1. The decree of the Court below being in favour of the appellant, and she seeking no alteration of it, the present appeal must be dismissed. Mr. Ghanasham, for the appellant urges that, though the decision is in his client's favour, one of the grounds on which it is based has been decided unfavourably to the appellant's title and may thus, as res judicata, greatly prejudice her in a future suit between her and the respondent. This fear, though there are some decisions and dicta which support it, does not appear to be well grounded. The judgment is not, and cannot really be based on a ground unfavourable to the successful party, though an opinion unfavourable to him may be expressed on some incidental point. According to the English law, 'the attribute of being conclusive evidence of the facts.stated therein, and properly tending thereto, seems to have been thought to belong to every adjudication emanating from a competent Court'--Crepps v. Durden 1 S L.C. (1876) 716; nee too Ev. Poth. 354. It cannot be said in such a case as that of Balak Tewari v. Kausil Misr I.L.B. 4 All- 491 that a finding that the fruit trees belonged to the plaintiff was one 'properly tending to' the decision against the plaintiff on a claim for damages for taking the fruit. From a judgment against a plaintiff no adjudication in his favour can properly be derived, as res judicata. It is not, and cannot be, an essential element of the jural relation on which an adverse decree rests, and no appeal lies against a merely incidental decision by one who is not in any way prejudiced by the concluding decision to which the partial ones are but subsidiary. But 'everything that should have the authority of res judicata is, and ought to be, subject to appeal, and reciprocally an appeal is not admissible on any point not having the authority of res judicata '--Sav. Syst., Section 293. There are cases, no doubt, in which the plaintiff may be regarded as seeking both a declaratory decree as to his title and a particular relief for a specified infringement of his right. In such oases it is for the plaintiff to make the distinction clear, and, if the law allows it, to obtain the declaratory decree to, which, ho is entitled. To deduce it from an incidental statement in a judgment for the defendant not admitting of an appeal by him, because there is no relief awarded to the plaintiff, seems opposed to sound principle as well as to high authority--see per Knight Bruce, V.C., in Barrs v. Jackson 1 Y. & O. (Ch. C) 585. See also per Lord Selborne in Reg. v. Hutchings L.R. 6 Q.B.D. 304. In the case of Jania Gaba v. Hulia Waru Printed Judgments for 1873 p. 170 it was said that an incidental finding of: a District Court on a question of title in a case not admitting of further appeal could not be res'-judicata as to that point in a future suit.
2. The decision could not be appealed against, and, therefore, on the incidental question was not final. The same principle applies where an appeal is excluded by the decree: a point is not finally decided-against any party who is not allowed the opportunity of questioning the decision, with the exception of the particular points, as in small causes, to the judgment on which a special finality is given by Statute.
3. The appeal is dismissed with costs.