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1. This is a Letters Patent appeal by the widow and son, who are legal representatives of the deceased Nilkanth who was original defendant No. 1, from the judgment and decree of Mr. Justice Deo in Second Appeal No. 851 of 1955. The material facts necessary for deciding this appeal are as follows:

2. A house belonging to the Deosthan of Prabhu. Dattatraya of Arvi was sold by two of the trustees of the Deosthan, namely, Nilkanth and Boliram (defendants 1 and 2) to the plaintiff Ramkrishna, for Rs. 2000/- on 12-3-1945. The plaintiff was put in possession of the house. On 23-2-1945 the two trustees purchased field No. 17/1 belonging to the plaintiff Ramkrishna, for Rs. 1800/- in 1947, Gangadhar, another trustee of the Deosthan, and one Chintaman, Pujari of the Deosthan, instituted Civil suit No. 8-A of 1947 for a declaration that the sale of the house of the Deosthan in favour of the plaintiff Ramkrishna was void, for possession of the house, and for damages. That suit was decreed, the sale deed of the house of Deosthan having been declared void and not binding on the Deosthan, In that suit the purchaser of the house contended that if the sale deed of the house of the Deosthan was found to be void, the Deosthan should be put to terms and should be ordered to pay Rs. 2000/-, but this plea was also rejected on the ground that the alienee had failed to prove that the Deosthan had received any benefit from the transaction dated 12-3-1945 and on the ground that the alienee had also failed to prove that field No. 17/1 had been purchased out of the consideration for the sale dated 12-3-1945, and the Deosthan obtained a decree for possession of the house unconditionally. Against that judgment in Civil Suit No. 8-A of 1947 there was no appeal. Two and a half years later, in 1951, Ramkrishna. the vendee of the house of the Deosthan, brought the present suit out of which this appeal arises. The Deosthan was impleaded as defendant No. 6. Plaintiffs two vendors, namely, the two trustees Nilkanth and Baliram, were impleaded as defendants 1 and 2. The following relicts were claimed in the plaint:

The suit was therefore for possession of the house of the Deosthan notwithstanding that a sale deed had been executed by two of the trustees in favour of Ramkrishna. In that suit the two trustees were impleaded as parties but no relief was claimed against them. The only relief claimed was as against Ramkrislma for possession of the house which was in his possession. Ramkrishna who was defendant No. 1 in that suit admitted in the written statement that the trust had been created by a registered will, that there was no specific permission or authority given bv the will to the trustees to alienate the trust property, but contended that there was also no prohibition against alienation. It was also contended that at the most the sale transaction was voidable one, that if the plaintiff Deosthan wanted the transaction to be set aside, possession should be restored to the Deosthan only on condition that it should refund to defendant No. 1 (the present plaintiff) the consideration of the sale deed, namely, Rs. 2000/- and some amount spent on repairs. It was also submitted in the written statement that the Deosthan had recieved Rs. 2000/- from the defendant No. 1 Ramkrishna and in consideration thereof the Deosthnn had put the defendant No. 1 in possession of the house in suit. It is therefore clear from this statement that while resisting the suit by the Deosthan for possession of the house, Ramkrishna had pleaded that if possession was to be awarded to the Deosthan, it should be ordered to refund a sum in excess ot Rs. 2000/- because the Deosthan had reaped the benefit of the receipt of the consideration of Rs. 2000/- for the sale.

"I consider that the plaintiff cannot be put to terms in the present case as it has not been specifically proved that the plaintiff has derived any benefit from out of the sum of Rs. 2000/- which the defendants 2 and 3 have received as consideration of sale in favour of the defendant No. 1 (Plaintiff in present suit) ..... Neither the plaintitf nor the trustees are liable to pay the amount spent by the defendant No. 1, before obtaining the decree for possession."

14. Consequently, Civil Suit No. 8-A of 1947 was decreed in favour of the Deosthan by awarding possession of the house. It is clear from the written statement that Ramkrishna claimed that the deity should be put to terms by being ordered to pay Rs. 2000/-. There was no prayer that the two trustees Nilkanth and Bahrain should he put to terms. The judgment in Civil Suit No. 8-A of 1947 would therefore be res judicata on the following points:

(1) Whether the sale deed of the house dated 12-3-45 was void or not, and (2) whether in view of the fact that the sale deed was void, the Deosthan should be put to terms or made to refund Rs. 2000/- to Ramkrishna.

It could not be res judicata on the question whether the trustees Nilkanth and Bahrain should be ordered to refund Rs. 2000/- to the vendee Ramkrishna, because that issue was not raised in the pleadings. The plaintiff Deosthan had claimed no relief as against the trustees. The controversy and the issues were between the Deosthan and the vendee Ramkrishna. The trustees were only made formal parties because the vendee Ramkrishna had taken a document from them in respect of the house belonging to the Deosthan. In that suit which was filed by the Deosthan there was no conflict of interests between Ramkrishna and the trustees who were all defendants. Moreover, none of them appealed against that judgment. Ramkrishna who alone had failed in that judgment could have appealed, and as he had not appealed, that judgment would be res judicata against him on the points referred to above. But Nilkanth and Baliram, the two trustees, had not failed in that litigation. There was no decree against them. In fact, no relief was claimed against them. It is true, that they have not gone in appeal, but the judgment did not contain any adverse finding as against them, and even if the judgment contained an adverse finding against them, as they had succeeded in the litigation it was not necessary for them to go in appeal and the judgment could not constitute res judicata, because if a party succeeds in a suit or appeal the judgment would not operate as res judicata even if there is an adverse finding upon some other matter. It is only when the suit or appeal is decreed against a party that the party can go in appeal and challenge the decree. In Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy ILR 48 Cal. 460 : AIR 1922 PC 241 their Lordships observed as follows: