JUDGMENT : Tarun Kumar Gupta, J. This second appeal is directed against the judgment dated 31st May, 1991 and decree thereof passed by the learned Additional District Judge, 3rd Court, Howrah in Title Appeal No. 283 of 1985 reversing the judgment and decree dated 31st July, 1995 passed by the learned Munsif, 5th Court, Howrah in Title Suit No. 87 of 1980. 2. The present appellants as plaintiffs filed a suit alleging that the suit property as described in the scheduled of the plaint originally belonged to one Panchu and Sadhan Sardar who sold the same to one Kusum Kumari Dasi, the grand mother of the plaintiffs by a registered deed dated 21st December, 1941. Kusum Kumari had two sons viz. Suryadev and Rabiram. Suryadev died leaving his wife Panchibala and son Ashiranjan. After death of Kusum Kumari, Rabiram together with Panchibala and Ashiranjan inherited the suit property. Later Panchibala and Ashiranjan sold their respective shares in the suit property to Rabiram by different sale deeds. Rabiram accordingly became the 16 annas owner of the suit property. After his death, the present plaintiffs as his sole heirs inherited the suit property and started to possess the same. Defendant Nos. 1 to 3 claiming themselves as joint owners of the suit property along with defendant Nos. 4 and 5 brought a partition suit in the court of learned Musnif, 5th Court, Howrah (Title Suit No.122 of 1978) wherein present plaintiffs were made proforma defendants. The present plaintiffs started to contest the suit by filing a written statement. However, on 05.01.1979 the date fixed for peremptory hearing of the said suit, the present plaintiffs as proforma defendants prayed for adjournment but the same was rejected. The suit was decreed ex parte against the present plaintiffs showing mock fight amongst the defendants though no written statement was filed by the defendant Nos. 4 and 5. None of the defendants had any right, title, interest and possession in the suit property. They collusively obtained a fraudulent ex parte decree which is not binding upon the present plaintiff. Accordingly, they have prayed for declaration of title, injunction and other consequential reliefs. Defendant Nos. 1 to 3 and defendant Nos. 4 and 5 appeared and stated to contest the same by filing two separate written statements. They collusively obtained a fraudulent ex parte decree which is not binding upon the present plaintiff. Accordingly, they have prayed for declaration of title, injunction and other consequential reliefs. Defendant Nos. 1 to 3 and defendant Nos. 4 and 5 appeared and stated to contest the same by filing two separate written statements. They denied the material allegations of the plaint contending inter alia that the suit was barred by the principles of estoppel, waivers and acquiescence as well as res judicata. It was the specific case that the plaintiffs had no right, title, interest and possession in the suit property and that the suit was barred by the principles of res judicata in view of the decree passed in the earlier Title Suit No.122 of 1978. 3. Learned Trial Court framed several issues and decreed the suit by observing that the ex parte decree of Title Suit No.122 of 1978 was not binding upon the plaintiffs and that the plaintiffs had right, title, interest and possession in the suit property whereas the defendants had no such right or possession. The defendants preferred an appeal being Title Appeal No.283 of 1885. After contested hearing the appeal was allowed by setting aside the judgment and decree of the learned trial court. 4. The plaintiffs have filed the present second appeal wherein the following substantial questions of law were framed.: (i) Whether learned lower appellate court substantially erred in law by holding that the judgment and decree passed in Title Suit No.122 of 1978 was binding upon the appellant plaintiffs without applying correct legal test; (ii) Whether learned lower appellate court substantially erred in law by discarding more than 30 years old document coming from proper custody and which was marked as Exhibit-1 after formal proof being dispensed with, without applying correct legal test. Mr. S B. Bhunia, learned counsel for the plaintiffs/appellants, submits that the sale deed dated 21.12.1941 (Ext.1) executed by Panchu and Sadhan Sardar, the predecessors-in-interest of the defendants/respondents in favour of Kusum Kumari Dasi, predecessor-in-interest of the plaintiffs was the title document of the plaintiffs in the suit property. According to him, it was a registered document of more than 30 years old and came from proper custody and accordingly, it was marked and exhibited in the learned Trial Court after the formal proof being dispensed with. Mr. According to him, it was a registered document of more than 30 years old and came from proper custody and accordingly, it was marked and exhibited in the learned Trial Court after the formal proof being dispensed with. Mr. Bhunia submits that learned Lower Appellate Court wrongly discarded said old registered document on some flimsy assumptions and observations made in the impugned judgment. According to him, learned Lower Appellate Court did not put any reliance on said document as said document was not produced in earlier suits between the parties and the document bears mark X against the names of the alleged vendors in the first page though there was no evidence that those vendors were illiterate or even were not able to put L.T.I. According to Mr. Bhunia in order to test the validity of the registered document one has to see whether the document was presented before the registrar under Section 32 of the Registration Act, 1908 and whether the registrar endorsed it officially within the meaning of Section 35 of the Evidence Act and that once there is a valid presentation and valid registration after satisfaction of the registrar that it was validly executed then said documents' genuinity regarding execution cannot be challenged. 5. In this connection he refers a case law reported in 1992 (1) CHN page 116 (Mohammad Ali Asgar alias Peary Saheb v. Mrs. Fathima Mohmod and another). He next submits that if one wants to challenge a registered document then the onus lies upon him. In this case, he further submits, learned Lower Appellate Court wrongly placed onus upon the plaintiffs who produced said document. In this connection he refers a case law reported in 1994 (2) CLJ 137 (Zafar Ahmed & Ors. v. Tanwir Iqbal & Ors.) 6. In this connection he next submits that though said Exhibit - 1 contains marks 'X' on the front page of the deed against names of the executants, but on the reverse page there were L.T.I.s of executants which were duly identified by the authorised persons when execution was endorsed by the registrar by registering the document. According to him, putting mark 'X' as sign of signature of the executant in a deed is permissible in law. In this connection he refers the case law reported in AIR 1932 Calcutta 440 (Rajani Mandal v. Digindra Mohan Biswas). According to him, putting mark 'X' as sign of signature of the executant in a deed is permissible in law. In this connection he refers the case law reported in AIR 1932 Calcutta 440 (Rajani Mandal v. Digindra Mohan Biswas). He further submits that as the Ext.1 being a registered document of more than 30 years old was produced from proper custody, the custody of the plaintiffs, there was a presumption of its validity under Section 90 of the Indian Evidence Act. In this connection he refers a case law reported in 1996 (8) SCC 357 (Lakhi Baruah and others v. Padma Kanta Kalita and others). He further submits that said deed of 1941 was admitted into evidence after its formal proof was dispensed with and that once a document is exhibited after formal proof is dispensed with then the contents of the same also stand admitted. In this connection he refers case laws reported in 2003 (1) CHN 475 (R.S.I. Limited v. Property Company Private Limited & Anr.) and 2003 (8) SCC 752 (R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and another). He further submits that though Court has discretion under Section 4 of the Evidence Act to accept or not to accept such presumption but said discretion must be judicious and backed by well-founded reasons. 7. According to him, learned Lower Appellate Court wrongly placed the onus upon the plaintiffs to prove the genuinity of said document and also applied wrong test for rejecting said more than 30 years old and duly registered sale deed. Mr. Priyabrata Mukherjee, learned counsel for the defendants/respondents, on the other hand, submits that there is no scope of re-appreciation of the evidence at the time of hearing of the second appeal and that the observations of learned Lower Appellate Court regarding Ext.1 should not be touched. 8. There is no denial that Ext.1 is a registered sale deed dated 21st December, 1941. As per said sale deed one Kusum Kumari Dasi, the predecessor-in-interest of the plaintiffs purchased the suit properties from Panchu and Sadhan Sardar, predecessors-in-interest of the defendants. Said registered document being more than 30 years old document and coming from proper custody was marked as Ext.1 in the Trial Court after its formal proof was dispensed with. It is true that said document was not produced in some earlier legal battles between the parties. Said registered document being more than 30 years old document and coming from proper custody was marked as Ext.1 in the Trial Court after its formal proof was dispensed with. It is true that said document was not produced in some earlier legal battles between the parties. It is also true that there were only "X" marks in the front page of said document against the names of the executants though there were L.T.I.s of the executants in the reverse page duly identified by the authorised persons and that the registrar after being satisfied about the identity of the persons registered it. Non-production of said document in earlier suits is no ground for doubting its authenticity when it is an old registered document and is coming from proper custody. Learned Lower Appellate Court wrongly placed onus upon the plaintiff to show that the executants were illiterate whereas onus should have been on the defendants who were challenging the genuinity of said document to show that the executants were literate or that the L.T.I.s. appearing thereon were not L.T.I.s. of the executants. I have gone through the case laws referred by learned counsels for the plaintiffs. 9. In Zafar Ahmed's case (supra) it was held by this Court that once a document is presented for registration and is registered according to law there is a presumption under the law that the registered document was duly executed and registered and that the burden lies on the person who is disputing its correctness. In Rajani Mondal's case (supra) it was held by this Court that the statement in the General Clauses Act that the definition of the word 'sign' includes making a mark and does not limit the possible ways in which documents may be signed. As such, putting the mark X against the name of the vendor followed by the name of the person identifying the vendor and also identifying the L.T.I. of the vendor are valid ways of execution in Bengal. 10. In Lakhi Baruah's case (supra) it was held by the Hon'ble Apex Court that Section 90 of the Indian Evidence Act, 1872 was founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove execution of old documents after lapse of 30 years. 10. In Lakhi Baruah's case (supra) it was held by the Hon'ble Apex Court that Section 90 of the Indian Evidence Act, 1872 was founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove execution of old documents after lapse of 30 years. According to the Hon'ble Court presumption of genuineness may be raised if the document in question is produced from proper custody but the Court has the discretion of not accepting said presumption provided said discretion is not exercised arbitrarily. In this connection it may be noted that learned Lower Appellate Court did not want to place any reliance on said old registered document (Ext.1) though coming from proper custody on the grounds as mentioned above which do not seem to be tenable in law. This is more so as said document was admitted into evidence, and was exhibited after formal proof being dispensed with. The effect of exhibiting a document after its formal proof being dispensed with and subsequent objection for expunging said document from the exhibit lists were dealt with by Hon'ble Apex Court in details in R.V.E. Venkatachala Gounder's case (supra). It was held by the Hon'ble Apex Court as follows:- "Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play." In view of the discussions as made above it is clear that learned Lower Appellate Court wrongly rejected the Ext.1 as a document not trustworthy. Learned Lower Appellate Court has held that the ex-parte judgment and decree passed in Title Suit No.122 of 1978 was binding upon the plaintiffs being res judicata. Learned counsel for the plaintiffs submits that the ex parte judgment and decree of Title Suit No.122 of 1978 brought by defendant No.1 to 3 against defendant Nos. 4 and 5 as principal defendants and present plaintiffs as proforma defendants, cannot operate as res judicata in the subsequent suit filed by the plaintiffs praying for asserting their title over the suit property on the strength of their predecessors-in-interest's purchase deed dated 21.12.1941 (Ext.1). According to Mr. Bhunia in order to attract the principle of res judicata it has to be shown that the issue of the subsequent suit was also directly and substantially an issue in the former suit and was decided. According to Mr. Bhunia in the former suit (Title Suit No.122 of 1978) no issue was framed as to whether title of the plaintiffs (defendant Nos. 1 to 3 of this suit) and of defendant Nos. 1 and 2 (defendant Nos. 4 and 5 of this suit) were extinguished on account of sale of the suit property by their predecessors-in-interest to Kusum Kumari Dasi, the predecessor-in-interest of the present plaintiffs (proforma defendants in earlier suit). According to him, though the present plaintiffs being proforma defendant of earlier suit filed a written statement denying the alleged right, title and interest of the plaintiffs and defendant Nos. 1 and 2 of said suit (defendant Nos. 1 to 5 of the present suit) but as the suit was ultimately decided ex parte against the present plaintiffs said question was neither raised nor decided in the earlier suit. According to him, the main point in issue of the present suit is whether said sale deed dated 21.12.1941 (Ext.1) executed by Panchu Sardar and Sadhan Sardar in favour of Kusum Kumari Dasi extinguished the title of Panchu and Sadhan, the predecessors- in-interest of the defendant Nos. 1 to 5 of the present suit in the suit property. According to him, the main point in issue of the present suit is whether said sale deed dated 21.12.1941 (Ext.1) executed by Panchu Sardar and Sadhan Sardar in favour of Kusum Kumari Dasi extinguished the title of Panchu and Sadhan, the predecessors- in-interest of the defendant Nos. 1 to 5 of the present suit in the suit property. This issue not being framed and decided in the earlier suit, the judgment of the earlier suit cannot operate as res judicata in this subsequent suit. In support of his contention he refers case laws reported in 2003 (3) SCC 350 (Sajjadanashin Sayed Md. B. E. EDR. v. Musa Dadabhai Ummer and others) and AIR 1942 Calcutta 1 (Hafiz Mohammad Fateh Nasib v. Sir Swarup Chand Hukum Chand Firm and another), Mr. Priyabrata Mukherjee, learned counsel for the defendants/ respondents, on the other hand, submits that an ex parte decree has the same force as that of a contested decree and may very well operate as a res judicata in a subsequent suit. He next submits that though a plea was taken in the amended plaint that fraud was practised in the earlier suit (Title Suit No. 122 of 1978) but there was no evidence to that effect which was concurrently held by both the courts below. According to him, admittedly, the parties and the suit properties were same in both the suits namely the present suit being Title Suit No.87 of 1980 and the earlier suit being Title Suit No. 122 of 1978. Judgment of the earlier suit (Title Suit No. 122 of 1978) declaring present defendant Nos. 1 to 3's eight annas share therein and allowing a decree of partition in the preliminary form after admitting the remaining eight annas share of present defendant Nos. 4 and 5 (defendant Nos. 1 and 2 of earlier suit), he submits, already determined the right, title of the present defendants ignoring the alleged claim of the present plaintiffs preferred in said suit through their written statement. According to Mr. Mukherjee, there is no question of reopening that issue again and that the present suit is hopelessly barred by the principles of res judicata. 1 and 2 of earlier suit), he submits, already determined the right, title of the present defendants ignoring the alleged claim of the present plaintiffs preferred in said suit through their written statement. According to Mr. Mukherjee, there is no question of reopening that issue again and that the present suit is hopelessly barred by the principles of res judicata. Res judicata has been defined under Section 11 of the Code of Civil Procedure which runs as follows:- "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.- The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.- For the purpose of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. 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 and substantially in issue in such suit. Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this Section, be deemed to have been refused. Explanation VI - Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this Section, be deemed to claim under the persons so litigating. Explanation VI - Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this Section, be deemed to claim under the persons so litigating. Explanation VII.- The provisions of this Section shall apply to a proceeding for the execution of a decree and references in this Section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII.- An issue heard and finally decided by a Court of limited jurisdiction, competent to decided such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised." 11. The principle of res judicata and its extent and applicability came up for decision before the Hon'ble Apex Court and this High Court on various occasions. The conditions of res judicata as decided by Hon'ble Courts in various cases may be summarised as follows:- (1) Identity of matter in issue, i.e. the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit either actually (Expln 3) or constructively (Expln 4). The subject-matter and the causes of actions of the two suits may be different but the issues may be the same, Expln III refers to direct res judicata and Expln. IV to constructive res judicata. It is not necessary that a distinct issue should be raised. It is sufficient if the matter was in issue in substance [Md. Ali v. Upendra 58 CLJ 196]. (2) Indentity of parties. - i.e., the former suit must have been between the same parties or between parties under whom they or any of them claim (Expln.VI). (3) Same title.- The parties in the subsequent suit must have litigated under the same title in the former suit. (4) Concurrence of jurisdiction.- The Court which decided the former suit must have been competent to try the subsequent suit or the suit in which issue has been subsequently raised (Expln II). New Expln. (3) Same title.- The parties in the subsequent suit must have litigated under the same title in the former suit. (4) Concurrence of jurisdiction.- The Court which decided the former suit must have been competent to try the subsequent suit or the suit in which issue has been subsequently raised (Expln II). New Expln. VIII has widened the scope of Section 11 by doing away with the requirement as to concurrent of jurisdiction as to pecuniary limits in both the suits. (5) Final decision.- The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided in the former suit. (Expln.V). In Hafiz Md. Fateh Nasib's case (supra) as referred by learned counsel for the appellants it was held that where several issues were framed, the decision on each issue which supports the ultimate decision in the case must be regarded as res judicata between the parties to the suit but a decision on an issue which does not support the ultimate decree cannot operate as res judicata between the parties in a subsequent suit. 12. In Sajjadanashin Sayed Md. B.E. EDR's case (supra) some texts of Mulla's Civil Procedure Code 15th Edition were referred with approval in connection with res judicata which runs as follows:- "A matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter "directly and substantially" in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was "directly and substantially" in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was "necessary" to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. One test is that if the issue was "necessary" to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue....................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 of its decision." 13. E.D.C. Ltd. and others' case (supra) as cited by learned counsel for the plaintiffs was in the same line elucidating the principles of res judicata. In Union of India and others' case (supra) it was again stated that issue not directly and substantially in issue in former proceedings cannot operate as res judicata. 14. In Amarendra Komalam and another's case (supra) as referred by learned counsel for the contesting respondent defendant the principle of res judicata as stated above was reiterated in para 25. In Newton Hickie and another's case (supra) it was held "Even, if a decree is ex parte, it will operate as res judicata in respect of all grounds of defence against the actual claim in the suit as also all matters inconsistent with such claim which might and ought to have been raised. Accordingly, in the present case, the appellants cannot avoid the effect of decisions on the questions raised on the ground that the appellants were absent when the decrees were actually passed." 15. There is no denial that present defendant Nos. 1 to 3 filed a former suit (Title Suit No. 122 of 1978) claiming that they along with present defendant Nos. 4 and 5 (defendant Nos. There is no denial that present defendant Nos. 1 to 3 filed a former suit (Title Suit No. 122 of 1978) claiming that they along with present defendant Nos. 4 and 5 (defendant Nos. 1 and 2 in the former suit) were 16 annas owner of the suit property being heirs of Panchu Sardar and Sadhan Sardar and that the plaintiffs being heirs of Panchu finding it difficult to have joint possession with heirs of Sadhan Sardar prayed for declaration of their joint eight annas share in the suit property as well as for a decree for partition. It is also an admitted fact that the present plaintiffs were made proforma defendants in said suit wherein they appeared and filed a written statement alleging that both Panchu and Sadhan sold out their interests in the suit property to the predecessor-in-interest of said proforma defendants (present plaintiffs) and divested themselves of any right title and interest thereupon. However, said suit was decreed ex parte by judgment dated 8th January, 1979 after rejecting the prayer for adjournment filed by the proforma defendants (present plaintiffs). The present plaintiffs' petition under Order 9 Rule 13 of the Code of Civil Procedure for vacating of said ex parte judgment dated 8th January, 1979 (Misc. Case No.18 of 1979) was dismissed on contest vide order dated 12th of April, 1980. The present plaintiffs preferred an appeal against said order of dismissal of the Misc. Case being Misc. Appeal No.72 of 1980 which was also dismissed after contested hearing vide order dated 13th February, 1981. There was no further appeal against said order of dismissal of Misc. Appeal dated 13th February, 1981. The present plaintiffs also did not file any appeal against the ex parte judgment and decree dated 8th January, 1979 passed in Title Suit No. 122 of 1978. But now the question is whether said ex parte judgment and decree of previous Title Suit No. 122 of 1978 will operate as res judicata in the present subsequent suit filed by the plaintiffs praying for declaration of their right title and interest over the suit property with a further prayer for declaring that said judgment of previous Title Suit No. 122 of 1978 was not binding on them. There is no denial that in the former suit (Title Suit No. 122 of 1978) it was declared by a competent court of law that the defendants of the present suit had jointly 16 annas share in the suit property. The defence of the present plaintiffs as proforma defendants in that suit that they were 16 annas owner of the suit property through purchase of the same by their predecessors-in-interest from the predecessors-in-interest of the plaintiff and defendant Nos. 1 and 2 of said earlier suit was turned down. 16. In terms of explanation IV of Section 11 of the Code of Civil Procedure 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 matter directly and substantially in issue in such suit. Admittedly, the present plaintiffs' claim of purchase of the suit property by their predecessor-in-interest from the predecessors-in-interest of the present defendants was a ground of attack in the former suit but for not contesting said former suit said ground of attack was of no avail to the present plaintiffs. In other way it can be said that by raising the question of passing of title from the predecessors-in-interest of the present defendants to the predecessor-in-interest of the present plaintiffs, the decree passed in the previous suit could have been defeated, varied or affected. If that be the position then the judgment of the former suit (Title Suit No. 122 of 1978) will certainly act as res judicata in the subsequent suit filed by the present plaintiffs against the same parties on the self-same properties. It was not a case that in the former suit (Title Suit No. 122 of 1978) the summon was not served or that the present appellants as proforma defendants were illegally prevented by the adversary to contest the case or that any fraud was practised upon the Court. I have already stated that both the Courts came to the concurrent findings of fact that the plaintiffs have failed to establish that any fraud was practised upon the Court for obtaining the ex parte decree in the earlier suit. I have already stated that both the Courts came to the concurrent findings of fact that the plaintiffs have failed to establish that any fraud was practised upon the Court for obtaining the ex parte decree in the earlier suit. If that be the position then it cannot be said that learned Lower Appellate Court substantially erred in law by holding that the judgment and decree passed in Title Suit No. 122 of 1978 was binding upon the appellant plaintiffs without applying correct legal test. 17. As a result, the appeal is hereby dismissed on contest. 18. However, I pass no order as to costs. 19. Send down Lower Court records along with a copy of this judgment to the Lower Court at the earliest. Urgent photostat certified copy of this judgment be supplied to learned counsels of the parties, if applied for.