JUDGMENT A.K. Shrivastava, J. 1. This is defendants' second appeal against the judgment and decree of reversal passed by the Trial Court decreeing the suit of plaintiff. 2. Original plaintiff is Kasam Bhai whose legal representatives are respondents of this appeal and the original defendant is Hasanbhai whose legal representatives are present appellants. Appellant No. 1 who is one of the legal representative of defendant Hasanbhai breathed her last during the pendency of this appeal, as a result of which vide order dated 27-1-1998 her name was directed to be deleted from the array of the memorandum of appeal. For the convenience the parties who are the legal representatives of original plaintiff and original defendant, are being denoted as plaintiff and defendant. 3. Plaintiff filed a suit for the declaration that he and defendant are the owner of half portion of the suit house, (the description whereof has been given in the plaint) and possession of that portion be delivered to him. Plaintiff further sought a decree of mesne profit Rs. 1800/- and till the actual partition is effected and the possession is delivered, mesne profit be allowed to him @ Rs. 50% per month. 4. In brief the suit of plaintiff is that he and defendant are the owner of the suit house and both of them are having one half share each in the suit property. Kasambhai-plaintiff and defendant-Hasanbhai are the real brothers. One person, namely, Jamaluddin is also the brother of the parties. According to the plaintiff, he, Hasan Bhai and Jamaluddin jointly constructed the house, however, since Hasanbhai is the eldest, his name was mutated in the municipal record. Thereafter, Jamaluddin filed a suit for partition in which instead of claiming l/3rd share, he prayed for the payment of Rs. 500/- which is in lieu of his l/3rd share. This suit was decreed on 19-6-1945 and accordingly in place of l/3rd share a decree was passed for the payment of Rs. 500/- to said Jamaluddin. In that civil suit (C.S. No. 70/1351) present plaintiff and defendant were arrayed as defendants. The decretal amount Rs. 500/- was paid by plaintiff-Kasambhai to Jamaluddin. Thus, present plaintiff and defendant are the joint owners of the suit property having 1/2 share of each in it. 5. The defendant denied the averments by filing written statement. 500/- to said Jamaluddin. In that civil suit (C.S. No. 70/1351) present plaintiff and defendant were arrayed as defendants. The decretal amount Rs. 500/- was paid by plaintiff-Kasambhai to Jamaluddin. Thus, present plaintiff and defendant are the joint owners of the suit property having 1/2 share of each in it. 5. The defendant denied the averments by filing written statement. It has been denied by him that the suit house was constructed by plaintiff, defendant and their brother Jamaluddin. The land was purchased in auction sale by defendant and thereafter he himself built the house. It has been specifically admitted in para 2 of the written statement that Jamaluddin filed civil suit in which a decree for payment of Rs. 500/- was passed. He, however, denied that this amount was paid by plaintiff-Kasambhai. According to the defendant, he himself bought the land and constructed the house on it from his self-acquired money. The defendant prayed that suit be dismissed. 6. The trial Court framed issues and thereafter recorded the evidence of the parties. The trial Court dismissed the suit. 7. During the pendency of civil suit, original plaintiff and defendant died and present appellants and respondents were brought on record as their legal representatives. 8. The plaintiff preferred an appeal before Appellate Court which by allowing it, decreed the suit of plaintiff by passing impugned decree of partition. Hence this second appeal. 9. This second appeal was admitted on 15-10-1988 on following substantial questions of law : (1) Whether it is rightly held by the Court below that in a previous suit viz. Suit No. 70/1351 filed by Jamaluddin against his brother Hasan and Kasam, in the Court of the Sub-Judge Dewas it was held and decided that each of these three brothers had a one third share in the house and decision operates as res judicata in the present suit ? (2) Whether the finding of the lower Court that the plaintiff and his two brothers Hasan and Kasam jointly acquired the land of the house and built a house on it with their joint funds and that the plaintiff had therefore a one third share in the house, wrong and vitiated by reason of ignoring material evidence and making wrong assumptions not warranted by the evidence on record ? 10. 10. Regarding Substantial Question of Law No. 1 It has been vehemently contended by Shri M.L. Sanghi, Learned Counsel for the appellants that in absence of filing a copy of the plaint, written statement and judgment which include the issues, the finding of First Appellate Court holding that the decree of Ex. P-3 passed in Civil Suit No. 70/1351 operate as res judicata is contrary to the law. In support of his contention, he has placed reliance on the decision of the Apex Court in the case of Smt. V. Rajeshwari vs. T. C. Saravanabava, 2004 (1) MPJR 214 wherein the Apex Court has held that for involving the plea of res-judicata proof of plaint in the previous suit ought to be brought on record and necessary pleadings should be there in that regard. It has been further contended by Learned Counsel that in the earlier suit, as stated by plaintiff, present plaintiff Kasam Bhai and defendant - Hasanbhai were the co-defendants, but the decision would operate as res judicata between the co-defendant only if: (1) there was a conflict of interest between the co-defendants; (2) that it was necessary to decide the conflict in order to give relief which the plaintiff claimed; and (3) that the Court actually decided the question. To bolster his submission, Learned Counsel has placed reliance on the decision of Apex Court Iftikhar Ahmed and others vs. Syed Meharban Ali and others, AIR 1974 SC 749 . The Learned Counsel has also placed reliance on the Single Bench decision of this Court in the case of Radhabai vs. Kamalchand, 1967 MPLJ 94 :1967 JLJ 280 and a decision of Privy Council Maung Sein Done vs. Ma Pan Nyun and others, AIR 1932 PC 161 and also another decision of Privy Council Mt. Munni Bibi and another vs. Tirloki Nath and others, AIR 1931 PC 114. 11. On the other hand, it has been contended by Shri G. M. Chafekar, learned senior advocate assisted by Ku. Anita Jain that plaintiff never pleaded about the res judicata. Indeed, it is not his case that earlier the judgment and decree operates as res judicata. Munni Bibi and another vs. Tirloki Nath and others, AIR 1931 PC 114. 11. On the other hand, it has been contended by Shri G. M. Chafekar, learned senior advocate assisted by Ku. Anita Jain that plaintiff never pleaded about the res judicata. Indeed, it is not his case that earlier the judgment and decree operates as res judicata. Learned Counsel by inviting my attention to paras 1 and 2 of the plaint has argued that the pleading of plaintiff is that in the year 1945 there was a civil suit between the three brothers in which it was pleaded that each brother is having l/3rd share in the suit house. However, Jamaluddin did not claim l/3rd share and in lieu of it he claimed Rs. 500/- and the said suit was decreed directing to make payment of Rs. 500 to him. Learned Counsel has also invited my attention to para 2 of the plaint and has submitted that the said decision, was affirmed upto the High Court. It has been proponed by Learned Counsel for respondent that Ex. P-3, which is a decree passed in earlier suit, has been filed as a piece of evidence and not for the purpose to hold that earlier suit operates as res judicata. The contention of" Learned Counsel for respondent is that the plaintiff never raised the plea of res judicata and the First Appellate Court suo-motu held that decree of Ex. P-3 operates as res judicata. It has been putforth by Learned Counsel for respondent that if the averments made in para 2 of the plaint is read in proper perspective and reply of defendant in the written statement, it is revealed that defendant did not deny the specific averment of plaintiff that Jamaluddin, in the earlier suit claimed l/3rd share and in lieu of that share he made demand of payment of Rs. 500/- of his share and the suit was decreed accordingly on 19-6-1945 and the decree was affirmed upto the High Court. The contention of Learned Counsel is that by not denying these averments specifically, it amounts to admission as envisaged under Order VIII, Rules 3 and 5 of the Code of Civil Procedure. 12. 500/- of his share and the suit was decreed accordingly on 19-6-1945 and the decree was affirmed upto the High Court. The contention of Learned Counsel is that by not denying these averments specifically, it amounts to admission as envisaged under Order VIII, Rules 3 and 5 of the Code of Civil Procedure. 12. Though it has been argued by Learned Counsel for the respondent that there is no specific denial of the averments made in para 2 of the plaint, however, if the averments made in para 2 of the written statement is read in proper perspective, it would reveal that there is a denial. In para 2 of the written statement, it has been specifically pleaded by the defendant that in auction sale he purchased the suit land. It has been specifically denied by him that the suit land was purchased by the three brothers and it was constructed by three brothers jointly. There is specific averment of the defendant that from his own funds he purchased the land in auction sale as well as he constructed the house on the said land. Thus, to me, there is no merit in the contention of learned senior counsel of respondent that there is an admission of defendant, in terms of Order VIII, Rules 3 and 5 as he did not deny the averments specifically. 13. The contention of Learned Counsel for respondent cannot be accepted that the plea of res judicata has not been raised by plaintiff. On going through para 13 of the judgment of the Trial Court, it is revealed that plaintiff did raise this plea and also cited a decision in that regard in order to substantiate his argument. Thus, it cannot be said that plea of res-judicata was not raised by the plaintiff. On going through the judgment passed by the First Appellate Court para 5, it is gathered that plea of res-judicata was raised by the plaintiff before the First Appellate Court also. In this view of the matter, it cannot be said that plea of res-judicata was not raised by the plaintiff. Indeed, before both the Courts below the plea of res judicata was raised. The law is well settled that if plea of res-judicata is to be taken, it is to be pleaded. In this view of the matter, it cannot be said that plea of res-judicata was not raised by the plaintiff. Indeed, before both the Courts below the plea of res judicata was raised. The law is well settled that if plea of res-judicata is to be taken, it is to be pleaded. If the averments made in the plaint is considered, it is found that nowhere it has been pleaded by plaintiff that the matter which is directly and substantially in issue in the present suit, was also directly and substantially in issue in the former suit in which the decree of Ex. P-3 was passed. In absence of specific pleading in that regard, it cannot be said that the decision of earlier suit in which decree Ex. P-3 was passed operated as res judicata. In the present case, copies of plaint, written statements, issues or judgment in which issues are mentioned, of earlier suit are not filed. The filing of these documents are quite essential in order to hold that the issues of present suit were directly and substantially in issue, in the previous suit. In absence of these documents, it cannot be said that the issues of present suit are the same which were directly and substantially in issue in the previous suit. The entire finding of Appellate Court is based on the plea of res judicata which is at all not proved. Thus, substantial question of law No. 1 is answered that the decree passed in Civil Suit No. 70/1351 operate as res judicata is not proved. 14. Regarding Substantial Question of Law No. 2 : Shri G. M. Chafekar, learned senior advocate by inviting my attention to section 100(5) submits that if the second appeal has been admitted on a particular substantial question of law, the respondent shall be allowed to argue at the time of hearing of the appeal that the case does not involve such question and in this regard he has invited my attention to sub-section (5) to section 100, Civil Procedure Code. According to Learned Counsel for respondent, substantial question of law No. 2 which is framed does not arise in this appeal and this Court cannot re-appreciate the evidence. In support of his submission he has placed reliance on the decision of the Apex Court in the case of Dnyanoba Bhaurao Shemade vs. Maroti Bhaurao Marnor, AIR 1999 SC 864 . According to Learned Counsel for respondent, substantial question of law No. 2 which is framed does not arise in this appeal and this Court cannot re-appreciate the evidence. In support of his submission he has placed reliance on the decision of the Apex Court in the case of Dnyanoba Bhaurao Shemade vs. Maroti Bhaurao Marnor, AIR 1999 SC 864 . 15. The contention of Learned Counsel for the appellant is that in para 13 First Appellate Court held that the Trial Court did not consider the statement of Chhotu and Rahman who are the real brothers of plaintiff and defendants as they had said that the suit house was built by three brothers plaintiff Kasam, defendant-Hasan and Jamaluddin and they were having equal share in it. The First Appellate Court also came to the conclusion that in rebuttal defendant did not adduce any evidence. 15A. It be seen that the Trial Court very elaborately from paras 6 to 14 discussed the evidence of the parties while deciding issue No. 1 and came to hold that it is not proved that in the suit house plaintiff is having half share. Moreover, the legal representative of defendant Abdul Shakoor (appellant No. 3) examined himself since the defendant Hasan Bhai passed away before he could be examined and there is evidence in rebuttal. Learned Counsel has also invited my attention to Ex. D-1 which is the document of title in order to show that defendant Hasan bought the land in question in auction sale. Thus, the finding of Appellate Court in para 13 that there is no evidence in rebuttal cannot be sustained and it amounts to ignoring the material piece of evidence Ex. D-1 which is document of title of defendant as well as the testimony Abdul Shakoor and other witnesses examined on behalf of defendant. The substantial question of law No. 2 is answered accordingly. 16. In the result, this appeal succeeds and is hereby allowed. The judgment and decree passed by Appellate Court is set aside and the case is sent back to the Appellate Court to decide the case on merit. Since the suit was filed long back on 25-8-1977 it is expected that the Appellate Court shall decide the appeal within three months from 4-4-2005. The parties are directed to appear on the said date before the Appellate Court. Since the suit was filed long back on 25-8-1977 it is expected that the Appellate Court shall decide the appeal within three months from 4-4-2005. The parties are directed to appear on the said date before the Appellate Court. It is made clear that no notice shall be issued to any of the parties in that regard. Looking to the facts and circumstances, parties are directed to bear their own costs.