JUDGMENT : Heard Mr.Shreenandan Prasad Singh, the learned counsel appearing on behalf of the appellant and Mr. Sukumar Sinha, the learned senior counsel appearing on behalf of the plaintiff-respondents. No one has appeared on behalf of the other respondents in this appeal when the hearing has been called out. This appeal has been filed by the defendant in T.S. No. 27 of 1995 assailing the judgment and decree of affirmance in T.A. No. 20 of 2007 on 22.01.2008 by Additional District Judge (F.T.C.-IV), Darbhanga, maintaining the decree in the suit against him. It is an admitted fact between the parties that the T.S. No. 27 of 1995 has been filed by the plaintiff Shila Devi and in that suit the present appellant has been impleaded as defendant no. 1. The relief no. 1 prayed in that suit is as follows:- That on adjudication of the aforesaid matter, a decree for recovery of possession be passed in favour of the plaintiff in respect of suit property given in Schedule-III of the plaint and confirmation of possession in respect of Schedule-III (A) property. Another T.S. No. 97 of 1995 has been filed by the present appellant impleading the plaintiff Shila Devi of the earlier T.S. No. 27 of 1995 as defendant no. 1. The main reliefs prayed in this suit are as follows:- (I) On adjudication of the facts stated above and on declaration of title of the plaintiff over Schedule-2 land of the plaint, a decree for recovery of possession over Scheule-3 of the plaint with mesne profits be passed in favour of the plaintiff and against the defendant 1st party and amount of mesne profits be got ascertained in a subsequent proceeding and a decree for the sum so ascertained be passed in favour of the plaintiff against the defendant 1st party on acceptance of deficit court fee from the plaintiff. (II) It be also declared that the alleged auction sale of schedule I land of the plaint in Execution Case No. 14 of 1972 propounded by the defendants is nullity, illegal, void, inoperative and the same be set aside. The basic facts are not in dispute between the parties that the suit properties including other properties originally belonged to Doman Sah and had been jointly inherited after his death by his three sons Gaya Sah, Chote Sah and Puran Sah. The basic facts are not in dispute between the parties that the suit properties including other properties originally belonged to Doman Sah and had been jointly inherited after his death by his three sons Gaya Sah, Chote Sah and Puran Sah. It is also not in dispute that Chote Sah filed partition suit no. 226 of 1963 for partition of the family property and the said suit was decreed and a preliminary decree was passed allowing 1/3rd share each to the three brothers in the family properties. Gaya Sah thereafter filed an appeal but the said appeal was dismissed with cost. A final decree was prepared in accordance with the preliminary decree for partition and was passed on 14.02.1972. It would be relevant to mention here that in the final decree, Gaya Sah and Puran Sah together were held liable to pay Rs. 500/- in lieu of possession over pucca building in accordance with the report of the Pleader Commissioner. Thereafter, Chote Sah filed Execution Case No. 14 of 1972 for delivery of possession over the properties in accordance with the final decree and also with regard to the realization of the decretal amount of Rs. 500/- and the cost of Rs. 88.33 paise (as allowed by the appellate court). In this execution case the suit properties were put to auction sale and had been purchased by Chote Sah. Accordingly thereafter, the sale certificate was prepared and the delivery of possession was also effected over the auction sold lands. It is the case of the plaintiff in T.S. No. 27 of 1995 that she acquired title by purchase, over the entire area of municipal plot no. 29059 area 10 dhur 99 dhurki as mentioned in Schedule 2 of the plaint, from the heirs of late Chote Sah after payment of the consideration money for the same and thereafter she has filed the suit against the defendant no. 1 who has been continuing in occupation of the suit house as tenant, for recovery of possession and other reliefs, as above mentioned. The defendant no. 1 Ghulam Mustafa filed his written statement in the suit denying the claim of the plaintiff and asserted his own independent title over the suit land on the basis of purchase from Gaya Sah and also on the basis of adverse possession. The defendant no. The defendant no. 1 Ghulam Mustafa filed his written statement in the suit denying the claim of the plaintiff and asserted his own independent title over the suit land on the basis of purchase from Gaya Sah and also on the basis of adverse possession. The defendant no. 1 Ghulam Mustafa also filed T.S. No. 97 of 1995 for the reliefs as aforementioned but in the plaint of this suit he did not claim his title over the suit land on the basis of adverse possession. It would be fruitful here to take into notice the properties described in schedules of the plaint of T.S. No. 27 of 1995 and T.S.No. 97 of 1995. In T.S. No. 27 of 1995, the plaintiff has mentioned in schedule-I the details of the land over which the title and possession of the plaintiff has been disputed by the defendant no. 1 Ghulam Mustafa. The description of property in schedule-I is as follows:- Schedule-I Details of land over which the defendant no. 1 repudiates the title and possession of the plaintiff: M.S. Plot no. 29059 Area 7 dhurs. Boundary- North-plaintiff South-Gopi Mahto and Parmeshwar Gara. East-Plaintiff. West-Main Road. The plaintiff has sought for recovery of possession from the land mentioned in schedule-III and confirmation of possession over the land mentioned in Schedule-III(A) which are the portions of the land mentioned in Schedule-I. Description of lands mentioned in Schedule-III and III(A) are as follows:- Schedule-III Details of land over which the house is standing. M.S. Plot No-. 29059 Area- 3 dhurs Boundary- North-Plaintiff. South- Gopi Mahto and Parmeshwar Gara. East-Plaintiff. West-Main Road. Schedule-III (A) Description of the vacant land in respect of which decree for confirmation of possession in sought. M.S. Plot no.- 29059 Area- 4 dhurs Boundary- North-Plaintiff. South-Gopi Mahto and Parmeshwar Gara. East-Plaintiff. West-Schedule-III property of the plaintiff. In T.S. No. 97 of 1995, Ghulam Mustafa as plaintiff has sought for declaration of his title over schedule-II land and recovery of possession over schedule-III land mentioned in the plaint of that suit. The description of the land in schedule-II and schedule-III of the plaint are as follows:- Schedule-II Details of the land purchased by the plaintiff through Registered sale deed dated 02.03.1976 out of Schedule-I land, at mohalla Balbhadrapur, Bakerganj, town Laheria Sarai, P.S. Laheriasarai District-Darbhanga. The description of the land in schedule-II and schedule-III of the plaint are as follows:- Schedule-II Details of the land purchased by the plaintiff through Registered sale deed dated 02.03.1976 out of Schedule-I land, at mohalla Balbhadrapur, Bakerganj, town Laheria Sarai, P.S. Laheriasarai District-Darbhanga. S.P. No.- 29059 Area- 7 dhurs Boundary- North-Defendant by purchase from heir of Gaya Sah South-Parmeshwar Gara East- Rest part of Schedule-I land West-Pucca Road. Schedule-III Details of portion of land out of Schedule-II from which defendant dispossessed the plaintiff. Mohall-Balbhadrapur, Bakerganj town Laheria Sarai, P.S. Laheria Sarai Munsif Darbhanga, District-Darbhanga. S.P. No.- 29059P Area- 3 dhoors Boundary- North-defendant by purchase from heirs of Gaya Sah. South-Parmeshwar Gara. East- Gaya Pd. Sahu and now in possession of defendant by Purchase from his heirs. West-Plaintiff in Rest part of schedule-II land. The prayer has also been made in this suit by Ghulam Mustafa for setting aside the auction sale of the lands described in schedule-I of the plaint which is as follows:- Schedule-I Details of subject matter of alleged auction sale, Mohalla-Balbhadrapur, Bakerganj, town Laheriasarai, P.S. Laheria Sarai Munsifi, Darbhanga District-Darbhanga: S.P. No. Area 29059 10.dhoor 99 dhurki Boundary- North –Defendant by purchase from heirs of Gaya sahu. South- Parmeshwar Garra. East –Nadi (Nala) West- Road Puccca. From the perusal of the reliefs in both the suits and the lands subject matter of dispute therein, it is transparent that both the parties have claimed their rival title over the same land and have claimed recovery of possession over its different portions. From the impugned judgment of both the courts below, it is manifest that both the suits i.e. T.S. No. 27 of 1995 and T.S. No. 97 of 1995 were heard analogously. This fact has not been disputed by the learned counsel for the parties in this appeal. The trial court framed altogether 13 issues out of which the material issues are as follows:- Issue no. 3- D;k oknh dk okn fe;kn] fcca/ku vfHkR;stu ,oa ekSulEefr ds fl)kar ,oa izfrdqy dCts ds fl)karksa ls ckf/kr gS \ Issue no. 4 - D;k oknh dk LoRofgr vf/kdkj ,oa fgr fooknxzLr Hkwfe ij izkIr gS\ Issue no. 7- D;k oknh okn i= esa of.kZr vuqlwfp&3 dh Hkwfe ij vkf/kiR; izkIr djus dk vf/kdkjh gS\ Issue no. 3- D;k oknh dk okn fe;kn] fcca/ku vfHkR;stu ,oa ekSulEefr ds fl)kar ,oa izfrdqy dCts ds fl)karksa ls ckf/kr gS \ Issue no. 4 - D;k oknh dk LoRofgr vf/kdkj ,oa fgr fooknxzLr Hkwfe ij izkIr gS\ Issue no. 7- D;k oknh okn i= esa of.kZr vuqlwfp&3 dh Hkwfe ij vkf/kiR; izkIr djus dk vf/kdkjh gS\ Issue no. 9- D;k LoRo okn 97@95 esa of.kZr vuqlwph&1 dh Hkwfe tks fuykeh foØ; }kjk fu”iknu okn la0 14@1972 vof/k ‘kqU; ,oa izHkkoghu rFkk og fujLr gksus ;ksX; gS\ Issue no. 10- D;k x;k lkg }kjk izfroknh xqyke eqLrQk ds i{k esa fu”ikfnr nksuksa foØ; foys[k fnukad 2@3@1976 oS/k ,oa izHkkoh gS rFkk x;k izlkn lkg dks mijksDr foØ; foys[k fu”ikfnr djus dk dksbZ vf/kdkj Fkk\ Issue no. 11- D;k fnukad 2@3@1976 ds foØ; foys[k ds vk/kkj ij izfroknh xqyke eqLrQk dks oS/k LoRo izkIr gqvk ;k mldh gSfl;r fdjk;knkj dh cuh jgh\ Issue no. 12- D;k izfroknh xqyke eqLrQk dks izfrdqy dCts ds vk/kkj ij LoRo] fgr ,oa vf/kdkj izkIr gks pqdk gS\ After scrutiny of the evidence of the parties in view of the pleadings, the trial court has returned the finding as follows:- ^^mijksDr fo’ys”k.kh ds i'pkr izrhr gksrk gS fd LoRo okn 27@95 ds oknh dk okn la?kkj.kh; gS rFkk blds oknh dks okn ykus dk vf/kdkj ,oa oknewy izkIr Fkk] lkFk gh ;g Hkh izrhr gksrk gS fd LoRo okn 97@95 ds oknh dk okn la?kkj.kh; ugha gS rFkk mUgas okn ykus dk vf/kdkj ,oa oknewyizkIr ugha gSA mijksDr lHkh fookn~;d LoRo okn 27@95 ds oknh ds i{k esa ,oa LoRo okn 97@95 ds oknh ,oa LoRo okn 27@95 ds izfroknh ds fo:) fofuf’pr fd;k tkrk gSA** The T.A. No. 20 of 2007 was filed by Ghulam Mustafa assailing the judgment and decree passed in T.S. No. 27 of 1995 in which he was the defendant no. 1. No appeal has been admittedly filed by Ghulam Mustafa against the judgment and decree dismissing the T.S. No. 97 of 1995 in which he was the plaintiff. The appellate court, after hearing the parties, has concluded that the absence of appeal against the judgment and decree passed in T.S. No. 97 of 1995 by the plaintiff Ghulam Mustafa of that suit would operate as res judicata. The appellate court, after hearing the parties, has concluded that the absence of appeal against the judgment and decree passed in T.S. No. 97 of 1995 by the plaintiff Ghulam Mustafa of that suit would operate as res judicata. The appellate court has further also reappraised the evidence and has affirmed the findings of the trial court on the issues decided by it including the issue relating to the adverse possession raised by the Ghulam Mustafa as defendant in T.S. No. 27 of 1995. Aggrieved by the aforesaid judgment and decree Ghulam Mustafa has filed the present appeal. This appeal has been admitted for hearing on 01.05.2008 and the following substantial question of law has been framed:- Whether due to non-consideration of the evidence of the defendants both oral as well as documentary, the judgments of the courts below are vitiated in law? At the outset, Mr Sinha, the learned senior counsel for the plaintiff-respondents has submitted that in view of the categorical finding by the appellate court below that the appeal before it was barred by res judicata, the substantial question of law as framed in the present appeal does not arise for consideration until the said finding is overturned. It has been also proponed by the learned senior counsel that in the admitted facts and circumstances of the case, there is no escape for the appellant from the bar of res judicata and the conclusion by the appellate court below in this regard is legally impregnable in view of the principles laid down by the Apex Court in Badri Narayan Singh Vs Kamdeo Prasad, A.I.R.1962 S.C. 338 and also in Sheodan Singh Vs Daryao Kunwar, A.I.R.1966 S.C. 1332. Mr. Singh, the learned counsel appearing on behalf of the appellant, in reply, has submitted that the decision by the appellate court below that the appeal was barred by res judicata as there was no appeal against the judgment and decree passed in T.S. No. 97 of 1995 is erroneous inasmuch as the learned appellate court below has failed to consider the fact that the issue with regard to adverse possession was not common in both the suits. The learned counsel has placed reliance on the Apex Court decision in the case of Ramagya Prasad Gupta Vs. Murli Prasad, A.I.R. 1974 SC 1320 in support of the above proposition. The learned counsel has placed reliance on the Apex Court decision in the case of Ramagya Prasad Gupta Vs. Murli Prasad, A.I.R. 1974 SC 1320 in support of the above proposition. As abovementioned, the fact is not in dispute that the properties subject matter of both the suits were common and the plaintiff of one suit was the defendant in other suit and vice versa. The analogous hearing was done in both the suits on the issues including the issue of adverse possession raised by the present appellant Ghulam Mustafa as defendant in T.S. No. 27 of 1995. All the issues were decided against the appellant Ghulam Mustafa and in favour of the respondent Shila Devi by the trial court. It was held that the auction sale of the property mentioned in Schedule I of the plaint of T.S.No.97/95 was legal and valid and Gaya Sah had no right to execute sale deed dated 02.03.1976 in favour of Ghulam Mustafa (plaintiff of T.S.No.97/95) who did not acquire title over the said property on the basis of that sale deed and his possession over the same continued as tenant. The trial court sequentially also held that the possession of Ghulam Mustafa never became adverse against the plaintiff Shila Devi (of T.S.No. 27/95). The appellant Ghulam Mustafa preferred T.A.No.20/2007 only against the decree passed in T.S. No. 27 of 1995 and no appeal was preferred by him against the judgment and decree dismissing his T.S. No. 97 of 1995. It will be seemly to point out here and is also apparent from the impugned judgment of the appellate court that the appellant Ghulam Mustafa had also tried to wriggle out of the impasse when he filed a petition before the appellate court below explaining the circumstances in which no appeal could be filed against the judgment and decree in T.S. No. 97 of 1995 and thereafter had also deposited the court fee which was to be payable in the appeal if filed against the judgment and decree of T.S. No. 97 of 1995. The appellate court below, however, after hearing the parties declined to accept the explanation by the appellant Ghulam Mustafa for not filing the appeal against the judgment and decree of T.S. No. 97 of 1995 and after elaborate consideration of the facts, circumstances and the principles of law has come to the conclusion that the bar of res judicata has been squarely attracted. At this juncture, it would be condign to take into notice the principles of res judicata in similar circumstances as spelt out by the Apex Court in several landmark decisions. The reliance in particular, on behalf of the respondents has been placed on the decisions in the case of Badri Narayan Singh Vs Kamdeo Prasad, A.I.R. 1962 S.C.338 ( which has been decided applying the general principles of res judicata) and in the case of Sheodan Singh Vs. Daryao Kunwar, A.I.R. 1966 SC 1332. In Sheodan Singh’s case, it has been laid down as follows:- “…When the trial court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary like limitation or default in printing, with the result that the trial court’s decision stands confirmed, the decision of the appellate court will be res judicata and the appellate court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appellate court is to confirm the decision of the trial court given on merits……………………………………………………”. Again in the case of Lonankutty Vs Thomman, A.I.R.1976 S.C.1645, a three Judges Bench reiterated the principle as follows:- “… The failure of the respondents to challenge the decision of the District Court in so far as it pertained to their suit attracts the application of Section 11 because to that extent to which the District Court decided issues arising in the respondent’s suit against them, that decision would operate as res judicata since it was not appealed against…” In the case of Ram Prakash Vs Smt Charan Kaur, A.I.R. 1997 SC 3760, almost on similar facts, the apex court has upheld the judgment of the High Court dismissing the appeal as barred by res judicata. The learned counsel for the appellant has feebly tried to emphasize that as the T.S.No.97/95 was instituted later than T.S.No.27/1995, the decision in that suit cannot be the decision in the “former suit” as required by Section 11 C.P.C. But the apex court has delved into this aspect also in the case of Narayana Prabhu Venkateswara Prabhu Vs Narayana Prabhu Krishan Prabhu, 1977 (2) SCC 181 and has ruled as follows:- “… The expression “ former suit” according to explanation I of Section 11, makes it clear that if a decision is given before the institution of the proceeding which is sought to be barred by res judicata, and that decision is allowed to become final or becomes final by operation of law, a bar of res judicata would emerge…” From the records as well as the impugned judgments of the courts below and the submissions of the parties, it is evident that the two suits, filed by the appellant and the respondent respectively, were tried together on the self same question of title and possession over the same property being directly and substantially in issue and finally decided on merits. Both on principle and precedent, therefore, it inevitably follows that the findings recorded in one of the suits having been allowed to become final in absence of appeal therefrom, would definitely operate as bar on the principle of res judicata in the appeal preferred against the findings in another suit. The learned counsel for the appellant, in his effort to create a concavity has further submitted that the issue of adverse possession was not common in both the suits, i.e. T.S.No.27/95 and 97/95 inasmuch as in T.S.No.97/95, Ghulam Mustafa as plaintiff has not claimed the title over the disputed property on the basis of adverse possession and the said claim has been made by him only in the written statement filed by him as defendant in T.S.No.27/95 and therefore the issue of adverse possession will survive the bar of res judicata. To bolster his proponement, the learned counsel has placed reliance on the decision in the case of Ramagya Prasad Gupta Vs Murli Prasad, A.I.R.1974 SC 1320. It is not in dispute that the rival claim of title and possession over the same property between the parties was directly and substantially in issues in both the suits which were tried together. To bolster his proponement, the learned counsel has placed reliance on the decision in the case of Ramagya Prasad Gupta Vs Murli Prasad, A.I.R.1974 SC 1320. It is not in dispute that the rival claim of title and possession over the same property between the parties was directly and substantially in issues in both the suits which were tried together. The said issues were decided against the appellant and his suit (T.S.No.97/95) was dismissed. The prime consideration for the application of bar of res judicata under Section 11 C.P.C. is the involvement of the same matter “directly and substantially in issue” in both the suits, and in view of Explanation IV any matter which might or ought to have been made ground of attack or defence in former suit shall be deemed to have been a matter directly and substantially in issue in such suit. The respondent as plaintiff in T.S.No.97/95 could have advanced his claim of title over the suit property on the basis of adverse possession as well which he however admittedly did by way of defence as defendant in T.S.No.27/95. As such, perceivably the issue of claim of title on the basis of adverse possession by the appellant cannot be accepted to have survived. The ratio of the case of Ramagya Prasad Gupta (Supra) cannot be applied because in that case the issue of title was not common in both the suits. On basis of the aforesaid premised reasons and discussions, it is held that the appellate court below has rightly found the appeal before it as barred by res judicata because the decree of dismissal of the T.S.No.97/95 against the appellant, which has attained finality, would operate as res judicata under Section 11 C.P.C. In this view of the matter, the substantial question of law, as framed does not survive for consideration. No other submission has been made on behalf of the appellant. Ex consequenti, I find no merit in this appeal, which is accordingly, dismissed.