The subsequent suit was barred by res judicata as the issue on title was relevant in the dispute and the decision on that issue remained unchallenged.

1. The defendants in O.S. No. 444 of 1975 which is a suit for recovery of possession on the strength of title are the appellants. The suit was decreed by both the courts. The defendants' contention that the suit was barred by reason of res judicata was rejected by the lower appellate court. They had contended before that court that the plaintiff had earlier instituted O.S. No. 349 of 1973 against the present defendants for injunction in which a specific issue on title was raised by the court on the pleadings of the parties. That issue was found against the plaintiff. The court found that the plaintiff was not entitled to restrain the defendants from plucking coconuts from trees standing on the property in dispute. That decree became final.

2. The dispute relates to the boundary lying between the adjoining properties respectively owned and possessed by the plaintiff and the defendants. There is no dispute as regards the possession or ownership of either property except in regard to the narrow strip separating the two properties and on which stand four coconut trees. The defendants put up a fence enclosing the boundary and separating it from the property of the plaintiff.

3. One of the main contentions of the defendants before the lower appellate court was that the present suit was barred by resjudicata by reason of the decree in O.S. No. 349 of 1973. No such contention had, however, been taken in the trial court. The lower appellate court rejected the contention stating that the issue on title decided in the earlier suit for injunction was unnecessary for the final determination of that suit, for the only issue, according to the court, which wag necessary for consideration was as regards the rival claim of possession.

4. Counsel for the appellants Shri. Joseph Franklin submits that the lower appellate court misunderstood the scope and ambit of the rule of resjudicata as embodied in S.11 of the Code of Civil Procedure, 1908 and as enunciated by a long catena of decisions. Referring to Krishna Chendra v. Challa Ramanna, AIR. 1932 PC. 50, counsel submits that even if an issue does not arise from the pleadings of the parties, but was raised by the court and the parties went to trial of that issue willingly, the decision of the court, unless duly challenged, becomes final and therefore constitutes resjudicata. He refers to the decisions of the Supreme Court in Raj Lakshmi Dasi V. Banamali Sen, AIR. 1953 SC. 33, Vithal Yeshwant v. Shikandarkhan. AIR. 1963 SC. 385; Gangappa v. Rachawwa. AIR. 1971 SC. 442; and to the decisions in Kishori Lal v. Debi Prasad, AIR. 1950 Patna 50 (FB.) and Annamalai v. Lakshmanan, AIR. 1939 Mad. 433.

5. Shri. P. Ramakrishnan Nair appearing for the respondents, who are the legal representatives of the plaintiff, submits that the decision in Krishna Chendra v. Challa Ramanna, AIR. 1932 PC. 50 must be understood in the light of the subsequent decisions of the Supreme Court, and counsel relies on the very same decisions cited on the other side.

6. It has been stated in Krishna Chendra v. Challa Ramanna, AIR. 1932 P. C. 50 that even where a point has not been properly raised by the plaint, but both parties have without protest joined issue upon that point, the decision on the point operate as res judicata between the parties. The Judicial Committee observed:

"Now it is perfectly clear that the only real question raised by the above recited prayer is the question whether the plaintiff was entitled to have the rent in kind instead of money rent. But when the case got before the Temporary Subordinate Judge be framed issues which strayed far beyond that simple question and these issues were adopted by the District Judge before whom the case came to depend.... ... ... ... ...But as has already been shown, the District Judge fixed issues which strayed into other matters, and evidence was led upon these points as raised by issues S and 6; The District Judge, notwithstanding that be dismissed the suit, held that