Dave, J.:— This is a first appeal by the defendants against the judgment and decree of the Civil Judge, Udaipur District, dated the 25th of September, 1951.

2. A preliminary objection has been raised by the respondents learned advocate to the effect that the appeal is barred by res judicata and, therefore, it is prayed that it should be dismissed on that ground alone.

3. In order to appreciate the respondents contention, it seems necessary to state the relevant facts briefly. In the city of Udaipur in Mohalla Dhan Mandi, there is a Jain temple of Sumatinath belonging to the Agarwal Jain community which is represented in the present case by the appellants. On the back side of this temple, there is a school which is called Shri Parshwanath Digambar Jain Vidyalaya. In between the building of the said temple and the school i.e on the back and the two sides of the temple, other than the front side, there is vacant land and that is the subject of dispute between the parties. On the 16th of January, 1946, Shri Parshwanath Digamber Jain Vidyalay Society through its General Secretary, Shri Gulabchand son of Shivlal Taya brought a suit which has given rise to the present appeal. It was averred by the plaintiffs that the land, whose boundaries were given in the plaint, was in the ownership and possession of the plaintiff, that the defendants were trying to make illegal encroachment on its Chowk and Chabutra, that on the southern side near the temple the defendants had constructed a room for Pujari and were further going to construct some Tibaris, that on the western side adjoining the wall of the temple, the defendants had dug out the ground without the plaintiffs' permission, that on the northern side, the defendants had removed some stones from the Chowk and, therefore, it was prayed that the defendants should be directed, to remove the buildings which they had constructed, to fill up the pits which they had dug out to level the ground, and that they should be from making any encroachment on the plaintiffs' property in future. In the suit, as originally instituted, only seven persons were impleaded as defendants, but later on five more were added at their own request on 8th of March, 1946. On the 4th of May, 1947, Heeralal and Tolaram filed a counter representative suit on behalf of Samast Panch Jain Agarwal residents of Udaipur City against Shri Parshwanath Digamber Jain Vidyalaya Society through its General Secretary Gulab Chand. It was asserted by the plaintiffs in that case that the land all around the temple belonged to the plaintiffs, that some of that land was given away to the Sakal Digamber Jain Panchas by a Bhet Patra in Samvat year 1982, that the said document was void and illegal, that the defendants had constructed certain buildings, but the open land on the back and sides of the temple i.e on the western, northern and southern sides of the temple was still in the ownership and possession of the plaintiffs, that the defendants were trying to make encroachment on the said land by constructing some drains and, therefore, it was prayed that a declaratory decree be given to the effect that the land on three sides of the temple was in the possession of the plaintiffs. It was further prayed that the defendants be restrained by a permanent injunction from making encroachment on the disputed land, Thus, both the parties filed counter suits against each other. Both of them claimed ownership and possession of the disputed land and prayed that the other be restrained from making any encroachment. It appears that issues were framed in the second suit also, but later on, the proceedings therein, were stayed till the disposal of the first case. As mentioned above, the first case was decided in favour of Shri Parshwanath Digamber Jain Vidyalaya Society by the Civil Judge, Udaipur district on 25th September, 1951. The second suit No. 48 of 1952 was pending in the court of the Additional Civil Judge, Udaipur. It appears that because of the decision in the first case, an objection was raised by the defendants in the second case that the suit was barred by res judicata and therefore, on the 11th of March, 1953, an issue was framed in the following words—

“Whether this suit is barred by resjudicata?”

4. On the 25th of May 1953, this issue favour and the plaintiffs' suit was dismissed. No appeal has been filed against this Judgment in this Court. But it is on the basis of this judgment that the respondent’ learned advocate has urged that the appeal before us is barred by res judicata. It is contended that the main issues in both the cases were the same and since the appellants' suit was dismissed, they should have brought an appeal against that judgment. It has been argued that since the decree dated 25th of May, 1953, has not been appealed against, it has become final and this Court should rot, therefore, hear the appeal in the first case because if it comes to a contrary decision, there would be two inconsistent decrees Learned counsel for the appellants has urged in reply that the Additional Civil Judge ought to have kept the suit pending so long as the present appeal was not decided, that the appellants had a right to file an appeal against the decree in the second suit, but their failure to do so does not bar the hearing of the present appeal because the learned Additional Civil Judge has not really decided anything and he has dismissed the suit on the simple ground that it was barred by res judicata. We have given due consideration to the learned arguments advanced on both sides. Before coming to the discussion whether the present appeal is barred by res judicata, it seems proper to reproduce the first part of sec. 11 of the Civil Procedure Code which is based on the doctrine of res judicata. It runs as follows—

“No court shall try any suit or issue in which the matter 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.”

5. It is clear from the very opening words of this section that it debars the court from trying any suit or issue if the following conditions are fulfilled—

(1) The matter directly and substantially in issue in the case before the court has been directly and substantially in issue in the former suit.

(2) Both the suits are between the same parties or between parties under whom they or any of them claim.

(3) The parties to both the cases litigate under the same title.

(4) The previous suit or issue must be in a court competent to try the subsequent suit or the suit in which such issue has been subsequently raised.

(5) The previous case should have been heard and finally decided by such court.

6. So far as the first four conditions are concerned, no argument has been raised before us. The parties in both the cases were the same. They were litigating under the same title, the matter directly and substantially in issue in both the suits was the same and the Additional Civil Judge who decided the second suit was also competent to decide the first suit the contention between the parties, therefore, turns upon the fifth condition, namely whether the matter has been heard and finally decided by the second court. It may be pointed out that the second court has not at all applied its mind to the matter which was directly and substantially in issue before it. The matter which was directly and substantially in issue was whether the disputed land was in the ownership and possession of the one party or the other and which of them was really encroaching upon the rights of the other party. It is clear from the judgment of the Additional Civil Judge that he has not said a single word so far as the merits of the case are concerned. As pointed out above, one issue which was later on framed in that court on 11th of March, 1953 was whether the suit was barred by res judicata. The learned Judge applied his mind simply to this question and dismissed the suit on that basis. Thus, what he has really decided is the question whether he was competent to try the suit and decide the issues arising therein or not. We should not be understood to mean that his decision on the question of res judicata was correct. On the other hand, we are of opinion that he should not have gone into the matter when it was brought to his notice that an appeal against the judgment in the first suit was pending in this Court. He should have kept the case pending and waited for the decision of this Court. The trial of the suit was already stayed and be should not have hastened the decision so long as the same matter was sub-judice before the appellate court. It appears that the learned Judge was anxious to reduce the number of cases in his court and, therefore, he decided the case with the remark—

“that if the plaintiffs' in this case succeed as defendant appellants in the counter case in the appellate court, the dismissal of this suit is barred by res judicata will automatically be set aside.”

We do not consider it proper to make further comments on the decision because no appeal has been brought before this Court. But assuming that the decision given by the learned Judge on the issue of res judicata is correct it cannot be said that he has really heard and finally decided the real matter which was directly and substantially in issue in the suit before him. His decision only comes to saying that he would not try the suit or the issues involved because of the bar of res judicata.

7. It may be further observed that the Additional Civil Judge, while dismissing the suit, thought rightly or wrongly that his decision would be automatically set aside if the appellants in the appeal before us would be successful. In the case of Kumar Chandra Singh Dudhoria v. Midnopore Zamindari Co. Ltd. (1) a plea of res-judicata was based on the decree of a subordinate Judge in the third rent suit in which it was remarked by him that it would be—

“subject to the final decision of the Privy Council in T. Suit in No. 452 of 1922 of Rajshahi Sub-Judge's Court,” In those circumstances, it was observed by their Lordships that such a decree was not a final decree within the meaning of sec. 11 of the Civil Procedure Code. It was further observed that proper course in such a case was to adjourn the suit without making any decree until the final determination of the other suit. The observations made by their Lordships very fittingly apply to the circumstances of the present case and we have no hesitation in saying that the proper course for the learned Additional Civil Judge was to keep the suit pending and the decision which he has given subject to the decision of this Court is not a final decision as contemplated by sec. 11 of the Civil Procedure Code.

8. The view which we have expressed above finds some supports from the case of Narhari v. Shankar (2). In that case A had filed a suit against B and C for possession of ⅔rd share in a estate. The suit was decreed by the trial court. B and C had preferred separate appeals in respect of their respective ⅓rd share. The appeals were heard together and disposed of by the same judgment but separate decrees were prepared ‘A’ preferred an appeal from one of those decrees. The appeal from the other decree was filed after the period of limitation had expired. In those circumstances, it was held by the High Court of Hyderabad that ‘A’ should have filed separate appeals within the period of limitation and that the first appeal was barred by res judicata. This view was not approved by their Lordships of the Supreme Court and it was held that since there was only one suit and the appeals had been disposed of by one judgment, it was not necessary to file two separate appeals and the fact that one of the appeals was time-barred did not affect the maintainability of the other appeal. It is true that the facts of the case cited above are a bit different from the facts of the case before us inasmuch as there were two suits and two different judgments in the present case, but the principle involved in the two cases is the same as explained hereafter. In the above case, it was observed by their Lordships that—

“the estoppel is not created by the decree but it can only be created by the judgment.”

In the present case also what is very much stressed by learned counsel for the respondents is that the appellants' case having been dismissed, there is a decree in their favour and therefore, the present appeal is barred by res judicata. This argument is not correct because as observed by their Lordships, it is not the decree which creates estoppel but it is the judgment only which can be available for a successful plea of res judicata. The learned Civil Judge has given no judgment on the matters which were directly and substantially in issue in the case.

9. The doctrine of res judicata is based on two principles. Firstly, there should be an end to litigation and secondly, that no man should be vexed twice over the same cause. It cannot be said in the present case that the appellants are vexing the respondents for the second time over the same cause. In our opinion, there would be absolutely no justification for saying so. It was only in the case against which this appeal has been filed that the trial court has given its decision on the questions on which the parties are at issue. In the other case, it was contended in the trial court by the respondents before us that since there has been a decision in the first case, they should not be vexed over twice and it was on that ground that the appellants' suit was got dismissed by them. Now, they cannot with any justification turn round and argued in the appeal before us that the decision in the second case is res judicata. That would be arguing in a circle and it would end in a travesty of justice if it is allowed to stand. We cannot, therefore, allow the contention raised by learned counsel for the respondents.

10. The preliminary objection is dismissed. The case may be listed for hearing on merits of the appeal as soon as possible.