JUDGMENT : CHANDRA KUMAR RAI, J. 1. Heard Mr. B.L. Yadav and Mr. K.K. Kanojiya, learned counsel for the appellant and Mr. Prem Shanker Prasad, learned counsel for the respondent. 2. This is plaintiff's second appeal under Section 100 of Civil Procedure Code against the judgment and decree dated 07.08.1982 passed in Civil Appeal No. 153 of 1980 arising out of original Suit No. 880 of 1976. 3. The present second appeal was admitted on 21.07.1983 but substantial question was not framed at that time. 4. Learned counsel for the appellant is pressing the only substantial question of law which has been framed by him in his memo of Second Appeal, accordingly, this appeal shall be heard on following substantial question of law: “1. Whether judgment and decree in a suit between the father of the appellant and some other defendant, who is defendant in the present suit about the same land, which is ancestral and not self acquired property of the father of the appellant, principle of res-judicata will apply or not?” 5. Both parties agreed that second appeal be heard and disposed of on the substantial question of law as framed by this Court today itself. 6. Plaint in brief is that plaintiff's house and Sahan is situated in plot No. 998 Shikkimi Plot Nos. 248, 249, 250, 251 which is ancestral house and Sahan of the plaintiff; village in question is partitioned village; plaintiff's grand father Badloo was alive at the time of partition; one Doodh Nath brother of Badloo had died issueless accordingly, Badloo came in possession on the house and Sahan of Doodh Nath. Shikkimi No. 248 was recorded as parti but plaintiff's grand father established his Sahan over the same with the permission of zamindar and the same is being used in the same manner till date. Shikkimi No. 248 was in the shape of Banjar and abadi, as such it was recorded as Banjar in order to avoid any difficulty plaintiff got the settlement of the same from Gaon Sahba. Plaintiff was born before the date of vesting and he was living separate from his father as such father was impleaded as defendant IInd set. Defendant Ist set put a palani in the disputed land 2-3 months before the institution of the suit and plaintiff reside outside due to employment. Plaintiff requested the defendant Ist set to remove palani and ghoora etc. Defendant Ist set put a palani in the disputed land 2-3 months before the institution of the suit and plaintiff reside outside due to employment. Plaintiff requested the defendant Ist set to remove palani and ghoora etc. when plaintiff came back to his home defendant Ist set did not pay any attention to the request, hence the suit. 7. Defendant denied the plaint allegation and alleged in his additional statement that plaintiff and defendant No. 6 are son and father and reside together for all purposes. He further alleged that in respect to disputed property plaintiff's father who is defendant No. 6 (Naurangi) instituted a suit No. 687 of 1967 in the court of Munsif IIIrd Deoria against defendant Ist and their predecessor in interest which was dismissed by trial court and the Civil Appeal filed before District Judge Deoria was also dismissed, hence present suit in respect of same property is barred by principle of res-judicata. He further alleged that suit is also barred by principle of estoppal and acquiescence. He further alleged that property has been settled with defendant Ist set under Section-9 of U.P.Z.A. & L.R. Act as such suit filed by plaintiff is frivolous and is liable to be dismissed. 8. Plaintiff and Defendant Ist set adduced oral and documentary evidences in support of their. Defendant Ist filed judgment and decree of suit No. 687 of 1967 and Civil Appeal No. 290 of 1971 as well as the map prepared in suit No. 687 of 1967 in order to demonstrate that property in dispute in both the cases are same and identical. 9. Before trial court 8 issues were framed in which issue No. 3 was whether suit is barred by res-judicata as alleged in Para No. 5 of the written statement. 10. Trial Court considering the each and every oral and documentary evidence, came to conclusion that present suit filed by plaintiff is barred by res-judicata in view of judgment and decree passed in earlier Suit No. 687 of 1967 in respect of same property. 11. 10. Trial Court considering the each and every oral and documentary evidence, came to conclusion that present suit filed by plaintiff is barred by res-judicata in view of judgment and decree passed in earlier Suit No. 687 of 1967 in respect of same property. 11. While deciding the issue No. 3 trial Court has discussed about the oral statement of PW-1 (Plaintiff himself) who in his examination-in-chief admit that he came to know about the Suit No. 687 of 1967 about 5-6 years before but in his cross-examination he denied about the knowledge of Suit No. 687 of 1967 accordingly trial court recorded finding that plaintiff is making false statement as trial court while considering the documentary evidence relating to Suit No. 687 of 1967 recorded finding that property of earlier Suit No. 687 of 1967 as well as present suit is same and identical. Accordingly issue No. 3 was decided against the plaintiff and in favour of the defendant Ist set. Other issues were decided accordingly. 12. Lower Appellate Court confirmed the finding of fact recorded by trial court on issue No. 3 that present suit is barred by principle of res-judicata due to decree passed in suit No. 687 of 1967 filed by plaintiff's grand father in respect to same property. 13. Counsel for the appellant submitted that present suit is not barred by principle of res-judicata as judgment and decree passed in earlier suit No. 687 of 1967 was filed by plaintiff's father, although plaintiff and plaintiff's father were residing separate since long. He further submitted that property in dispute is ancestral property of the plaintiff. He further submitted that property in dispute has been settled with the plaintiff and his father under Section 9 of U.P.Z.A. & L.R. Act accordingly counsel for the appellant submitted that judgment and decree passed by courts below be set aside. 14. On the other hand, learned counsel for the respondent Ist set submitted that property in dispute of present suit is same and identical to the property in dispute of earlier suit No. 687 of 1967 filed by plaintiff's father, as such present suit is barred by principle of res-judicata. 14. On the other hand, learned counsel for the respondent Ist set submitted that property in dispute of present suit is same and identical to the property in dispute of earlier suit No. 687 of 1967 filed by plaintiff's father, as such present suit is barred by principle of res-judicata. He further submitted that concurrent finding of fact have been recorded by trial court as well as by lower appellate court that present suit is barred by principle of res-judicata, as such no interference is required and second appeal is liable to be dismissed. 15. Heard Counsel for the parties and perused the record on the substantial question of law as quoted above. 16. In order to appreciate the argument advanced by learned counsel for the parties as well as to consider the substantial question of law as framed the perusal of section-11 of Civil Procedure Code will be necessary, which is as follows: “CPC Section 11. Res-judicata. 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 purposes 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 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 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 reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings 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 decide such issue, shall operate as res-judicata in as 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.” 17. The trial Court while deciding the issue No. 3 relating to res-judicata as held as follows: HINDI IMAGE 18. Trial Court while deciding the issue No. 3 has taken into consideration the oral evidence as well as documentary evidences adduced by the parties. In the oral evidence statement in chief of PW-1 will be relevant where he stated that he came to know about the judgment and decree passed in Suit No. 687 of 1967, 5-6 years before although in cross examination he denied knowledge about the judgment and decree passed in suit No. 687 of 1967, the trial court came to conclusion that plaintiff is stating wrong fact about the judgment and decree passed in suit No. 687 of 1967. Trial Court further examined the judgment and decree as well as the map prepared in the suit and came to the conclusion that property in earlier No. 687 of 1967 as well as in the present suit is same and identical. Trial court also recorded finding that according to plaint allegation plaintiff states that according to Hindu law plaintiff is owner of the disputed property having coparcenary right in the property as such the right decided in favour or against the plaintiff's father will bind plaintiff also. Trial court also recorded finding that according to plaint allegation plaintiff states that according to Hindu law plaintiff is owner of the disputed property having coparcenary right in the property as such the right decided in favour or against the plaintiff's father will bind plaintiff also. Considering each and every aspect trial court decided the issue No. 3 against the plaintiff and recorded finding of fact that present suit is barred by principle of res-judicata and is barred by section-11 of Civil Procedure Code. 19. Hon’ble Apex Court in the case of Forward Construction Co. vs. Prabhat Mandal Andheri and other interpreted the principle of Res-judicata specially explanation- IV to VI of Section 11 of Civil Procedure Code paragaraph nos. 19, 20 and 21 of the judgment rendered in Forward Construction Co. (Supra) are as follows: The second question for consideration is whether the present writ petition is barred by res-judicata. This plea has been negatived by the High Court for two reasons: (1) that in the earlier writ petition the validity of the permission granted under r.4(a)(i) of the Development Control Rules was not in issue and (2) that the earlier writ petition filed by Shri Thakkar was not a bona fide one in as much as he was put up by some disgruntled builder, namely, of M/s. Western Builders. “19. The second question for consideration is whether the present writ petition is barred by res-judicata. This plea has been negatived by the High Court for two reasons: (1) that in the earlier writ petition the validity of the permission granted under r.4(a)(i) of the Development Control Rules was not in issue and (2) that the earlier writ petition filed by Shri Thakkar was not a bona fide one in as much as he was put up by some disgruntled builder, namely of M/s. Western Builders. 20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res-judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to S.11 C.P.C. provides that 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 IV to S.11 C.P.C. provides that 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. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming with the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force. 21. The second reason given by the High Court however, holds good. Explanation VI to S.11 provides: “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.” But it is only when the conditions of Explanation VI are satisfied that a decision in the litigation will bind all persons interested in the right litigated and the onus of proving the want of bona fides in respect of the previous litigation is on the party seeking to avoid the decision. The words “public right” have been added in Explanation VI in view of the new S.91 C.P.C. and to prevent multiplicity of litigation in respect of public right. In view of Explanation VI it cannot be disputed that S.11 applies to public interest litigation as well but it must be proved that the previous litigation was the public interest litigation not by way of a private grievance. It has to be a bona-fide litigation in respect of a right which is common and is agitated in common with others. 20. It has to be a bona-fide litigation in respect of a right which is common and is agitated in common with others. 20. Judgment and decree of trial court dated 21.04.1980 has been maintained by lower appellate Court by dismissing civil appeal by judgment and decree dated 07.08.1982 considering the point of section-11 of Civil Procedure Code. 21. Considering the finding recorded by courts below ratio of law laid down by Apex Court as well as from the perusal of records it is very much clear that present suit filed by plaintiff is barred by principle of res-judicata, the substantial question of law framed is answered accordingly. 22. In the result, it cannot be said that the courts below have erred in deciding the issue of res-judicata against the plaintiff. The appeal lacks merit and is liable to be dismissed. Appeal is hereby dismissed.