Judgment ( 1. ) BEING aggrieved by the judgment-decree dated 13-8-96, passed by District Judge, Jabalpur in C. A. No. 26-A/95, reversing the judgment-decree dated 6-9-95, passed by III Civil Judge Class I, Jabalpur in C. S. No. 253-A/94, plaintiff/appellants have preferred this appeal under Section 100, CPC. ( 2. ) THE appeal was admitted on the following substantial question of law:-"whether the defendant was estopped from challenging the validity of Mehernama dated 12-9-1949 on the principle of estoppel ?" ( 3. ) PLAINTIFF/appellants instituted C. S. No. 253-A/94 in the Court of iii Civil Judge Class I, Jabalpur seeking relief of possession and recovery of mesne profit in respect of the suit house No. 244, Block No. 23, Nalband mohalla, South Miloniganj, Jabalpur, fully described in Para 1 of the plaint against Late Shekh Mohammad son of Mohd. Yakub. On his death, name of defendant/respondent Akbari Begum was substituted. It was stated that Late jabunissa was wife of Late Mohd. Yakub Khan, who was owner of the suit house. The suit house was given to Jabunissa by Mohd. Yakub in Meher on 24-11-47. Thereafter on 12-9-49, a document acknowledging the fact of giving suit house in Meher was executed. Vide registered sale-deed dated 16-6-82, late Jabunissa sold the suit house to the plaintiff/appellants. Late Shekh mohd. was living in one part of the suit house. The suit was resisted by the defendant/respondent on the ground that Late Mohd. Yakub never gave the suit house to his wife Late Jabunissa in Meher on 24-11-47 and 12-9-49. Late mohd. Yakub was the owner of the suit house and Late Jabunissa was entitled to inherit only to the extent 1/8 share in the suit house. Custodian of evacuee property, declared the suit house as evacuee property of Late Mohd. Yakub. M. P. No. 52/54 was therefore, filed by him in High Court of Judicature at nagpur. This petition was allowed vide order dated 17-9-54, declaring Late mohd. Yakub to be the owner of the suit house. Name of Late Mohd. Yakub was remained mutated in the corporation record. ( 4. ) LATE Mohd. Yakub had instituted C. S. No. 422-A/5. 9 in the Court of Civil Judge Class II, Jabalpur seeking eviction of tenants Maqbool Shah and mehmood Shah. Sale of suit land by Jabunissa vide sale deed dated 16-6-82, accordingly was assailed. Sale deed dated 16-6-82, Late Shekh Mohd. Yakub was remained mutated in the corporation record. ( 4. ) LATE Mohd. Yakub had instituted C. S. No. 422-A/5. 9 in the Court of Civil Judge Class II, Jabalpur seeking eviction of tenants Maqbool Shah and mehmood Shah. Sale of suit land by Jabunissa vide sale deed dated 16-6-82, accordingly was assailed. Sale deed dated 16-6-82, Late Shekh Mohd. while threatened to be dispossessed, instituted C. S. No. lll-A/86 in the Court of II civil Judge Class II, seeking injunction restraining plaintiff/appellants from dispossessing him from the suit house. The suit was decreed vide judgment dated 26-8-86. On these facts, the right/title asserted by the plaintiff/appellant was resisted by Late Shekh Mohd. and thereafter the defendant/respondent akbari Begum. ( 5. ) CIVIL Judge decreed the suit vide judgment dated 6-9- 95 directing the defendant/respondent to deliver possession of the suit house and pay mesne profit at the rate of Rs. 150/- p. m. to the plaintiff/appellants. Being aggrieved, defendant/respondent preferred C. A. No. 26-A/95 before the District Judge, Jabalpur. This appeal was allowed vide impugned judgment dated 13-8-96. ( 6. ) FROM the perusal of the plaint in C. S. No. 253-A/94, it is clear that plaintiff/appellants asserted the title by the sale deed (Ex. P-l) dated 16-6-82, said to have been executed by Late Jabunissa widow of Mohd. Yakub. In this document, it was stated that the suit house was given to her by Late mohd. Yakub in Meher in the year 1949. It was contended that the Mehemama was subject matter of suit C. S. No. lll-A/86 filed by Late Shekh Mohd. himself in the Court of II Civil Judge Class II, Jabalpur. The suit was decreed vide judgment dated 26-6-86, wherein, it was held that the suit house was given by late Mohd. Yakub to Late Jabunissa towards the Meher on 24-11-47 and subsequently a document dated 12-9-49 acknowledging the same was executed by him. It is contended that finding recorded by the Civil Judge in C. S. No. lll-A/86 would operate res judicata and the fact of giving suit house to jabunissa in Meher was accepted by Late Shekh Mohd. Therefore, it would also operate as estoppel. On point of Mehemama, the only statement of Mohd ahmed (P. W. 1) is to the effect that the suit house was given to Jabunissa by her husband in Meher. Therefore, it would also operate as estoppel. On point of Mehemama, the only statement of Mohd ahmed (P. W. 1) is to the effect that the suit house was given to Jabunissa by her husband in Meher. The Mehemama dated 12-9-49 was produced by him in c. S. No. lll-A/86. The other witnesses Sudhama Prasad (P. W. 2), Mohd. Ayub (P. W. 3) are attesting witness of the sale deed executed by Late jabunissa. P. W. 4, handwriting expert K. R. Pilley has stated that in C. S. No. 111-A/86 signature of Late Shekh Mohd. on alleged document was compared with the standard signatures. These signatures were similar in character. Akbari Begum (D. W. 1) has stated that the suit house was never given by his father-in-law to Late Jabunissa in Meher. Statement of Akbari Begum (D. W. 1) is supported by the document (Ex. D-1), judgment of High Court of Nagpur in M. P. No. 52/54, whereby the suit house was ordered to be released to Late mohd. Yakub as it was taken by the custodian of evacuee property. The suit house remained recorded in the name of Late Mohd. Yakub in corporation record, the document (Ex. D-2) makes it clear. Further, Mohd. Yakub instituted C. S. No. 422-A/59 in the Court of Civil Judge Class II, Jabalpur seeking eviction of his tenants from the suit house is also clear from the judgment dated 21-9-60 (Ex. D-3 ). S. A. No. 424/61, arising out of the aforesaid judgment-decree filed by the tenant was allowed by the High Court vide judgment (Ex. D-4 ). At no point of time the suit house was treated to be the property owned by Late Jabunissa. Had it been given to Jabunissa in Meher, Late Mohd. Yakub ought not to have filed M. P. No. 52/54 in the High Court at Nagpur. ( 7. ) IT is contended that in C. S. No. 1 ll-A/86, filed by Shekh Mohd. , judgment dated 26-8-86 (Ex. P-2) was pronounced, wherein a finding was recorded that the suit house was given by Late Mohd. Yakub to his wife Late jabunissa in Meher, as the document dated 12-9-49 was signed by Late Shekh mohd. himself. Late Shekh Mohd. disputed the fact of suit house being given to Jabunissa in Meher and execution of document dated 12-9-49. P-2) was pronounced, wherein a finding was recorded that the suit house was given by Late Mohd. Yakub to his wife Late jabunissa in Meher, as the document dated 12-9-49 was signed by Late Shekh mohd. himself. Late Shekh Mohd. disputed the fact of suit house being given to Jabunissa in Meher and execution of document dated 12-9-49. On the basis aforesaid only, C. S. No. 11 l-A/86 was filed in the Court of Civil Judge against the plaintiff/appellants who intended to evict him from the suit house. C. S. No. 11 l-A/86 was simplicitor for the relief of injunction. There was no admission of the fact that document dated 12-9-49 was executed by Late Mohd. Yakub in favour of his wife Jabunissa. ( 8. ) UNDER Section 11, CPC 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 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. Explanations III and IV are as under :- "explanation III : The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. 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 an substantially in issue in such suit. " ( 9. ) LEARNED Counsel for the appellants contended that Ex. P-2, judgment dated 26-8-86 in C. S. No. 11 l-A/86 would operate res judicata. C. S. No. 11 l-A/86 simplicitor was for seeking relief of injunction restraining plain-tiff/appellants from evicting Late Shekh Mohd. on the basis of sale deed said to have been executed in their favour by Late Jabunissa. The case of the plaintiff/appellants that the suit house was given by Late Mohd. Yakub to his wife Jabunissa in Meher on 24-11-47 and subsequently the document dated 12-9-49 was executed by him, was resisted Late Shekh Mohd. In Sri Pal and others Vs. The case of the plaintiff/appellants that the suit house was given by Late Mohd. Yakub to his wife Jabunissa in Meher on 24-11-47 and subsequently the document dated 12-9-49 was executed by him, was resisted Late Shekh Mohd. In Sri Pal and others Vs. Swami Nath and others, AIR 1968 Allahabad 282, it was held that finding given against a party in proceeding which terminates in favour of that party does not operate as res judicata in subsequent litigation in which similar controversy arises. ( 10. ) C. S. No. 11 l-A/86 was decreed vide judgment dated 26-8-86 (Ex. P-2) and relief of injunction against plaintiff/appellants as prayed by Late shekh Mohd. was granted. Therefore, against any incidental discussion in the judgment on fact of giving suit house in Meher on 24-11-47 and subsequently executing document dated 12-9-49 by Late Mohd. Yakub or finding could not have been assailed by Late Shekh Mohd. by filing an appeal under Section 96 of the CPC. In the circumstances, as has been held in Sri Pal and others Vs. Swami Nath and others (supra) an observation incidentally made by the Civil judge in C. S. No. lll-A/86 would not operate res judicata. ( 11. ) IN this case, there is no evidence to the effect that at any point of time, Late Shekh Mohd. admitted the fact of suit house been given to jabunissa in Meher vide document dated 12-9-49. Question of estoppel in the circumstances challenging validity of Mehemama would not arise. ( 12. ) CONSEQUENTLY, the Court below rightly discussed the evidence and recorded a finding that the suit house was owned by Late Mohd. Yakub and was held by him till his death. On his death, Jabunissa the widow alone was not competent to execute a sale deed dated 16-6-82. Accordingly, vide impugned judgment, the appeal was rightly allowed by setting aside the judgment-decree dated 6-9-95 passed by III Civil Judge Class I, Jabalpur in C. S. No. 253-A/94. The appeal fails and is dismissed. Appellants shall bear their costs and pay the cost of the respondents. Counsel fees as per rule or certificate (whichever is less ). Second Appeal dismissed.