JUDGMENT : Akil Kureshi, J. This appeal is directed against the judgment of the learned Single Judge dated dated 11.06.1991 in First Appeal No.771 of 1982. We would like to borrow facts from the judgment of the learned Single Judge. One Haridas Kevalram was the owner and landlord of Shop No.D-23, situated at Gandhidham, Kachchh. He gave that shop on lease to Thadharam Chavla, father of original plaintiffs no.1 and 3 and husband of plaintiff no.2. This happened some time in the year 1951. In January 1959, Thadaram gave the shop to the defendants under various documents executed from time to time. Thadaram died in October 1966. On 20.10.1972 an agreement- Exh.129 came to be executed between the plaintiffs and defendants which was titled as “agreement to run a business”. 1.1 The plaintiffs filed Special Civil Suit No.84 of 1977 against the defendants and prayed for direction to defendants to hand over peaceful charge of running business of Chawla Cafe and Milk Bar situated at Shop No.D/22-23 at Gandhidham along with all its property articles as shown in the list attached with the licence agreement dated 20.09.1972. They also claimed Rs.4,100/- towards arrears of licence fee due from 01.01.1977 to 19.09.1977. They also prayed for direction to the defendants to account income and expenditure of the suit business. 2. According to the plaintiffs under the said agreement, exh.129, the plaintiffs had given the suit premises to the defendants by way of licence for running shop for manufacturing ice candy and to run business in the name of Messrs Chawla Cafe & Milk Bar for a period of five years. According to the plaintiffs the term of licence expired on 19.09.1977 and the defendants did not express any desire to renew licence in terms of the said agreement. The plaintiffs were therefore, entitled to take back the business as well as possession of the suit premises. According to the plaintiffs defendants also committed breach of terms of licence as they had not paid licence fee regularly. 2.1 The defendants appeared and filed written statement- exh.46 in which they contended, inter alia, that civil court has no jurisdiction to entertain the suit. In view of the fact that the plaintiffs are tenants of the original landlord and defendant no.2 is sub-tenant any suit for recovery of rent must lie before rent court. 2.1 The defendants appeared and filed written statement- exh.46 in which they contended, inter alia, that civil court has no jurisdiction to entertain the suit. In view of the fact that the plaintiffs are tenants of the original landlord and defendant no.2 is sub-tenant any suit for recovery of rent must lie before rent court. The defendants also raised issue of res judicata contending that several litigations between the parties had taken place in the past and judgments of the competent courts would bind both the sides. According to the defendants in one such proceedings they were declared as tenants of the suit property. To several past litigations referred to by defendants, we would make mention at a later stage. 3. The Trial Court raised several issues including regarding maintainability of the suit, jurisdiction of the Court to try the same, regarding question of res judicata as also regarding the true import of the agreement, exh.129. The Trial Court also framed an issue at the instance of the defendants whether the defendants prove that they had executed the said agreement under misrepresentation. 4. The Trial Court held that the agreement in question was not in the nature of leave and licence and that the same could not have been executed in face of judgment of the previous litigation. The Trial Court held that the plaintiffs were not entitled to any relief, however, with respect to execution of document under misrepresentation or fraud the Trial Court held in favour of the plaintiffs. 5. Judgment of the Trial Court was carried in appeal by the plaintiffs before the learned Single Judge. The learned Single Judge in detailed judgment reversed the judgment of the Trial Court and allowed the appeal. The learned Judge on the basis of pleadings and submissions made before him noted that merely two points came up for consideration, viz. (i) Whether what was granted by the appellants to the respondents under the suit agreement was a licence or whether it was a tenancy? (ii) Whether the appellants' contention that the respondents are the licensees is barred by res judicata? 6. The learned Judge took minute note of various terms of the said agreement, exh.129 and concluded that,- “15. (i) Whether what was granted by the appellants to the respondents under the suit agreement was a licence or whether it was a tenancy? (ii) Whether the appellants' contention that the respondents are the licensees is barred by res judicata? 6. The learned Judge took minute note of various terms of the said agreement, exh.129 and concluded that,- “15. The learned trial Judge has, in his judgment, after referring to some of the terms contained in exh.129, said that the conditions embodied in those terms are consistent with the tenancy agreement. The learned Judge has not endeavoured to show as to how the said terms are consistent with the tenancy agreement. Presently, I will point out that the learned Judge's decision has been very much affected by irrelevant considerations. He has referred to 5.15A of the Rent Act, which is applicable in Maharashtra State, but not applicable in Gujarat. 16. Having read and re-read the agreement exh.129 and the list of movables130 annexed thereto, I am convinced that the manifest intention of the parties to the agreement was to create a licence to manufacture ice candy and to run the business of M/s Chawla Cafe & Milk Bar, in favour of the respondents and for running that business, the appellants gave to the respondents the movables, the fittings, the fixtures, the furniture, the machinery, crockery, etc. mentioned in the list list Exh.130. I am also convinced that the parties clearly intend to exclude any relationship of tenancy in favour of the respondents.” 7. With respect to misrepresentation or fraud the learned Judge confirmed the view of the Trial Court and held that the agreement was executed by the parties with eyes wide open. 8. On the question of res judicata the defendants had referred to three previous litigations. First was a Civil Suit No.113 of 1973 which was filed by Haridas, original owner of the suit shop in which defendant no.2 admitted himself to be sub-tenant of the shop. The plaintiff was also co-defendant and described himself as a mere licensee, who was given licence to run business. The said suit of Haridas in relation to relief of possession came to be dismissed by Anjar Civil Court on the ground that notice terminating tenancy was illegal. The plaintiffs' suit for eviction was therefore, dismissed. However, the present plaintiffs were ordered to pay arrears of rent. 9. The said suit of Haridas in relation to relief of possession came to be dismissed by Anjar Civil Court on the ground that notice terminating tenancy was illegal. The plaintiffs' suit for eviction was therefore, dismissed. However, the present plaintiffs were ordered to pay arrears of rent. 9. Another litigation was Civil Suit No.12 of 1969 filed by plaintiffs before Gandhidham court against defendant no.2 alleging that the said defendant was Manager of their business and though they had asked for account he had not rendered account of the business. In the said suit, viz. Civil Suit NO.12 of 1969 defendant no.2 herein denied that he was the Manager, but set up a case of sub-tenancy. The suit came to be dismissed by Trial Court and plaintiff filed Appeal No.97 of 1972 before District Court, Bhuj. It appears that during the pendency of such appeal parties arrived at a settlement, which culminated into execution of agreement dated 20.09.1972, exh.129, upon which appeal came to be withdrawn on 22.09.1972. 10. Third litigation pertains to Civil Suit No.255 of 1967 which was filed in December 1967 by defendant no.2 for declaration that he was tenant of the suit land, which came to be withdrawn by him by filing purshis dated 27.12.1972, on which Trial Court passed an order that the plaintiffs withdrew the suit unconditionally and accordingly suit was disposed of. This purshis along with order passed by the court dated 27.12.1972 was produced at exh.105 in the present proceedings. 11. Principally, according to the defendants effect of the order passed by the civil court in Civil Suit No.113 of 1973 would be that defendants would be treated as statutory tenants of the suit property. They would point out that the plaintiff had filed appeal against judgment of the Trial Court. However, the Appellate Court refused to condone the delay and the appeal stood dismissed on the ground of limitation. Further, revision preferred before the High Court was also not maintained. According to the defendants therefore, the combined effect of judgment of the Trial Court in Civil Suit No.113 of 1973 and Civil Suit No.12 of 1969 would be that the plaintiffs would be precluded from raising any ground that the agreement in question was one in nature of licence agreement. According to the defendants therefore, the combined effect of judgment of the Trial Court in Civil Suit No.113 of 1973 and Civil Suit No.12 of 1969 would be that the plaintiffs would be precluded from raising any ground that the agreement in question was one in nature of licence agreement. These contentions were turned down by the learned Single Judge, firstly on the ground that judgment in Civil Suit No.12 of 1969 would have no bearing since after judgment and decree the parties have entered into fresh agreement dated 20.09.1972 and in compliance with such agreement the plaintiffs withdrew their appeal against the judgment of the Trial Court. The learned Judge was convinced that all disputes raised by the plaintiffs in Civil Suit No. 12 of 1969 would no longer survive in view of such further developments resulting into settlement between the parties and execution of agreement dated 20.09.1972, exh.129. The learned Judge noted that after execution of said agreement the appeal came to be withdrawn by the plaintiffs. 12. With respect to outcome of Civil Suit No.113 of 1973 the learned Judge noted that the plaintiffs herein filed appeal against judgment and decree in Civil Suit No.113 of 1973 before the District Court. The appeal was belated one. Application for condonation of delay was rejected by the District Court, upon which the plaintiffs approached the High Court by filing Civil Revision Application No.587 of 1977, which was rejected at admission stage by passing the following order:- “As the alleged finding about relations between defendants no.1, 2 and 3 cannot operate as res judicata, the plaintiff's suit having been dismissed and there being no question of an appeal by defendants, the apprehension of Mr. Shah is not well based. The Revision Application which is otherwise resting on finding of facts, is rejected.” 13. The learned Judge referred to several decisions of various High Courts to come to the conclusion that,- “54. The line of decisions referred to hereinabove clearly points to the proposition that the test whether a contention would be res judicata is whether the party against whom that contention was decided in the earlier proceeding had or had not a right of appeal against the decision in the earlier proceeding. The line of decisions referred to hereinabove clearly points to the proposition that the test whether a contention would be res judicata is whether the party against whom that contention was decided in the earlier proceeding had or had not a right of appeal against the decision in the earlier proceeding. If that party had a right of appeal against the decision in the earlier proceeding where the contention was found against him, then, if that party attempts to raise the same contention over again in the subsequent proceedings, it would be barred by res judicata. If however, that party had no right of appeal to challenge that decision in the earlier proceeding, on the ground that the ultimate decision was all in his favour, though the finding of a particular issue was against him, then in that event, no res judicata would be established against him in the subsequent proceedings, where he tries to re-agitate that very same contention.” 14. In view of such conclusions the learned Single Judge allowed the appeal in following terms:- “60. In view of the foregoing discussion, the appeal should be allowed. Hence it is ordered that:- (a) The respondents- defendants do hand over vacant and peaceful possession of the suit shop along with the running business in the name of M/s Chawla Cafe & Milk Bar, which is being run therein, to the appellants-plaintiffs; and they also should hand over to the appellants- plaintiffs, all the items of movable properties as mentioned in the list attached to the agreement, exh.129, or the value of those articles as mentioned in that list. That agreement exh.129 and the list annexed thereto are ordered to form part of this decree. (b) The respondents- defendants are also directed to pay to the appellants- plaintiffs, Rs.4,100/- being licence fee, upto the date of the suit. (c) The appellants- plaintiffs are also entitled to mesne profits and for that the trial court is directed to hold necessary inquiry for determination of the mesne profits. (d) The respondents- defendants shall pay to the appellants- plaintiffs the costs of the suit and of this appeal.” 15. It is this judgment which the original defendants have challenged in this LPA. Learned counsel Ms. Paurami B. Sheth for the defendants submitted that the learned Single Judge committed serious error in considering the terms of agreement, exh.129. (d) The respondents- defendants shall pay to the appellants- plaintiffs the costs of the suit and of this appeal.” 15. It is this judgment which the original defendants have challenged in this LPA. Learned counsel Ms. Paurami B. Sheth for the defendants submitted that the learned Single Judge committed serious error in considering the terms of agreement, exh.129. She would contend that premises were given on rent, giving licence to run business was merely a cloak. She submitted that previously the Trial Court had already ruled that defendant no.2 was tenant of the suit premises. The plaintiffs could not aver to the contrary on the ground of res judicata. She further contended that the learned Judge committed serious error in interpreting various terms of the said agreement to come to the conclusion that agreement created relationship of leave and licence. 16. On the other hand opponent no.1- Shri Ashok Thadharam Chawla appearing in person submitted that the learned Judge has examined the matter at length and correctly found that agreement, exh.129 was in nature of licence agreement, previous litigation had no bearing on the present suit. He submitted that defendants could not claim sub-tenancy which was not permissible under the law. He referred to various decisions in support of his contentions. 17. As noted only two questions came up for consideration before the learned Single Judge, viz., whether agreement, exh.129 was in nature of licence agreement or it created tenancy in favour of the defendants and whether suit was barred by res judicata. In order to deal with the first question we may refer to agreement, exh.129 dated 20.09.1972. It is titled as, “agreement to run a business” and starts with preamble which reads, “This deed of licence for running a business in the name of “Chawla Cafe & Milk Bar” is made on this … ”. Agreement also referred to differences between the parties which resulted into defendant no.2 filing Civil Suit No.255 of 1967 before Civil Court at Gandhidham for a declaration that he is a tenant and the plaintiffs filing Civil Suit No.12 of 1969 for taking account and charge of the business. Agreement also referred to differences between the parties which resulted into defendant no.2 filing Civil Suit No.255 of 1967 before Civil Court at Gandhidham for a declaration that he is a tenant and the plaintiffs filing Civil Suit No.12 of 1969 for taking account and charge of the business. In this background agreement recorded as under:- “WHEREAS the present licensees and the licensors having satisfied; agree to withdraw their objections and also the suits as mentioned above and WHEREAS the present licencees, having handed over the charge of the said business and possession of the premises to the owners, i.e. present licensors. WHEREAS the present licensees now approach the present owners licensors with a request to grant unto them leave and licence to run the said business in shop no.D-23, including all its furniture, fixtures and Ice Candy Machine as a pure and simple licensee and WHEREAS the licensors having felt the bona fides of the said licencees, agree to do so on terms and conditions mutually agreed upon as enumerated hereinafter. This deed of leave and licence, therefore, witnesseth as under:” 17.1 In para 1 of the said agreement it is provided that the licensors hereby grant the leave and licence unto the licensees, for manufacturing ice candy and for running the said business of Chawla Cafe & Milk Bar along with the furniture and fixtures as shown in the list annexed with the agreement for a period of five years with an option of further five years after completion of the original period subject to condition that the licensees shall inform the licensors in writing at least two months prior to end of original five year period of leave. If licensees want to continue business on leave and licence basis thereafter they should approach the licensors at least three months before end of the period of five years and if they offer a compensation equal to the market rate, then licensors can give preference to the licensees for a further period of five years. 18. If licensees want to continue business on leave and licence basis thereafter they should approach the licensors at least three months before end of the period of five years and if they offer a compensation equal to the market rate, then licensors can give preference to the licensees for a further period of five years. 18. In para 2 licensors agreed to pay licensees sum of Rs.475/- by way of licence fee for the first original five years, and Rs.600/- per month as a licence fee for second optional period of five years for running the said business of Cafe and Milk Bar and for manufacturing ice candy (hereinafter referred to as 'the said business') including use of furniture, fixtures, ice candy machine, radio, etc. as shown in the list attached herewith. 19. Paras 4, 5 and 6 are clauses of considerable importance which read as under:- “4. That the licensees have no connection with the landlord of premises and that the licensors will pay the rent to him directly. That it is mutually agreed that out of the two family room cabins which are there in Hotel premises some portion of the first one is kept in the possession of the licensors and they may use the same as they like with a board on it as 'owners cabin' on the outside of the cabin. 5. That the licensors have reserved their rights to utilize in any way and enjoy full rights and benefits of whatever the nature of the two cabins (one of Panbidi and cigarette and other as mentioned above in the above paragraph) situated along with the wall of the shop premises and other one in the shop and as such the licensees will have no right or any interest, of whatever nature therein and that the licensees shall not carry on any business of panbidi or any other business in the hotel in any form whatsoever except the one for manufacturing ice candy and for running 'Chawla Cafe & Milk Bar' for which this leave and licence is granted. 6. 6. That it is mutually agreed if the licensees do not intend to continue the said business in the said premises which is given to them for use only as a permissive use and inciliary to running the business they should inform the licensors at least before two months before the end of original five years or if it is renewed for further five years as mentioned above then at least before three months before the date of expiry of further five years and in any case if the licence period is expired or the licence is cancelled then the licensees shall hand over the peaceful possession of the said business with furnitures fixtures, etc. as mentioned in the list, on the expiry of the period or on the date fixed by the cancellation and in case the licensees fail to do so then the licensors will take necessary legal actions for taking possession against them and the licensees will be solely responsible for all the costs and consequences thereof.” 20. In para 7 the parties agreed that the licensors will remain in legal possession of the shop building and will have a control over the same and the licensors allow the licensees to make use of the premises as permissible use only and as ancillary for running the said business for certain fee mentioned in the document. It was further made clear that the licensees will have no right or interest in the said shop premises in any form whatsoever and that neither tenancy rights nor any right of any nature would be created in their favour. In para 8 it was reiterated that,- “8. It was further made clear that the licensees will have no right or interest in the said shop premises in any form whatsoever and that neither tenancy rights nor any right of any nature would be created in their favour. In para 8 it was reiterated that,- “8. It is also made clear that the licensors shall have a complete control over the said premises and that the said shop premises will remain in the name of licensors and they will be only responsible to the landlord and that it is further clear that the licensees are not been (sic.) given any occupancy rights nor any rights of whatsoever nature nor exclusive possession of the said premises and that it will remain as the property of the and in the legal possession of the licensors.” In para 10 it was provided that if licensees want to hand over the possession of the said business before the stipulated period the licensors will be entitled to claim the full licence fee for the entire period irrespective of handing over the possession of the business. In para 12 the parties agreed that the licensors would not be entitled to cancel leave and licence before the expiry of the licence period, original or optional, unless there is a breach of any other conditions committed by the licensee. In para 14 it was provided that licensors will be at liberty to make use of their cabins which they have reserved for their personal use and will also be at liberty to inspect the business and furnitures, fixtures and machinery at any time during the business hours and licensees shall show them and shall create no obstruction in the process. 21. It can thus, be seen that the document clearly was one in nature of licence agreement. At no stage, the plaintiffs intended to create any tenancy rights in favour of the defendants by executing the said agreement. As noted at the very outset the agreement is titled as 'deed of licence'. It gives right to defendants to run business in the name of Chawla Cafe and Milk Bar. Emphatically the agreement provides at multiple places that the plaintiffs continued to enjoy control and possession of the suit premises and defendants are permitted to permissive use thereof for limited purpose of running business. It gives right to defendants to run business in the name of Chawla Cafe and Milk Bar. Emphatically the agreement provides at multiple places that the plaintiffs continued to enjoy control and possession of the suit premises and defendants are permitted to permissive use thereof for limited purpose of running business. As noted in para 7 the plaintiffs will have full control of the suit premises. As per para 8, the plaintiffs would be solely responsible to the landlord. It was clarified that licensees were not given any occupancy right. In para 14 the parties agreed that the plaintiffs would have right to inspect the premises, furnitures and fixtures during the working hours and the defendants would not obstruct any such inspection. In para 4 it was provided that the licensees have no connection with the landlord of premises and that the licensors will pay the rent to him directly. 22. Looked from any angle the learned Judge was perfectly justified in coming to the conclusion that the agreement was in nature of leave and licence agreement and not tenancy agreement. 23. Regarding res judicata, as noted, the defendants referred to three civil litigations intra-party. With respect to the plaintiffs' suit, viz. Civil Suit No.12 of 1969 and defendants' suit, viz. Civil Suit No.255 of 1967, issue is possible of a summary disposal. We may recall that the plaintiffs' Civil Suit No.12 of 1969 for taking account of business came to be dismissed against which Appeal No.97 of 1972 was pending before District Court. On the other hand the suit filed by defendant no.2 being Civil Suit No.255 of 1967 was also pending before the Civil Court at Gandhidham when the agreement, Exh.129 was executed. Both these proceedings were specifically mentioned in the agreement-Exh.169 suggesting that pending such proceedings the parties have arrived at a settlement which culminated into agreement, exh.129. The learned Judge was therefore, perfectly justified in holding that orders passed in such proceedings would cast no shadow on the present litigation since the present suit arises out of bilateral relations emerging from agreement- exh.129. In the said agreement itself it was noted that pending such proceedings the parties having arrived at settlement executed the said document. It was precisely for this reason that within two days of execution of this document the plaintiffs withdrew their Appeal No.97 of 1972. In the said agreement itself it was noted that pending such proceedings the parties having arrived at settlement executed the said document. It was precisely for this reason that within two days of execution of this document the plaintiffs withdrew their Appeal No.97 of 1972. Defendant no.2 sometime thereafter withdrew his Civil Suit No. 255 of 1967. Civil Suit No.255 of 1967 came to be disposed as withdrawn unconditionally. Obviously therefore, nothing in the said suit would prevent the present plaintiffs from prosecuting their rights in these proceedings. The appeal of the plaintiffs against the judgment of the Trial Court in Civil Suit No.12 of 1969 came to be withdrawn in view of execution of agreement, Exh.129. Whatever might have been stated by the Trial Court while disposing of Civil Suit No.12 of 1969, therefore, would not form res judicata against the plaintiffs in pursuing their remedies arising out of agreement, exh.129. The question that needs little more elaborate consideration is judgment of the Trial Court in Civil Suit No.113 of 1973 filed by Haridas. Present plaintiffs and defendant no.2 were co-defendants in such suit. The said suit came to be disposed of by the Trial Court by judgment dated 09.05.1975. The plaintiffs' prayer for eviction of the suit premises was dismissed. However, the plaintiff was held entitled to recover Rs.100/- as arrears of rent from defendants no.1, 2 and 3, viz. present plaintiffs, and further sum of Rs.50/- per month from the said defendants by way of mesne profit for certain period. In such judgment the Trial Court referred to Civil Suit No.12 of 1969 filed by the present plaintiffs in which according to the Court issue regarding sub-letting of suit premises was directly at issue which was decided against the plaintiffs in such proceedings. The learned Judge noted that the plaintiffs' appeal came to be dismissed by the District Court. In this background the learned Judge deiced issue no.8 in favour of present defendant no.2, which issue reads as under:- “Issue No. 8. 27. Now the plff claimed Rs.100/- for the arrears of rent for Oct and Nov of 1967 and Rs.50/- per month for the mesne profits for the use and occupation. As far as this issue is concerned, there is no contest. It is also admitted fact that the deft no.1 has not paid rents of Oct & Nov 1967 to the plff. As far as this issue is concerned, there is no contest. It is also admitted fact that the deft no.1 has not paid rents of Oct & Nov 1967 to the plff. So, in my view, the plff succeeds to prove that he is entitled to recover Rs.100/- for the rents for Oct & Nov of 1967 and Rs.50/- p.m. for the mesne profits from the defts no.1 to 3 from the date of this suit till the date of order. So, in my opinion the plff succeeds to this issue and hence I am inclined to hold it decided in favour of the plaintiff accordingly.” Whether defendant no.4 proves that he is statutory tenant in respect of suit shop and is protected by section 15 of the Bombay Rent Act? 24. We are of the opinion that the learned Single Judge was perfectly justified in coming to the conclusion that the findings and conclusions arrived by the Trial Court in the said judgment dated 09.05.1975 would not constitute res judicata in the present proceedings. As noted the suit was filed by original landlord Haridas. Plaintiffs and defendant no.2 were co-defendants. The suit was for eviction decree. The Trial Court dismissed this prayer and refused to grant eviction. Since the suit was dismissed, the defendants no.1, 2 and 3, viz. present plaintiffs had no right to file appeal against such judgment since an appeal under section 96 of the Code of Civil Procedure would lie only against a decree. When decree is refused defendants could not have maintained their appeal merely on a finding or an issue which was decided against them. This is not to suggest that between co-plaintiffs in a given situation if unsuccessful defendant was aggrieved, finding would not act as res judicata in future litigation, if ingredients of section 11 of the CPC are satisfied. This is only to suggest that in a case where suit is dismissed, defendants would have no right to appeal merely on an adverse finding. 25. In a decision in case of Midnapur Zamindari Co. Ltd. Vs. Naresh Narayan Roy, reported in A.I.R. 1922 Privy Council 241 it is observed that defendants having succeeded on the other plea, had no occasion to go further as to the finding against them. On that basis it was held that mere adverse finding earlier decided would not act as res judicata in subsequent proceedings. Ltd. Vs. Naresh Narayan Roy, reported in A.I.R. 1922 Privy Council 241 it is observed that defendants having succeeded on the other plea, had no occasion to go further as to the finding against them. On that basis it was held that mere adverse finding earlier decided would not act as res judicata in subsequent proceedings. 26. In case of Saligram Sharan Singh Vs. The State of Bihar and others reported in A.I.R. 1974 Patna 1 brief facts were such the suit was dismissed by the Trial Court deciding all the issues including preliminary issues regarding maintainability of the suit for want of notice under section 80 of the Code of Civil Procedure and for absence of cause of action. The Appellate Court while confirming the decree of dismissal of the suit on the preliminary issues gave adverse findings on other issues. It was held that decision on those issues being of no effect cannot operate as res judicata in subsequent suit or proceeding and as such the defendant had no right to file a second appeal against the decision. The learned Single Judge of this Court in case of Mehta Jivanlal Vasantji Vs. The Trustees of Gayatri Mandir, reported in 1965 GLR 194 , held that, “4. With respect to the learned trial Judge, it must be pointed out that the learned trial Judge has completely overlooked one important aspect of the law relating to re judicata. It is well settled law and it is also provided in section 11 of the Code of Civil Procedure that before any issue or any subsequent suit can be barred by res judicata the earlier matter must have been heard and finally disposed of by the Court in the earlier suit. Now, in the earlier suit at the stage of the Second Appeal before the High Court, which was disposed of by Vyas, J. in 1958, the 'Pujari', who is the defendant in the present suit, had succeeded. Therefore, the 'Pujari' could not have appealed to the Supreme Court or by way of Letters Patent Appeal against the findings of Vyas, J. regarding the legality of the Trust or the validity of the appointment of the trustees or the validity of the rules framed by them, which points were decided by Vyas, J. on merits in Second Appeal No.153 of 1957 on January 9, 1958. Therefore, it could not be said that on those points there was any final disposal by the High Court in the earlier litigation. In the commentaries of Sir Dinshah Mulla on the Civil Procedure Code, 12th Ed. it has been observed as follows:- “If the plaintiff's suit is wholly dismissed, no issue decided against the defendant can operate as res judicata against him in a subsequent suit, for the defendant cannot appeal from a finding on any such issue, the decree being wholly in his favour” On the finding recorded by him that the notice given by the trustees to the 'Pujari' violated the principles of natural justice, Vyas, J. held that the suit of the plaintiffs should be wholly dismissed. That being the case, whatever observations were made regarding the merits of the case, viz., regarding the validity of the Trust or the appointment of the trustees or validity of the rules or the competence of the trustees to remove the 'Pujari' cannot operate as res judicata on any of these points. In illustration No.(1) based on a decision of the Calcutta High Court, at page 92 of Sir Dinshah Mulla's Book on C.P.C. It has been stated as follows:- “In a suit by A against B for ejectment, B contends (1) that no notice to quit was given, and (2) that the land being majhes land, he is not liable to be evicted at all. The suit is dismissed on a finding that no notice to quit was given. The Court, however, also finds that the land is not majhes land. A afterwards sues B to evict him from the land after giving notice to B. B contends that the land is majhes land and that he is not liable to be evicted. The finding in the first suit that the land was not majhes land does not operate as res judicata so as to preclude B from raising the same contention in the subsequent suit, the reason being that A's suit having been dismissed, B could not have appealed from the finding that the land was not majhes land. The Court having found in the first suit that A had not given notice to quit, it was not necessary for the determination of the suit to decide whether the land was majhes land or not. The Court having found in the first suit that A had not given notice to quit, it was not necessary for the determination of the suit to decide whether the land was majhes land or not. The first suit was dismissed in spite of the finding in A's favour that the land was not majhes land.” This principles in connection with the rule of res judicata is so well known that it is not necessary for me to cite any authorities or any further rulings in this connection. It is, therefore, clear that the learned Trial Judge was in error when he held that the points referred to in issues nos.3 and 4 to the extent that he so held were barred by res judicata. Under these circumstances it is clear that the decision that points referred to in issue no.3 and the question of legality of the Trust referred to in issue no.4 were barred by res judicata, was clearly contrary to legal principles.” 27. In case of Banarsi and others Vs. Ram Phal, reported in A.I.R. 2003 SC 1989, the Supreme Court held and observed as under:- “8. Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal (See Phoolchand and Anr. v. Gopal Lal, 1967 3 SCR 153 ; Smt. Jatan Kanwar Golcha v. M/s Golcha Properties (P) Ltd., 1970 3 SCC 573 ; Smt. Ganga Bai v. Vijay Kumar and Ors., 1974 2 SCC 393 . No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of the CPC provide for an appeal against decree and not against judgment.” 28. In case of Nalakath Sainuddin Vs. Koorikadan Sulaiman, reported in A.I.R. 2002 SC 2562, Supreme Court observed as under:- “16. We agree with the view taken by the High Courts of Madhya Pradesh and Madras. We are of the opinion that :- (i) .. .. .. (ii) .. .. .. In case of Nalakath Sainuddin Vs. Koorikadan Sulaiman, reported in A.I.R. 2002 SC 2562, Supreme Court observed as under:- “16. We agree with the view taken by the High Courts of Madhya Pradesh and Madras. We are of the opinion that :- (i) .. .. .. (ii) .. .. .. (iii) ’Any aggrieved party’, the expression employed in Section 20(1), means a person feeling aggrieved by the ultimate decision, that is, the operative part of the order. A party to the proceedings, who has succeeded in securing the relief prayed for, is not a party aggrieved though the order contains a finding or two adverse to him. The respondent can support the order and pray for the ultimate decision being sustained, without filing a revision of his own, and for achieving such end he may seek reversal of any findings recorded against him. However, if the non-petitioning party feels entitled to a more beneficial or larger order in his favour but was allowed a lesser or smaller relief then to the extent of claiming the more beneficial or larger relief he should have filed a revision petition of his own as he was ’an aggrieved party’ to that extent.” 29. In case of Deva Ram and another Vs. Ishwar Chand and another, reported in A.I.R. 1996 SC 378 it was observed as under:- “24. Let us now consider the plea regarding the effect of an adverse finding recorded by the court against a party in whose favour the suit or the appeal is ultimately decided. 25. It is provided in Section 96 of the C.P.C. that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeal from the decision of such court. So also, Section 100 provides that an appeal shall lie to the High Court from every decree passed in appeal. Thus sine qua non in both the provisions is the "decree" and unless the decree is passed, an appeal would not lie under Section 96 nor would it lie under Section 100 of the Civil Procedure Code. Similarly, an appeal lies against an "order" under Section 104 read with Order 43 Rule 1 of the Civil Procedure Code where the "orders" against which appeal would lie have been enumerated. Similarly, an appeal lies against an "order" under Section 104 read with Order 43 Rule 1 of the Civil Procedure Code where the "orders" against which appeal would lie have been enumerated. Unless there is an "order" as defined in Section 2(14) and unless that "order" falls within the list of "orders" indicated in Order 43, an appeal would not lie. 26. Thus, an appeal does not lie against mere "findings" recorded by a court unless the findings amount to a "decree" or "order". Where a suit, is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue, has no right of appeal and he cannot question those findings before the appellate court. (See Ganga Bai v. Vinay Kumar (1974) 3 S.C.R.882 : (AIR 1974 SSC 1126).” 30. In case of Smt. Ganga Bai Vs. Vijay Kumar and others, reported in 1974 SC 1126 it was observed as under:- “17. These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as ag1ainst an order passed under rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. It must follow that First Appeal No.72 of 1959 filed by defendants 2 and 3 was not maintainable as it was directed against a mere finding recorded by the trial Court.” 31. As noted, the plaintiffs did try to appeal against the said judgment in Civil Suit No.113 of 1973. However, said appeal the District Court dismissed on the ground of limitation. When he filed revision, the High Court observed that since the suit is dismissed any adverse finding would not form res judicata against the defendants. 32. For all these reasons we do not find any error in the view of the learned Single Judge. The Letters Patent Appeal is dismissed. No cost. 33. Consequently all the Civil Applications are disposed of. Record & Proceeding be transmitted to the Trial Court. 34. Learned counsel for the appellants requests for continuance of interim protection for a period of four weeks to enable them to file an appeal. This judgment shall stand stayed till 30th October 2015. Appeal dismissed.