1. This Civil Second Appeal is directed against the judgment and decree dated 10.3.2005 passed by the Ist Additional District Judge, Jammu in a Civil 1st Appeal No.58, titled as Avtar Singh Pathania v. Onkar Singh Pathania and ors., whereby the appeal filed by the appellant-plaintiff came to be dismissed and the judgment and decree dated 18.11.2003 passed by the Ist Civil Subordinate Judge, Jammu in Civil Suit No.112 came to be upheld. 2. This appeal came to be admitted vide order dated 5.4.2005 and the following substantial question of law came to be framed. "Whether the decree passed in an injunction suit would operate as res judicata in a subsequent suit seeking declaration of title?" 3. Notice came to be issued to the other side and the respondents appeared. The appeal came to be partly heard on 26.5.2009 and thereafter Mr. Karanjit Singh, Advocate/learned counsel for respondents sought adjournments on 28.5.2005, 30.6.2009 and 1.7.2009 on personal grounds. The case came up for arguments on 8.7.2009 and on the said date Mr. Karanjit Singh, learned counsel for respondents did not cause appearance and, accordingly, the respondents were set exparte. 4. The appellant had filed a suit for permanent prohibitory injunction, titled as Avtar Singh Pathania v. Chairman, Sainik Cooperative Housing Building Society Ltd. & ors., in the Court of learned Sub Registrar (Munsiff), Jammu in the year 1997 and sought the following relief: "Suit for permanent prohibitory injunction with the prayer that the defendant No.1 be restrained from transferring the allotment and ownership of plot No.439 earlier allotted in the name of Sh. Onkar Singh Pathania the real elder brother of the plaintiff, for his being a men from the belt force." 5. The plaint discloses that the appellant-plaintiff had sought restraint order against respondent No.3-Society on the ground that his brother-respondent No.1 has executed necessary documents, viz Power of Attorney and Affidavit by way of unilateral declaration in his favour and possession of the same was with the appellant-plaintiff. Thus respondent No.3-Society has no right to transfer the rights of said plot in the name of any other person. The foundation of the case was based on the basis of "attorney" and "affidavit" executed by the allottee of suit plot, i.e., respondent No.1 herein. The suit was contested by defendants-respondents and 7 issues came to be framed. Issues 1 to 3 came to be treated as preliminary issues. The foundation of the case was based on the basis of "attorney" and "affidavit" executed by the allottee of suit plot, i.e., respondent No.1 herein. The suit was contested by defendants-respondents and 7 issues came to be framed. Issues 1 to 3 came to be treated as preliminary issues. It is apt to reproduce said three issues herein. "1. Whether the suit is not maintainable in terms of the provisions contained in Section 63 of the Jammu and Kashmir Co-operative Societies Act? 2. Whether the plaintiff has no locus standi to file the present suit? 3. Whether the suit property has not been properly described, if not, what is its effect?" 6. Issue No. 1 came to be decided in favour of appellant-plaintiff and against the respondents-defendants. Issues 2 & 3 came to be decided against the appellant-plaintiff and in favour of respondents-defendants by the Court of Sub-Registrar (Munsiff), Jammu vide judgment and decree dated 19.8.1998. Feeling aggrieved, the appellant questioned the same before the appellate court, i.e., Ist Additional District Judge, Jammu, who vide judgment dated 21.12.1998 while dismissing the appeal held that the appellant-plaintiff can seek the proper remedy by filing an appropriate suit for specific performance of contract. It is apt to reproduce relevant para of the said judgment herein. "If at all there is any privity of contract i.e. for an agreement for sale for that matter,, that may be between the plaintiff and the defendant No.3 and in case the said agreement is enforceable the appellant could seek the proper remedy by filing an appropriate suit for specific performance of contract in case the said agreement have any force in the eye of law seeking remedy against the person who according to him had promised to seel him the plot. On the basis of the said obligation, the plaintiff-appellant cannot seek any relief against the defendant No.1, the Sainik House Building Co-operative Society, Jammu. No right vests in a person by an agreement to sell over the property except getting the right enforced through an appropriate suit for specific performance of the agreement which the plaintiff/appellant in his own wisdom has not chosen to follow." 7. No right vests in a person by an agreement to sell over the property except getting the right enforced through an appropriate suit for specific performance of the agreement which the plaintiff/appellant in his own wisdom has not chosen to follow." 7. The plaintiff after noticing the judgment and the fact that the Lease Deed came to be executed on 20.8.1998 and registered by Munsiff Sub Registrar (Muffasil), Jammu on same day, filed a civil suit against the defendants in the Court of 1st Civil Subordinate Judge, Jammu, seeking declaration to the following effect: "Civil Original Suit for declaration to the effect that the plaintiff is the real and actual owner in possession of plot no.439 sector --F situated in Sainik Colony, Jammu, with further declaration that the Transfer/Lease Deed dated 20.8.1998 registered by the Munsiff Sub-Registrar (Muffasil) dated 20.8.1998 is null, void and inoperative, with consequential relief of mandatory-cum-permanent prohibitory injunction directing the defendant no.3 to execute Transfer Deed inn respect of said plot in favour of the plaintiff with permanent injunction restraining the defendants neither interfere in the peaceful possession of plaintiff over the said land, nor to dispossess him therefrom illegally, unauthorizedly in any manner whatsoever of any kind." 8. The respondents-defendants filed the written statement and eight issues came to be framed. Issues 1 to 3 came to be treated as preliminary issues. It is apt to reproduce the said three issues herein. "1. Whether this court has no jurisdiction to try the suit? OPD 2. Whether the suit is barred by principles of resjudicata? OPD 3. Whether plaintiff has no locus standi to file the suit? OPD" 9. The learned Judge while deciding issue No.2 held that the suit of plaintiff is hit by Explanation-IV to Section 11 of Civil Procedure Code (for short CPC) and, accordingly, held that the suit was barred by applying the principle of resjudicata. The trial court while deciding issue No.1 held that the suit was hit by resjudicata and was barred under Section 11 of CPC. Thus it had no jurisdiction to try the suit and, accordingly, decided issue No.1 in favour of respondents-defendants and against the appellant-plaintiff. The trial court while deciding issue No.1 held that the suit was hit by resjudicata and was barred under Section 11 of CPC. Thus it had no jurisdiction to try the suit and, accordingly, decided issue No.1 in favour of respondents-defendants and against the appellant-plaintiff. While dealing with issue No.3, the trial court held that in the earlier suit it was held that the appellant-plaintiff had no locus to file the same and, accordingly, the issue came to be decided in favour of respondents-defendants and against the appellant-plaintiff vide judgment dated 18.11.2003. Feeling aggrieved, the appellant-plaintiff questioned the said judgment and decree by the medium of appeal before the Ist Additional District Judge. The appellate Court vide judgment dated 10.3.2005 dismissed the appeal while upholding the judgment of trial court. The appellate court held that the question involved is not about the matter actually in issue, but it pertains to explanation-IV to section 11 CPC, which contemplates the principle of constructive resjudicata and, accordingly, held the relief of declaration sought by the plaintiff in the second round of litigation was also available to him at the time of commencement of first round of litigation, but he had not sought the same and thus explanation-IV to Section 11 CPC was applicable. The findings returned by the trial court as well as appellate court are not legally sound for the following reasons: In the earlier suit filed by the appellant-plaintiff for prohibitory injunction restraining the Society from transferring the plot in favour of any person, the plaintiff neither sought any relief of declaration against any person nor his rights were denied or threatened by any person at that particular point of time. The transfer deed/lease deed, impugned in the second suit, was not in existence at that particular point of time. The said suit of appellant-plaintiff came to be dismissed on 19.8.1998, whileas the lease deed/transfer deed came to be made by respondent No.3-Society on 20.8.1998. Thus how the appellant-plaintiff could have sought that relief when the said document was not in existence and the said document created a cloud on the title, rights and interest of the appellant-plaintiff and constrained him to file second suit. 10. Thus how the appellant-plaintiff could have sought that relief when the said document was not in existence and the said document created a cloud on the title, rights and interest of the appellant-plaintiff and constrained him to file second suit. 10. In an earlier suit the plaintiff had prayed for injunction while pleading that he was in possession of the subject matter of the suit and based his claim on the basis of Power of Attorney and Affidavit. Neither the said Power of Attorney nor Affidavit was questioned by any person nor he had sought any declaration about the title. Precisely he had sought simple restraint order. Thereafter he was constrained to file second suit, as discussed hereinabove. Then how can it be said that the principle of resjudicata is applicable. It is apt to note that the learned 1st Addl. District Judge in the first round of litigation while dismissing the appeal of appellant-plaintiff held that it is for plaintiff to enforce his right. The relevant para of the judgment is quoted hereinabove. That judgment has given cause to the appellant-plaintiff to seek enforcement of his right. His title or right has not been determined in the first round of litigation. Even the factum of possession was not determined by the Court in the said suit. 11. He has also prayed that in the present suit/second suit his possession be protected and the defendants be restrained from dispossessing him. This relief was not sought in the first suit because allotment came to be made after the judgment by the trial court on 19.8.1998 and thereafter he apprehended his dispossession. 12. It is apt to reproduce Section 11 and explanation 4 to the said section. "11. Resjudicata 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 parties 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. Explanation I. - . Explanation II. - . Explanation III. - . Explanation IV. Explanation I. - . Explanation II. - . Explanation III. - . Explanation IV. -- Any matter which might and ought to have been made ground of defence or attach in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit." 13. As discussed hereinabove, the case was based on attorney and affidavit coupled with the possession and on these bases restraint order was sought. The question of title was not directly, indirectly or substantially involved in the said suit, only relief of restraint was sought for allotting the suit land. After dismissal of the earlier suit, the allotment came to be made on 20.8.1998, which constrained the appellant-plaintiff to file the second suit. Thus explanation-IV was not applicable at all. 14. The Apex Court in case titled Sajjadanashin Sayed Md. B. E. Edr. v. Musa Dadabhai Ummer reported in AIR 2000 S.C, 1238 laid down the same principle. It is apt to reproduce paras 12, 19 and 24 herein. "12. It will be noticed that the words used in Section 11 CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only `collaterally or incidentally in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue. 19. We have here to advert to another principle of caution referred to by Mulla( p.105). "It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the Court considers the adjudication of the issue material and essential for its decision." 24. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the Court considers the adjudication of the issue material and essential for its decision." 24. These three cases are therefore instances where in spite of a specific issue and an adverse finding in an earlier suit,the finding was treated as not res judicata as it was purely incidental or auxiliary or collateral to the main issue in each of these cases, and not necessary for the earlier case nor its foundation." 15. The Apex Court in case titled T.N.Wakf Board v. Larabsha Darga reported in (2007) 13 S.C.C 416 laid down the same principle and held that principle of res judicata is not applicable in the given circumstances of the case. 16. The Apex Court in case titled Gram Panchayat, Naulakha v. Ujagar Singh reported in AIR 2000 S.C 3272 held as under. "10. We may also add one other important reason which frequently arises under Section 11 CPC. 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 nor decided. The said decision cannot, therefore, be binding on the question of title. See in this connection Sajjadanashin Sayed v. Musa Dadabhai Ummer (2000) 3 SCC 350;(2000 AIR SCW 901; AIR 2000 SC 1238) where this Court, 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 latter 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 found or based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case." 17. The Bombay High Court in case titled Sairabi Sayyad Abdul Aziz deceased Th. Her Lrs & Ors v. Abdul Rashid Abdul Majid reported in 2002(2) CCC 444(Bom.) laid down the same principle. 18. Even the mere framing of an issue on title may not be sufficient as pointed out in that case." 17. The Bombay High Court in case titled Sairabi Sayyad Abdul Aziz deceased Th. Her Lrs & Ors v. Abdul Rashid Abdul Majid reported in 2002(2) CCC 444(Bom.) laid down the same principle. 18. The Apex Court in case titled Williams v. Lourdusamy and Another reported (2008) SCCR 751, dismissed the suit holding that a decree for specific performance of contract was not prayed and thereby subsequent suit for declaration of title and recovery of possession is not barred by Res judicata. It is apt to reproduce para 14.3 herein. "14.3. In Sajjadanashin Sayed MD. B.E. EDR(D) by Lrs v. Musa Dadabhai Ummer and Others,(2000) 3 SCC 350, this Court considered the cases where in spite of specific issue and an adverse finding in an earlier suit, the same was not treated as res judicata being purely incidental or auxiliary or collateral to the main issue stating: "24. Before parting with this point, we would like to refer to two more rulings. In Sulochna Amma v. Narayanan Nair this Court held that a finding as to title given in an earlier injunction suit would be res judicata in a subsequent suit on title. On the other hand, the MadrasHigh Court, in Vanagiri Sri Seltiamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari held (see para 8 therein) that the previous suit was only for injunction relating to the crops. May be, the question of title was decided, though not raised in the plaint. In the latter suit on title, the finding in the earlier suit on title would not be res judicata as the earlier suit was concerned only with a possessory right. These two decisions, in our opinion, cannot be treated as being contrary to each other but should be understood in the context of the tests referred to above. Each of them can perhaps be treated as correct if they are understood in the light of the tests stated above. These two decisions, in our opinion, cannot be treated as being contrary to each other but should be understood in the context of the tests referred to above. Each of them can perhaps be treated as correct if they are understood in the light of the tests stated above. In the first case decided by this Court, it is to be assumed that the tests above referred to were satisfied for holding that the finding as to possession was substantially rested on title upon which a finding was felt necessary and in the latter case decided by the Madras High Court, it must be assumed that the tests were not satisfied. As stated in Mulla, it all depends on the facts of each case and whether the finding as to title was treated as necessary for grant of an injunction in the earlier suit and was also the substantive basis for grant of injunction. In this context, we my refer to Corpus Juris Secundum ( Vol. 50, para 735, p.229) where a similar aspect in regard to findings on possession and incidental findings on title were dealt with. It is stated; "Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title." Following the principle of law as enunciated in the aforementioned decision, we are of the opinion that the principle of res judicata is not attracted to the facts of the case." 19. Keeping in view the discussion made hereinabove, the principle of resjudicata was not applicable. The substantial question of law is, accordingly, answered and the findings returned by the courts below merit to be set aside. 20. The trial court as well as first appellate court has decided Issue No.1 in favour of respondents-defendants and against the plaintiff-appellant on the ground that Issue No.2 came to be decided in favour of respondents-defendants and against the appellant-plaintiff and, accordingly, held that the civil court was lacking jurisdiction to try the suit. The said finding stands set aside. Now the question is whether the trial court has jurisdiction to try the suit? The said finding stands set aside. Now the question is whether the trial court has jurisdiction to try the suit? 21. The averments contained in the plaint determine the jurisdiction. While going through the plaint, the appellant-plaintiff has sought the reliefs, quoted above, can be granted or refused only by the civil court not by any other court. Thus the civil court has the jurisdiction to try the suit. Accordingly, Issue No.1 is decided in favour of appellant-plaintiff and against the respondents-defendants and the findings returned by the trial court, upheld by the appellate court, are set aside. 22. Issue No.3 involves mixed question of facts and law and the same came to be wrongly treated as preliminary issue. Whether the plaintiff has any cause or right to file the suit is to be gone into during trial. Accordingly, the findings returned by the trial court as well as appellate court on the said issue are set aside, with a direction to the trial court to decide this issue with other issues. 23. Accordingly the appeal is allowed, impugned judgments of appellate court as well as trial court are set aside and the case is remanded back to the trial court with a direction to decide Issue No.3 with other issues. The parties are directed to appear before the trial court on 14.9.2009. 24. Registry to prepare decree sheet and thereafter send down the record of both the courts along with copies of judgment and the appeal file be consigned to records.