Judgment S.N.Pathak, J. 1. This second appeal is directed against the judgment dated 19.1.88 and decree dated 2.2.88 passed by 6th Additional District Judge, Siwan, in Title Appeal No. 169/83, confirming the judgment of the trial court dated 9.11.83 passed by 5th Additional Munsif, Siwan, in Title Suit No. 226/81. 2. The case of the plaintiff-appellants in the lower court was that they are the heirs of one Narsing Sah. There were two brothers namely, Ramlal Sah and Khelawan Sah, who owned and possessed survey plot nos. 1478 and 1479. Ramfal Sah left behind his sons, Anand Sah and Bishwanath Sah. Khelawan Sah left behind his son Baijnath Sah, the original defendant no. 1 of the suit. Anand Sah and Baijnath Sah along with their minor brother Bishwanath Sah executed a Jarpesgi (mortgage) of both the aforesaid plots on 14.11.37 in favour of Narsing Sah. Subsequently, Bishwanath Sah died. Thereafter Anand Sah and Baijnath Sah executed a sale-dded dated 15.9.71 in favour of Narsing Sah, who got 1 katha 2 dhurs of land of plot no. 1478. The earlier mortgage was mentioned in the deed and the mortgage money was adjusted towards part of the consideration money. Narsing Sah came in possession on the basis of the sale-deed. However, on account of the mistake of scribe plot no. 1478 was mentioned as 1471 in the deed, in question. In course of time some structures on plot no. 1478 got demolished. Thereafter Narsing Sah constructed a tiled osara for running a shop. A shop of utensils was set up in the aforesaid room. Baijnath Sah and Anand Sah left the village Hasanpur and went to village Chainpur. Subsequently in the year 1365 fasti Baijnath Sah returned to the village and wanted to live in the western room constructed on the suit land and then Narsing Sah allowed him to live in the aforesaid room for one month. Subsequently, when Baijnath Sah refused to vacate the room; he rather filed a false case against Narsing Sah which ended in acquittal, but some observations were made in the judgment of the Gram Panchayat against the interest of Narsing Sah. Then Narsing Sah filed a title suit no. 177/62 seeking declaration of his title. The suit was decreed. Then there was an appeal by Baijnath Sah. The appellate court allowed the appeal. Then Narsing Sah filed a title suit no. 177/62 seeking declaration of his title. The suit was decreed. Then there was an appeal by Baijnath Sah. The appellate court allowed the appeal. In spite of this Narsing Sah was recognised as a tenant by the ex- landlord who realised rent from him. After abolition of Jamindari Narsing Sah started paying rent to the State Government. Baijnath Sah thereafter executed a deed of gift in favour of Prabhunath Gupta (defendant no. 2 of the suit). Baijnath Sah also filed a criminal case against Narsing Sah emboldened by the decision of the appeal. Narsing Sah was convicted, but the judgment of conviction was pending in appeal. Thereafter Baijnath Sah filed a false petition before the C.J.M., Siwan, and got a forced entry inside the suit house after breaking open the lock with the help of the police on 24.7.76. Some aluminium utensils and Rs. 200/- in cash were taken away by the defendant Baijnath Sah. Thereafter on refusal of Baijnath Sah to return the articles and to vacate the house, in question, the suit was filed seeking declaration of title and recovery of possession. 3. The defendant through their W.S. had built up a case that the alleged "Makphula deed" and the sale-deed executed by Baijnath Sah and his brother Anand were forged and sham documents. Baijnath Sah had never left village Hasanpur nor he had gone to village Chainpur. He was living in the room on the suit land throughout and there was no question of his permissive possession of the suit house. Baijnath Sah had rightly executed a deed of gift in favour of defendant no. 2 and subsequently defendant no. 2 executed sale-deed in favour of defendant nos. 3 to 7 and they were in possession and the suit was fit to be dismissed. 4. The learned trial court on the basis of documentary and oral evidence adduced by the parties dismissed the suit on the ground that the present suit was barred by res judicata and, so, the plaintiff was not entitled to any relief. The appellate court also affirmed this judgment of the trial court and, hence, this appeal has been filed by the plaintiff-appellants, 5. In the lower court the judgment of the trial court in title suit no. 177/62 as also the judgment of the appellate court in appeal no. 92/84 of 1969/73 (Ext. The appellate court also affirmed this judgment of the trial court and, hence, this appeal has been filed by the plaintiff-appellants, 5. In the lower court the judgment of the trial court in title suit no. 177/62 as also the judgment of the appellate court in appeal no. 92/84 of 1969/73 (Ext. 1/1) were filed. The judgment of the second appeal passed by the High Court (642/75) was also filed (Ext. H/3). Admittedly, the earlier suit was between the same parties, namely, Narsing Sah and Baijnath Sah whose heirs are party to the present suit and appeal before this Court. So, both the parties are litigating under the same title and the earlier suit was also over plot no. 1475 having the same area of 1 katha 2 dhurs. Admittedly, the earlier suit was decreed in favour of heirs of Narsing Sah and the judgment of the aforesaid suit was filed in the lower court (Ext. 1). The earlier suit was also for declaration of title over the land of 1 katha 2 dhurs of plot no. 1478 and for recovery of possession of a room or confirmation of possesion. The appeal filed by Baijnath Sah, of course was allowed (judgment of that appeal has also been filed as Ext. K). On the basis of earlier judgment of the trial court and the appellate court, learned Munsif and the 1st appellate court, whose judgments are under appeal in this second appeal, had dismissed the suit and allowed the appeal holding that the reliefs claimed for in the present suit were barred by res judicata. However, it was submitted before me by the plaintiff-appellants lawyer that the trial court in the earlier suit had decreed the suit and consequently allowed all the reliefs sought by the plaintiff-appellants. The appellate court confined its judgment to the limited issue whether Baijnath Sah was in possession of the room on the suit plot by virtue of permissive possession or he was holding it in his own right. So, the issue of title was waived by the appellant in the earlier appeal which was filed by Baijnath Sah. So, this issue remained undecided by the earlier appellate court and, hence, the judgment of the earlier trial court remained conclusive and since it was not decided by the appellate court, there was no question of res judicata in the present suit. So, this issue remained undecided by the earlier appellate court and, hence, the judgment of the earlier trial court remained conclusive and since it was not decided by the appellate court, there was no question of res judicata in the present suit. In this connection, I find that the perusal of the judgment of the first appellate court (Ext. K) would be very much relevant to come to the conclusion whether the court in the earlier appeal had failed to decide the title of the plaintiff- appellant or not. By earlier second appeal (Ext. H/3) the appeal preferred by the heirs of Narsing Sah was dismissed. It was a judgment of two sentences to the following effect: "Heard further. This appeal is dismissed". This judgment was passed, perhaps, in admission stage under Order 41, Rule 11 C.P.C. Normally, under Order 41, Rule 11 C.P.C. an order is passed either admitting or dismissing the appeal stating therein some grounds. So, it appears, perhaps, that earlier order passed in the earlier second appeal was a mechanical order and without application of judicial mind. Hence, I do not think that this should prevent the party from seeking justice in the subsequent appeal or suit if it was wronged and its civil rights were infringed and denied by mechanical judgment. The primary duty of a court of law is to impart justice to the parties and if technicalities come in the way, the courts are free to over-come this technical impediment and do justice to the parties seeking it. So far the earlier judgment of the first appellate court is concerned (Ext. l/1), I find that paragraph 4 shows that the appellant (Baijnath Sah) had admitted the "Makphula" (usufructuary mortgage) and the sale-deed executed by him and his cousin Anand Sah in favour of Narsing Sah. So, it is further apparent that there was no denial of the alleged "Makphula" and the sale-deed executed by Baijnath Sah and his cousin Anand Sah. In the instant suit, it was the contention of Baijnath that both these deeds were sham transactions. However, these deeds were not denied in a specific and clear terms. It was rather pleaded that Baijnath was under debt of one Md. Yasin who had obtained L.T.Is. of Baijnath on blank pieces of paper, on the basis of which he was hurling some threats. However, these deeds were not denied in a specific and clear terms. It was rather pleaded that Baijnath was under debt of one Md. Yasin who had obtained L.T.Is. of Baijnath on blank pieces of paper, on the basis of which he was hurling some threats. So, to avoid threats, Baijnath Sah executed sale-deeds, but no consideration was paid. This contention of Baijnath was insincere because he had failed to make any connection between Yasin and Narsing Sah. So, what was his compulsion to execute the sale-deed in favour of Narsing Sah was not at all explained. The best evidence for passing of consideration of sale-deed is the document itself and. therefore, Baijnath had to lead the evidence that he had paid no consideration for executing sale-deed. On the other hand, there was evidence on behalf of plaintiff Narsing Sah or his substituted heirs in the earlier suit to prove consideration and the trial court held the sale-deed to be genuine and valid on the basis of evidence. The reference to admission of Baijnath Sah regarding "Makphula" and the sale-deed as stated in paragraph 4 of Ext. l/1 is also a clear indication of the fact that the sale-deed of 1941 executed by Baijnath Sah was almost admitted. Once this was held to be so, the only question that remained to be considered was whether Baijnath Sah was holding the room on the suit land by way of his own right or by way of asserting hostile title or by way of permissive possession. In this connection, paragraph 7 of the judgment of the earlier first appellate court-(Ext. l/1) is further more enlightening. The statement at paragraph 7 indicates that the appellant (Baijnath Sah) had confined his appeal to the only question whether he was holding the suit land by way of permissive possession or in his own right inspite of the sale-deed allegedly executed by him. The appellant had, perhaps, sought the appellate court to decide the aforesaid question without looking into the question of title of the respondents (heirs of Narsing Sah). The court had also stated at paragraph 10 that in view of the aforesaid facts, the only point for determination in this appeal was "whether the appellant was inducted as licensee on 10th Mah 1367 fasli (1960) or he continued to remain in the suit premises even after execution of the sale-deed in 1941". The court had also stated at paragraph 10 that in view of the aforesaid facts, the only point for determination in this appeal was "whether the appellant was inducted as licensee on 10th Mah 1367 fasli (1960) or he continued to remain in the suit premises even after execution of the sale-deed in 1941". Thus, the appellate court proceeded to decide the appeal only on the limited question whether the defendant Baijnath Sah was holding on to the suit premises as a licensee or in his own right. The appellate court decided that Baijnath Sah was living in the room on the suit land throughout inspite of the sale-deed and he was not a licensee of Narsing Sah or his heirs. It, therefore, allowed the appeal and set aside the judgment of the learned Munsif and dismissed the suit. On the basis of the aforesaid judgment of the earlier first appellate court in the earlier appeal, it was submitted before me that since the entire appeal was dismissed by the appellate court, the appellate court had in substance refused to grant any of the reliefs sought by the plaintiff including the reliefs relating to declaration of title and, so, under Section 11 C.P.C. fresh claim of the plaintiff-appellant regarding declaration of title is barred. The respondents lawyer relied in support of the contention specially in view of the explanation V of Section 11 C.P.C. All that, explanation V of the aforesaid section has laid down is that any relief claimed in the plaint which is not specially granted by the decree shall for the purposes of this section be deemed to have been refused. But I am of the opinion that refusal of any relief may not necessary amount to a decision on the issue directly and substantially in issue in any previous suit. Admittedly, in the previous suit the relief of the plaintiff regarding declaration of title was granted. The appellate court left the issue untouched and proceeded to decide the only issue whether the defendant Baijnath Sah was a licensee over the suit land. Admittedly, in the previous suit the relief of the plaintiff regarding declaration of title was granted. The appellate court left the issue untouched and proceeded to decide the only issue whether the defendant Baijnath Sah was a licensee over the suit land. The very fact that the earlier appellate court stated at paragraph 4 that execution of the sale-deed and the Makpula were admitted, the appellate court recognised that the sale-deed was valid as held by the trial court and when the appellant Baijnath who himself did not want the appellate court to decide the issue relating to title, any concession by the respondents lawyer to leave this issue by the appellate court was a concession which may not go against him because the plaintiff who had succeeded in the lower court had nothing to lose by this concession. The appellant Baijnath Sah had to lose by conceding to this fact, because he had already lost in the trial court. So, it was a clever device adopted by the appellant Baijnath Sah in order to obviate the probability of confirmation of the trial courts judgment regarding the title of plaintiff Narsing Sah. The appellate court in the previous appeal fell in this trap and left the issue of title undecided. Of course, he dismissed the entire suit and that way it may be interpreted that he had failed to grant relief regarding declaration of title; but I am not enamoured of this technical defect in judgment of the previous appellate court because leaving the issue undecided, he had almost allowed the judgment of the trial court to remain neither confirmed nor reversed. So, I am of the opinion further that explanation V of Section 11 C.P.C. cannot be stretched too far in its technical import and purport to hold that relief regarding title of the appellant remained conclusive in order to invite application of the principle of res judicata as laid down in Section 11 C.P.C. If, however, it is interpreted a bit straightway, it would be deemed that the decision of the trial court in the earlier suit was impliedly confirmed because appellant Brijnath Sah neither wanted the appellate court to decide this issue nor the appellate court decided it either confirming or reversing the decision of the trial court. So, if at all there was any res judicata, it was in favour of the appellant, heirs of Narsing Sah, and against the heirs of Brijnath Sah or Brijnath Sah himself. However, if inspite of this decision in the earlier suit and the appeal Brijnath Sah was holding on to his possession, the plaintiff was, of course, bound to file a fresh suit for recovery of possession as also for a formal declaration of his title because without seeking this relief, he would not be able to seek recovery of possession. I am, therefore, of the opinion that the subsequent suit was not at all barred by application of the principle of res judicata in its substance. 6. Another legal question was also raised before me and it was averred by the respondents lawyer that Order 2, Rule 2, C.P.C. was also well applied in this suit and in the present appeal because during the pendency of the earlier suit Anand Sah, who was one of the defendants, died and his heirs were not substituted in time. When the petition was filed to substitute the heirs of Anand Sah, objection was raised and the court by its order dated 5.4.67 held that as it was a suit for eviction of the defendant Brijnath Sah, non-joinder of heirs of Anand Sah did not abate the suit. There was a revision against this order (C.R. No. 655/69), which was dismissed. So, the plaintiff had waived the relief relating to title and, hence, under Order 2, Rule 2, C.P.C. the fresh relief regarding declaration of title was barred. In this connection, I am of the opinion that simply because a court passes an order allowing the substitution and rejecting the contention that suit had abated and this order remained confirmed by High Court, still this order will not change the nature of the original suit in which relief regarding declaration of title was sought. Abatement, in question, is to be decided by the court and when the court allows the substitution of the deceased defendant or plaintiff, whatever may the grounds of substitution, abatement, if any, which had occurred, impliedly stands set aside. Besides the above, in spite of the fact that the order of the court referred to the limited question involved in the suit, the court nevertheless granted relief regarding declaration of title sought by the plaintiff. Besides the above, in spite of the fact that the order of the court referred to the limited question involved in the suit, the court nevertheless granted relief regarding declaration of title sought by the plaintiff. So, I am further of the opinion that the plaintiff cannot be deemed to have waived one of the reliefs sought in the earlier suit which can operate as a bar under Order 2, Rule 2, C.P.C. I have already stated above, how the principle of res judicata will not stand as a bar to the present suit. 7. Now, so far the grant of relief regarding recovery of possession, I find that the earlier appellate court held that Brijnath Sah was holding on the suit room in spite of the sale-deed. The appellate court did not hold that Brijnath Sah had hostile title or that he was prescribing adversely against the plaintiff Narsing Sah or his heirs or that the sale-deed, in question, had remained a paper transaction and it was not given effect to. In this connection, it is to be noted that in earlier judgment of the appellate court (Ext. 1/1) there was a clear averment that Brijnath Sah had admitted sale-deed and the "Makpula". The sale-deed and "Makpula" both were over an area of 1 katha 2 dhurs and the finding of the appellate court was confined to possession of Brijnath Sah over a particular room standing on the suit plot. So, once the earlier appellate court held that sale-deed was admitted, the title of the plaintiff Brijnath Sah or his heirs shall stand admitted. Brijnath Sah was living only in a particular room on the aforesaid land. So, even if it was held by the earlier appellate court that Brijnath Sah was living in the room inspite of the sale-deed, I do not think that the appellate court held that Brijnath Sah was in possession of the entire land over this plot sold to Narsing Sah or his heirs. So, the decision of the appellate court would not operate as res judicata over the entire land. So the claim of possession, regarding recovery or confirmation over the entire land shall not become barred by res-judicata. So, the decision of the appellate court would not operate as res judicata over the entire land. So the claim of possession, regarding recovery or confirmation over the entire land shall not become barred by res-judicata. Now, the question is whether the decision of the earlier appellate court that Brijnath Sah was living In the room of the suit house inspite of the sate was a decision to the effect that Brijnath Sah was living as a licensee or by virtue of his adverse possession. The earlier decision of the earlier appellate court is not specified in this connection. The simple decision that Brijnath Sah was living in the suit room inspite of the sale-deed does not amount to a decision whether he was a licensee or title-holder by adverse possession. Moreover, when the appellate court in the earlier appeal itself held that the sale-deed of the plaintiff Narsing Sah was valid and the judgment of the trial court was left untouched, I am of the opinion that the finding of the earlier appellate court that Brijnath Sah was still in the house in the room inspite of the sale would amount to a permissive possession and nothing more than that. Neither adverse possession was pleaded by Brijnath Sah in the earlier suit nor it was pleaded in the subsequent suit. The learned Munsif has held that when possession of Brijnath Sah was proved by evidence even without pleading of adverse possession, it amounted to adverse possession. In this connection, I am of the opinion that whatever may be the period of possession, unless the man holding possession pleads adverse possession either in the W.S. or even in his evidence in court, his possession shall never be deemed to be adverse possession. Adverse possession to defeat the title of the owner is the possession by assertion of a hostile title against the true owner, which possession is uninterrupted, peaceful and to the full knowledge of the owner. In any case, therefore, the hostile assertion of title is necessary to constitute adverse possession against the true owner. Adverse possession to defeat the title of the owner is the possession by assertion of a hostile title against the true owner, which possession is uninterrupted, peaceful and to the full knowledge of the owner. In any case, therefore, the hostile assertion of title is necessary to constitute adverse possession against the true owner. The very fact that there was sale-deed in favour of Narsing Sah and it was proved to be genuine, possession of Brijnath Sah, even though he did not shift from the room on the suit land at any moment of time even after execution of the sale-deed, still his possession on the suit room would be a permissive possession. The would be confirmed by a circumstance which was admitted by the defendant Brijnath Sah himself. This was a circumstance that Baijnath was under the employment of Narsing Sah. In such a circumstance, the chance of continuing possession by implied or express permission from the employer was rated high. In all circumstances, therefore, the possession of Brijnath Sah was a permissive possession. So recovery of possession by evicting the permissive holder of the suit room even by a successive suit was not barred. This is so, because fresh cause of action always arises for seeking the eviction of a permissive holder of a piece of land. In such a circumstance, I am of the opinion that the subsequent suit filed for evicting the defendant Brijnath Sah was not barred. 8. Yet another legal question was raised by the respondents lawyer and it was to the effect that Brijnath Sah gifted the suit iand in favour of defendant no. 2 in the year 1975 and thereafter defendant no. 2 sold the suit house to defendants 3 to 7. The suit was filed after three years of the deed of gift and, so, the plaintiff was not entitled to seek declaration of the sale-deed or deed of gift to be invalid and seek recovery of possession. In this connection, I am of the opinion that when Brijnath Sah himself parted with this title over the suit plot, subsequent deed of gift created by him was ab initio, void and subsequently another deed of sale executed by defendant no. 2 would also be void. So, neither the donee nor the subsequent vendees shall acquire any title. The suit was filed well within 12 years of the execution of the deeds. 2 would also be void. So, neither the donee nor the subsequent vendees shall acquire any title. The suit was filed well within 12 years of the execution of the deeds. So, it was not barred. In view of the aforesaid legal position, I am further of the opinion that the suit was not barred. 9. As a result of the aforesaid discussion on the entire gamut of evidence and the circumstances on record, I am of the opinion that the judgment of the two courts below are fit to be set aside. 10. In the result, this appeal is allowed and the judgments and decree passed by the two courts below are set aside. The plaintiff-appellants suit is decreed in full for all the reliefs sought. There shall be no order as to cost of this appeal.