( 1 ) THIS second appeal is filed under Section 100 of the Civil Procedure code being aggrieved by the judgment and decree dated 6-9-2002 made in A. S. No. 144 of 1996 on the file of the learned i Additional Chief Judge, City Civil Court, secunderabad, wherein the judgment and decree dated 11-12-1995 dismissing the suit in O. S. No. 399 of 1990 on the file of the learned XVII Assistant Judge, City Civil court, Secunderabad were confirmed. ( 2 ) THERE is no necessity of going into all the details. The only substantial question of law that arises for consideration in this second appeal is whether the courts below were right in holding that the findings arrived at in O. S. No. 899 of 1970 (A. S. No. 97 of 1972) on the file of the learned I Additional Judge, City Civil Court, secunderabad as to adverse possession and title of the parties operate as res judicata in the present suit filed by the appellant ? ( 3 ) THERE is no dispute as to the fact that the parties in the present suit i. e. , O. S. No. 399 of 1990 and the suit in O. S. No. 899 of 1970 are one and the same. However, defendants 2 and 3 herein are the sons of the 3rd defendant in the above suit, namely, dandi Ellamma. The appellant herein earlier filed O. S. No. 899 of 1970 for mandatory injunction to remove the hut erected in the suit schedule property. Originally, it was filed against defendants 1 and 2 therein i. e. , Dandi Narasimha and Kuragayala mallamma and thereafter, the 3rd defendant - Dandi Yellamma was impleaded. Defendant Nos. 1 and 3 contested the suit by filing separate written statements. In her written statement, the 3rd defendant asserted that she has right and title over the suit schedule property and she is in possession of the same and even otherwise, she has perfected her title by adverse possession. An issue was framed in O. S. No. 899 of 1970 with regard to perfecting title by adverse possession by the 3rd defendant therein. After full trial, the said issue was answered against the 3rd defendant and in favour of the appellant herein. An issue was framed in O. S. No. 899 of 1970 with regard to perfecting title by adverse possession by the 3rd defendant therein. After full trial, the said issue was answered against the 3rd defendant and in favour of the appellant herein. Aggrieved by the said judgment and decree in O. S. No. 899 of 1970, the 3rd defendant therein carried the matter in appeal being A. S. No. 97 of 1972 on the file of the learned Additional chief Judge, City Civil Court, Hyderabad and the appeal was allowed. The appellate court held that the appellant herein (plaintiff in O. S. No. 899 of 1970) failed to prove the case putforth by him in the plaint, the suit for mere mandatory injunction was not maintainable without asking for recovery of possession of the property, the plaintiff also failed to prove subsisting title to the suit property and the 3rd defendant perfected her title by adverse possession. Aggrieved by the said judgment and decree of the appellate Court, the plaintiff in O. S. No. 899 of 1970 carried the matter in second appeal being S. A. No. 577 of 1973 before this Court, but the same was dismissed on 16-9-1975 confirming the findings of the appellate Court that the suit against the 3rd defendant also should have been dismissed, the suit as against the 1st defendant was dismissed by the trial Court itself and in view of the findings and having regard to the plaint and the prayer therein, the suit should have been dismissed even as against defendants 2 and 3 in O. S. No. 899 of 1970. The judgment in S. A. No. 577 of 1973 attained finality. ( 4 ) THEREAFTER, the plaintiff in O. S. No. 899 of 1970 filed the present suit in o. S. No. 399 of 1990 for declaration of title and for recovery of possession against the sons of the 3rd defendant in the earlier suit and Kuragayala Mallamma, who happens to have purchased the same under a registered sale deed. Since the issue that arose for consideration as to title between her predecessor in interest and the plaintiff, she had taken the ground that the suit itself is not maintainable and the doctrine of res judicata operates between the parties. Since the issue that arose for consideration as to title between her predecessor in interest and the plaintiff, she had taken the ground that the suit itself is not maintainable and the doctrine of res judicata operates between the parties. The trial Court, in the present case, after a detailed examination of the findings recorded in O. S. No. 899 of 1970 held that there was an issue as to perfection of title by adverse possession and the same has been substantially decided between the parties; therefore, it does not he in the mouth of the appellant herein to say that the judgment and decree made in a. S. No. 97 of 1972, which attained finality in S. A. No. 577 of 1973 does not operate as res judicata. Aggrieved by the same, the matter was carried in appeal being a. S. No. 144 of 1996 on the file of the learned i Additional Chief Judge, City Civil Court, secunderabad. The appellate Court also after a detailed consideration of the evidence adduced before the trial Court and on perusal of the judgment of the trial Court, confirmed the findings of the trial Court and held that the issue had fallen for consideration in O. S. No. 899 of 1970 between the parties and the same operates as res judicata. Aggrieved by the same, the present second appeal is filed. ( 5 ) LEARNED Counsel for the appellant strenuously contended that the very issue of perfection of title by adverse possession had not fallen for consideration directly and substantially in O. S. No. 899 of 1970; therefore, unless it is established that it was necessary in the earlier suit to decide the question of title for granting or refusing the relief sought for therein, the issue, even if it was decided between the parties, does not operate as res judicata. In this regard, the learned Counsel relied upon the judgment reported in R V S Vara Prasad v Dr V Ramdas, 2003 (3) ALD 566 = 2003 (3) ALT 716 (DB) and drawn attention of the Court to paragraphs 14 and 15, which read as under :"14. In this regard, the learned Counsel relied upon the judgment reported in R V S Vara Prasad v Dr V Ramdas, 2003 (3) ALD 566 = 2003 (3) ALT 716 (DB) and drawn attention of the Court to paragraphs 14 and 15, which read as under :"14. According to Section 11, in order to attract the principle of res judicata the matter in the subsequent suit shall be directly and substantially in issue, which was directly and substantially in issue in the former suit between the same parties litigating under the same title and finally decided by such Court The earlier suit was for an injunction simplicitor. The present suit is for declaration of title and recovery of possession of the property. Therefore, it cannot be said that the matter in the present suit is directly and substantially in issue in o. S No 58 of 1976. The Supreme Court while considering the provisions of Section 11 c. P C in Gram Panchayat of Village naulakha v Ujagar Singh and others, 2000 (7) SCC 543 held the earlier suit by the respondent against the panchayat was only a suit for injunction and not one on title. No question of title was gone into or decided. The said decision cannot, therefore, be binding on the question of title 15. In the above decision, the Supreme Court referred to a decision in Sajjadanashm Sayed v Musa Dadabhal Ummer, 2000 (3) SCC 350 , and held : where, on a detailed consideration of law in india and elsewhere held, that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was necessary in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title. "he also relied upon a Judgment of the apex Court reported in P. M. A. Metropolitan v. Moran Mar Marthoma, air 1995 SC 2001 , and drawn attention of the Court to paragraphs 46 and 47, which read as under :"46. . . . . . . . . . . . . . "he also relied upon a Judgment of the apex Court reported in P. M. A. Metropolitan v. Moran Mar Marthoma, air 1995 SC 2001 , and drawn attention of the Court to paragraphs 46 and 47, which read as under :"46. . . . . . . . . . . . . . For instance, when a decision is taken in appeal the rule is that it is the appellate decision and not the decision of the Trial Court that operates as res judicata. Consequently where a suit is decided both on merits and on technical grounds by the trial Court, and the appellate Court maintains it on technical ground of limitation or suit being not properly constituted then the decision rendered on merits by the trial court ceases to have finality. In Abdullah ashqar Ali Khan v. Ganesh Dass, AIR 1917 pc 201 the Court while considering the expression, heard and finally decided in section 10, of the British Baluchistan regulation IX of 1986 held that where the suit was dismissed by two Courts on merits but the decree was maintained in second appeal because the suit was not properly constituted then the finality on merits stood destroyed. In Shepsagar Singh v. Sitaram singh, (1897) ILR 24 Cal. 616, where parentage of defendant was decided in his favour by the trial Court but the High Court maintained the order as the suit was defective the claim of the defendant in the latter suit that the finding on parentage operated as res judicata was repelled and it was held, that the question of parentage had not been heard and finally decided in the suit of 1985. The appeal in that suit had put an end to any finality in the decision of the first Court, and had not led to a decision on the merits. 47. The rationale of these decisions is founded on the principle that if the suit was disposed of in appeal not on merits but for want of jurisdiction or for being barred by time or for being defectively constituted then the finality of the findings recorded by the trial Court on merits stands destroyed as the suit having been found to be bad for technical reasons it becomes operative from the date the decision was given by the trial Court thus rendering any adjudication on merits impliedly unnecessary. On the same rationale, once the Royal Court of Appeal allowed the review petition and dismissed the appeal as the ex-communication of Dionysius was contrary to principles of natural justice and he had not become heretic then the finding on authenticity of the canon etc. rendered in the original order was rendered unnecessary. Therefore, the finding recorded on the authenticity of the canon and power of the Patriarch etc. recorded in the earlier order could not operate as res judicata in subsequent proceedings. " ( 6 ) WHEREAS, learned Counsel for the 4th respondent while supporting the judgments of the Courts below has submitted that the issue of perfection of title by adverse possession had directly and substantially fell for consideration in the earlier suit in o. S. No. 899 of 1970 and that had attained finality; therefore, it is binding on the plaintiff and it operates as res judicata. In this regard, the leaned Counsel relied upon the judgment reported in M. S. M. Sharma v. Shree Krishna Sinha, AIR 1960 SC 1186 , wherein it has been held as under :"8. In our opinion, it does not make any difference. So long as the Assembly remains the same it is open to the Assembly to reconstitute its Committees according to the exigencies of the business of the Assembly. The Committee of Privileges is one of the agencies through which the Assembly has to transact its business. It is really the assembly as a whole which is proceeding against the petitioner in purported exercise of the powers, privileges and immunities as held by this Court in its judgment in Writ petition No. 122 of 1958 reported in AIR 1959 sc 395 . This Court has laid it down in the case of Raj Lakshmi Dasi v. Banamali Sen, 1953 SCR 154 = AIR 1953 SC 33 , that the principle underlying res judicata is applicable in respect of a question which has been raised and decided after full contest even though the first Tribunal which decided the matter may have no jurisdiction to try the subsequent suit and even though the subject-matter of the dispute was not exactly the same in the two proceedings. In that case the rule of res judicata was applied to litigation in land acquisition proceedings. In that case the rule of res judicata was applied to litigation in land acquisition proceedings. In that case the general principles of law bearing an the rule of res judicata, and not the provisions of Section 11 of the Code of civil Procedure, were applied to the case. The rule decision arrived at after due contest and after hearing the parties interested in the controversy. There cannot be the least doubt that, though no nominee opposite party No. 2 were not the same, but there is no escape from the conclusion that the Committee of privileges is the same Committee irrespective of its personnel at a given time so long as it was a Committee constituted by the same legislative Assembly. The question decided by this Court on the previous occasion was substantially a question affecting the whole Legislature of the State of Bihar and was of general importance and did not depend upon the particular constitution of the Committee of Privileges. It cannot, therefore, be said that the question decided by this Court on the previous occasion had not been fully debated and had not been decided after due deliberation. That there was difference of opinion and one of the judges constituting the Court held another view only shows that there was room for difference of opinion. It was a judgment of this Court which binds the petitioner as also the Legislative Assembly of Bihar. For the application of the general principles of res judicata, it is not necessary to go into the question whether the previous decision was right or wrong. " ( 7 ) I have given my earnest consideration to the respective submissions made by the learned Counsel on either side and perused the judgments of the Courts below and other material made available on record. ( 8 ) AT the outset, I am of the opinion that the Courts below have not committed any error calling for interference of this court under Section 100 of the Civil procedure Code. In fact, the suit in O. S. No. 899 of 1970 was filed seeking a mandatory injunction for removal of the hut in the suit schedule property against defendants 1 and 2. In fact, the suit in O. S. No. 899 of 1970 was filed seeking a mandatory injunction for removal of the hut in the suit schedule property against defendants 1 and 2. Therefore, the 3rd defendant, who was impleaded thereafter had filed a detailed written statement asserting that she is the owner of the property and even otherwise, she had perfected her title by adverse possession. There is a difference between a suit for perpetual injunction and a suit for mandatory injunction. In a suit for mandatory injunction, it is a must for the Courts to go into the title before granting such a decree; whereas, in a suit for mere injunction, it may not be necessary always, though incidental, to go into the question of title of the parties. Since in the earlier suit, the plaintiff sought for removal of the hut, an issue was framed, evidence was let in and the question as to title was gone into rightly by the Courts below. After a detailed consideration, the trial Court found that the 3rd defendant therein i. e. , the vendor of the 4th defendant herein, had failed to prove her title and also adverse possession and decreed the suit as against defendants 2 and 3 therein. But, the said judgment was set aside by the appellate Court in A. S. No. 97 of 1972 and it was held that the 3rd defendant in o. S. No. 899 of 1970 had perfected her title to the suit property by adverse possession and it was confirmed by this Court in s. A. No. 577 of 1973, which had attained finality. May be, some observations were made here and there as to whether the suit could have been dismissed even against defendants 2 and 3 therein, since it was dismissed as against the 1st defendant by the trial Court itself That itself does not mean that the issue, which had directly and substantially fallen for consideration before the trial Court in O S No 899 of 1970 becomes obliterated Whatever may be the result of the suit, but the issue was there and it was decided in favour of the 3rd defendant therein Under those circumstances, the only inference that could be drawn is, the title of the parties in the suit in O S No 899 of 1970 had directly and substantially had fallen for consideration of the Court below for deciding the issue therein and, therefore, it can be said that it is established that it is necessary in the earlier suit to decide the question of title of the 3rd defendant therein Therefore, the decision relied upon the learned Counsel for the appellant in R VS Vara Prasad s case (supra) has no relevance to the facts of this case Insofar as the judgment in moran Mar Marthoma s case (supra) is concerned, the question as to whether directly and substantially the matter had fallen for consideration before the Courts below was not considered Therefore, the said judgment also has no application to the facts of this case ( 9 ) WHEREAS, Sri R Subbarao, learned counsel for the 4th respondent, placed heavy reliance upon the judgment in MSM sharma s case (supra) and submitted that the rule of res judicata is meant to give finality to a decision arrived at after due contest and after hearing the parties interested in the controversy. For the application of the general principles of res judicata, it is not necessary to go into the question whether the previous decision was right or wrong. Once the issue had fallen directly and substantially for consideration in an earlier suit between the same parties and attained finality, it is binding on the parties and operates as a res judicata in a later suit when the parties are the same In this case, absolutely there is no dispute as to the status of the parties 2006 (2) FR-F-46 and the property. The relief sought for in the earlier suit is mandatory injunction for removal of the hut, whereas in the present suit, the relief sought for is declaration of title and recovery of possession of the same suit schedule property In the earlier suit, the title of Dandi Yellamma was declared both for the hut and the site As stated above, the parties are common, the subject- matter is common and the issue involved is also common The only dispute is whether the question of perfection of title by adverse possession by the defendants therein was necessary to be gone into in the earlier suit in the facts and circumstances discussed above, I am of the considered opinion that the issue as to perfection of title by adverse possession has rightly been gone into by the courts below in the earlier round of litigation m A. S No. 97 of 1972 and the same attained finality and as such, it operates as res judicata in the present suit. Therefore, the findings arrived at by the trial Court, which are confirmed by the appellate Court, cannot be said to be illegal ( 10 ) FOR all the above reasons, the substantial question of law raised by the appellant pales into insignificance The second appeal is devoid of merits and liable to be dismissed Accordingly, it is dismissed, but, without any order as to costs.