24.10.1966. The defendants could not be treated to be in possession as licensees if denied also binds the parties. 21. The defendants were in permissive possession of the suit property until plaintiffs acquired the title as donees on the date of gift i.e. 24.10.1966. The defendants could not be treated to be in possession as licensees if denied also binds the parties. 21. The suit having been filed within 12 years from the date of gift i.e. 24.10.1966 i.e. in January 1975 after the possession of the defendant ceased to be permissible possession still remain to be within limitation. The only convention raised before me in this appeal must, therefore, fail on this ground. 22. With the aforesaid finding, the suit, for possession if filed within limitation, the plaintiffs are entitled to the decree for possession. 23. As a result, the appeal fails and is hereby dismissed with no order as to costs.Appeal Dismissed. *******