The principle of res judicata does not apply if previous court decisions did not address the complete question of title. Lack of permission for the purchase of Khas Mahal property does not hinder the plaintiff's title.

R.M.Prasad, J.

1. This appeal is directed against the judgment and decree in affirmance passed in Title Appeal No. 19 of 1996/21 of 1998 by the 7th Additional District Judge, Munger arising out of Title Suit No. 57 of 1985.

2. Defendant 1st party are the appellants.

3. Plaintiff filed the suit for declaration of title over Schedule A property of the plaint and, further, sought for eviction of the defendants from the property mentioned in Schedule C of the plaint and also for mesne profit of Rs. 500 for wrongful possession of defendant 1st party over the portion of the suit property taken in delivery of possession in Title Execution Case No. 33/74 along with the cost of the suit.

4. It is not in dispute that this the property originally belonged to Udit Narayan Sah and his son Raj Kumar Sah, defendant 3rd party.

5. The admitted case of the parties is that one Udit Narayan Sah and his son Raj Kumar Sah were the owner of the entire suit house in which different tenants were in occupation and there was a delivery of possession on eviction in favour of the original owners against some tenants, namely, Nashim Bano and others. Consequently there was Title Execution Case No. 33 of 1974 instituted by the decree holders, who, according to the plaintiffs, transferred the entire suit property for Rs. 10,000 to Raj Kumari Devi on 28-9-1977 and put her in possession. She has also been mutated in the Municipality, vide order dated 2-7-1978 in Mutation Case No. 1/78-79. Thereafter said Raj Kumari Devi transferred the suit properties to the plaintiff for a sum of Rs. 15,000 through registered sale-deed dated 21-12-1978 which was executed in pursuance of an agreement dated 16-1-1978 and at that time Rs. 9,000 was paid in advance. In the Execution Case Raj Kumari Devi filed Misc. No. 60/78 for substitution as a decree holder. Contesting defendants also filed a petition for substitution claiming to have purchased the suit house, Schedule B of the plaint, for Rs. 18,000 from the original owner which on rejection gave rise to Misc. Case No. 4/81 in the execution case. Ultimately, they were disposed of by common order dated 8-5-1984 rejecting the prayer of the plaintiff and allowing the contesting defendants to be substituted. The aforesaid order was affirmed in the appeal. The plaintiff after getting knowledge of the alleged agreement and sale-deeds executed in favour of the contesting defendants challenged their validity in the suit.

6. The questions raised before the lower appellate Court were that

(i) Since after the alleged purchase, prayer of the plaintiff for substitution as decree-holder has already been dismissed on contest and the order is upheld in appeal, the same operates as res judicata in any subsequent proceeding and, further, that

(ii) undisputedly the suit house is Khas Mahal property and the claim of purchase and transfer of the same by the plaintiffs without appropriate permission of the competent authority is outright a nullity and since the defendants are admittedly in possession of the suit house cannot be removed unless the persons seeking their removal have better title than of them.

7. The lower appellate Court has considered the first question in paragraph 9 of the impugned judgment and has held that the Courts in regard to the earlier proceeding have simply considered the matter for limited purpose and confined it to the question of substitution in place of original decree-holder for the purposes of continuance of Execution Case No. 33 of 1974. According to the lower appellate Court, none of the Courts has gone into the complete question of title and decided the same and as such the question of res judicata does not arise despite the scope of principle of res judicata was widened in the year 1976.

8. As regards the second question regarding the lack of permission of purchase of Khas Mahal property, the lower appellate Court has fully dealt with it in paragraph 12 of its judgment. Lower appellate Court having found