JUDGMENT AND ORDER : N. Chaudhury, J. 1. This Second Appeal is directed against the concurrent findings of the two Courts below. Both the Courts dismissed the suit of the plaintiff on the point of res judicata. 2. This Court while admitting the Second Appeal framed the following substantial question of law:- "Whether the learned Courts below erred in law in holding the suit to be barred under the principle of res judicata deciding the issue no. 3 against the appellant?" 3. To understand the substantial question of law framed above it is necessary to have a look at the basic minimum facts involved in the present suit. Present appellant as plaintiff instituted Title Suit No. 20/1993 in the Court of learned Munsiff No. 3, Cachar at Silchar stating that the suit land measuring 3K 10 Ch pertaining to 2nd R.S. Patta No. 56 and Dag No. 206 originally belonged to one Gopal Chandra Deb and plaintiff was a lessee under him. Subsequently, on 12.07.1991 the plaintiff purchased the ownership right of the land from the original owner Gopal Chandra Deb. It is further averred that defendant No. 1 being brother of the plaintiff's husband and as he did not have any place to live in, the plaintiff's husband permitted him to construct a house upon the suit land and allowed defendant No. 1 to stay there. But of late the defendant No. 1 started creating the rumour that he is the owner of the land and also assaulted the plaintiff. Under such circumstances the suit was instituted for declaration of right, title and interest and recovery of khas possession by evicting the defendant No. 1. 4. The defendant contested the suit by filing written statement and after conclusion of the trial the learned trial Court was of the opinion that plaintiff acquired valid right, title and interest with respect to the suit land on the basis of purchase from the original landlord. The suit land was never under possession of the plaintiff but it was under possession of the defendant No. 1 he being another son of the original lessee, namely, Sachindra Manal. Plaintiff's husband and the defendant No. 1 are sons of Sachindra Mandal. The suit land was never under possession of the plaintiff but it was under possession of the defendant No. 1 he being another son of the original lessee, namely, Sachindra Manal. Plaintiff's husband and the defendant No. 1 are sons of Sachindra Mandal. The learned trial Court accordingly decreed the suit by judgment and decree dated 08.09.1995 holding that plaintiff being owner of the suit land stepped into shoes of landlord and defendant No. 1 Anil Mandal continued to remain as lessee with respect to the suit land. The lease was in force and the same not having been determined, plaintiff was not entitled to a decree for recovery of khas possession. Accordingly, the suit was partly decreed. The aforesaid judgment and decree dated 08.09.1995 attained finality as neither plaintiff nor the defendant No. 1 preferred any appeal before the appellate Court. 5. The plaintiff thereafter instituted a second suit being Title Suit No. 39/1996 in the Court of learned Civil Judge (Junior Division) No. 1, Cachar at Silchar narrating the whole story about institution of the earlier suit and then claiming in paragraph 5 that there was no lessor-lessee relationship between the plaintiff and the defendant No. 1 as there was no fresh agreement after the demised land was purchased by the plaintiff. Be that as it may, in paragraph 7 of the plaint the plaintiff stated that she served a notice through her lawyer on 20.12.1995 on the defendant No. 1 asking him to leave and vacate the suit land. The defendant gave a reply thereto on 07.02.1996 and did not vacate the premises. It is under such circumstances plaintiff made a prayer for declaration that lease of late Sachindra Mandal had already been determined and for recovery of khas possession by evicting the defendants. Paragraphs 5, 7 and 11 of the plaint are quoted below for ready reference:- "5. That since the day of judgment passed by the learned court on 8-9-95 in T.S. 20/1993, the plaintiff has become absolute owner as well as landlord of entire land mentioned in the schedule-1 below along with the land mentioned in schedule-2. The alleged right of lease, if any, of late Sachindra Mondal has terminated when the original landlord Gopal Chandra Deb passed the ownership right to the plaintiff." "7. The alleged right of lease, if any, of late Sachindra Mondal has terminated when the original landlord Gopal Chandra Deb passed the ownership right to the plaintiff." "7. That although the defendants are not entitled to get any notice, the plaintiff served him notice through her lawyer on 20-12-95 to leave & vacate the land & premises mentioned in the schedule-2 & hand over peaceful & vacant possession thereof to the plaintiff because the plaintiff requires the same very badly for family but the defendants turned a deaf ear to the plaintiff's request. On the contrary the defendants sent a reply to the said lawyer's notice of the plaintiff through his lawyer on 7-2-96 to the effect that defendants right, title & interest have been decided by the court in his favour in T.S. No. 20/93." "11. The plaintiff, therefore, prays that a decree be passed:- (a) For a declaration that the lease of Late Sachindra Mondol has already been determined. (b) Deleted vide order dated 5-10-2001. (c) For a recovery of khas possession of the land mentioned in schedule-2 by evicting the defendants. (d) For temporary/permanent injunction restraining the defendants from creating fencing around the disputed land & from changing nature & feature of the suit land mentioned in the schedule-2. (e) For cost of the suit & for such other relief as the court deems fit & proper." 6. On being summoned the defendant appeared and filed written statement contesting the suit of the plaintiff not only on merit but also on the point of maintainability. The defendant took a specific plea that the suit of the plaintiff is barred by res judicata vide paragraph 12(j) and (k) of the written statement. 7. The learned trial Court after hearing the parties framed as many as seven issues and thereafter an additional issue was also framed. All these eight issues are quoted below:- "1. Whether there is any cause of action? 2. Whether the suit is barred by non-joinder of necessary parties? 3. Whether the suit is barred by res judicata? 4. Whether the suit is maintainable in its present form? 5. Whether the defendant No. 1 has right, title and interest over schedule-2 land? 6. Whether the plaintiff has any right, title, interest and possession over the schedule 2 land? 7. Whether the plaintiff is entitled to any decree? 3. Whether the suit is barred by res judicata? 4. Whether the suit is maintainable in its present form? 5. Whether the defendant No. 1 has right, title and interest over schedule-2 land? 6. Whether the plaintiff has any right, title, interest and possession over the schedule 2 land? 7. Whether the plaintiff is entitled to any decree? Additional Issue:- (A) Whether the lease of Late Sachinidra Mandal has already been determined in respect of the suit land?" 8. In course of trial plaintiff examined two witnesses and proved as many as 7 documents as Exts-1 to 7. Defendant examined only one witness but did not adduce any documentary evidence. After hearing the learned counsel for the parties the learned trial Court was of the view that the suit of the plaintiff is barred by res judicata. The Issue No. 3 was accordingly decided against the plaintiff. Finally, by deciding the other issues the learned trial Court held as against additional Issue No. A that there is no evidence to show that lease right of Sachindra Mandal have been determined in the present suit. Accordingly, the suit of the plaintiff was dismissed in entirety with cost by judgment and decree dated 20.12.2003. 9. Aggrieved, plaintiff preferred Title Appeal No. 14/2004 in the Court of learned Civil Judge (Senior Division), Cachar at Silchar. The learned First Appellate Court by his judgment and decree dated 20.05.2006 dismissed the appeal and upheld the judgment and decree passed by the learned trial Court. Thus, the concurrent findings of the learned Courts below are that the suit of the plaintiff is barred by principle of res juidicata in view of judgment and decree dated 08.09.1995 in Title Suit No. 20/1993 which was exhibited as Ext-2 in the present suit. 10. I have heard Mr. P. Roy, learned counsel for the appellant and Mr. N. Dhar, learned counsel for the respondents. I have perused the lower Court records including the exhibits which were furnished by the learned counsel for the appellant as the original exhibits were withdrawn with the leave of the Court. 11. Mr. P. Roy, learned counsel for the appellant, would argue that the substantial question of law is required to be decided in favour of the appellant inasmuch as the earlier suit was instituted describing the defendant No. 1 as a permissive occupier/trespasser. 11. Mr. P. Roy, learned counsel for the appellant, would argue that the substantial question of law is required to be decided in favour of the appellant inasmuch as the earlier suit was instituted describing the defendant No. 1 as a permissive occupier/trespasser. The plaintiff had prayed for declaration of right, title and interest and eviction of the defendant No. 1 accordingly. That suit was decided vide Ext-2 where from it would appear that the learned trial Court had declared right, title and interest of the plaintiff over the suit land but coming to Issue No. 10 it was held that Sachindra Mandal or defendant No. 1 was not an occupancy tenant. Defendant No. 1 was at best a lessee under the plaintiff and since the lease between plaintiff and the defendant No. 1 was not determined, so plaintiff was not entitled to any relief of khas possession by evicting the defendant No. 1. Since the learned trial Court held that there was an existing lease between the plaintiff and the defendant No. 1, she issued notice for quitting the suit property on 20.12.1995 and that notice has been exhibited as Ext-4. According to Mr. P. Roy, although it was pleaded in paragraph 5 of the plaint that there was no lease in between the plaintiff and the defendant No. 1 and that lease stood automatically terminated after Gopal Chandra Deb had transferred his right, title and interest in favour of the plaintiff, yet, in paragraph 7 of the plaint plaintiff by way of abundant caution had issued a notice to the defendant No. 1 for quitting the suit property on expiry of 20 days from the date of issue of the notice. The defendant No. 1 having failed to comply with the notice the suit was instituted after three months and so the cause of action of the latter suit is altogether different from the previously instituted Title Suit No. 20/1993. On that ground the sole substantial question of law is liable to be decided in favour of the appellant. 12. Per contra, Mr. On that ground the sole substantial question of law is liable to be decided in favour of the appellant. 12. Per contra, Mr. N. Dhar, learned counsel for the respondents, would argue that the plaintiff set up the foundation of her case in paragraph 5 of the plaint by denying existence of any lesser-lessee relationship with the defendant No. 1 and this is why in paragraph 11(a) of the plaint the plaintiff made a prayer for declaring that the lease in favour of Sachindra Mandal, who is none other than the predecessor-in-interest of the defendant No. 1, stood determined. The plaintiff has not made any claim that on the basis of Ext-4 existing lease between the plaintiff and the defendant No. 1 stood determined. She rather adhered to the earlier pleading that there was no lease whatsoever between the plaintiff and the defendant No. 1 as lease in favour of Sachindra Mandal stood terminated on the date and time sale deed was executed by Gopal Chandra Deb in favour of the plaintiff. This point regarding existence of lease between the plaintiff and the defendant No. 1 after death of Sachindra Mandal had been decided in the earlier suit i.e. Title Suit No. 20/1993. The plaintiff did not make any prayer for eviction of the defendant on that ground in the earlier suit and so bar of res judicata under Explanation IV of Section 11 of the CPC applies to the case in hand. With these arguments Mr. Dhar prayed that the sole substantial question of law should be decided in the negative and in favour of the respondents. 13. I have given my anxious consideration to the argument put forward by the learned counsel for the parties. I have myself gone through the earlier judgment vide Ext-2. I have also perused the recital made in the complaint. 14. As pointed out above, in paragraph 5 of the plaint it is the case of the plaintiff that there is no lease between the plaintiff and the defendant No. 1.The reason is that original landlord was Gopal Chandra Deb and he had lessor-lessee relationship with Sachindra Mandal. Sachindra Mandal being father of the plaintiff's husband and defendant No. 1 both of them stepped into the shoe of lessee after death of Sachindra Mandal under Gopal Chandra Deb, the original landlord. Sachindra Mandal being father of the plaintiff's husband and defendant No. 1 both of them stepped into the shoe of lessee after death of Sachindra Mandal under Gopal Chandra Deb, the original landlord. But after Gopal Chandra Deb executed the sale deed in favour of the plaintiff on 12.07.1991 the lessor-lessee relationship between Gopal Chandra Deb and the successors-in-interest of Sachindra Mandal automatically came to an end. This is the foundation of the plaintiff's case in paragraph 5 of the plaint. Even the prayer made in paragraph 11(a) of the plaint is also in consonance of such recital of fact. Plaintiff has not made any prayer for adjudication that lease between plaintiff and the defendant No. 1 has been determined on the basis of any legal notice or otherwise. A lease may be determined under any of the provisions of Section 111 of the Transfer of Property Act. The plaintiff could have determined the lease asking the defendant to quit by service of notice under Section 106 of the Transfer of Property Act as issuance of notice under Section 106 is also a means for determining lease under Section 111(h) of the Transfer of Property Act, 1882. Even in the notice issued vide Ext-4 the plaintiff did not say that lease between plaintiff and the defendant No. 1 was being determined thereby. Rather, it was mentioned that defendant No. 1 was not entitled to any notice and he was merely asked to quit and vacate the suit premises after expiry of 20 days. This stand taken by the plaintiff that defendant No. 1 is not a lessee could have been made on the same ground in the previously instituted suit. Previous suit had been instituted after purchase of the suit land and thereby the plaintiff made a prayer for declaration of her right, title and interest and for eviction of the defendant No. 1 he being a permissive occupier or a trespasser. In that suit itself the plaintiff could have taken the plea as taken in paragraph 5 of the plaint that lessor-lessee relationship between Gopal Chandra Deb or the plaintiff and the defendant No. 1 had automatically stood determined on execution of sale deed by Gopal Chandra Deb in favour of the plaintiff. Such option was open to the plaintiff but plaintiff did not come forward with such a case. Such option was open to the plaintiff but plaintiff did not come forward with such a case. After the said suit was decided now a new plea has been made on the basis of the previous facts saying that earlier lease stood automatically terminated. It is established law under Explanation IV to Section 11 of the CPC that if a point of defence or attack in the former suit could have been made in that event although the same was not made shall be deemed to have been a matter directly and substantially in issue in such suit. The new plea of determination of lease of defendant No. 1 as on the date and time of execution of sale deed by Gopal Chandra Deb in favour of the plaintiff was available to the plaintiff, yet, she did not take the plea at that time and so by operation Explanation IV to Section 11 of the CPC it is to be deemed that such a defence was taken and so the matter had been directly and substantially in issue in the previous suit. The learned trial Court, therefore, had not committed any error in holding that the subsequent suit instituted by the plaintiff is barred by res judicata. 15. The aforesaid view taken by the learned Courts below also cannot be questioned on the basis of Ext-4 notice. Notice has been issued by determining the lease. Section 111 of the Transfer of Property Act empowers the plaintiff to determine a lease by giving notice or by asking him to quit. What should be the content of the notice and what should be the procedure followed have been laid down under Section 106 of the Transfer of Property Act. Although a notice was given by the plaintiff to the defendant No. 1, yet, that was not for determination of lease and even the suit has not been instituted on that ground. The suit has been instituted for declaration that lease in favour of Schindra Mandal stood determined. This plea could have been taken earlier and was not taken and therefore for the aforesaid reasons it cannot be said that the plaintiff issued a fresh notice determining lease with the defendant No. 1. The suit has been instituted for declaration that lease in favour of Schindra Mandal stood determined. This plea could have been taken earlier and was not taken and therefore for the aforesaid reasons it cannot be said that the plaintiff issued a fresh notice determining lease with the defendant No. 1. Without issuing a fresh notice as contemplated under Section 106 of the Transfer of Property Act, a cause of action cannot be said to have arisen as in view of the judgment passed by the learned Court vide Ext-2. There is a continuing lease between the plaintiff and the defendant No. 1. Unless and until this lease is determined by any of the provisions of Section 111 of the Transfer of Property Act the same continues to remain in force in view of the Ext-2 judgment and so the findings of the learned Courts below in regard to the principle of res judicata cannot be said to be perverse or erroneous. 16. In view of what has been stated above, the sole substantial question of law stand decided in the negative and against the appellant. The appeal stands dismissed. No order as to cost. Send down the records.