1. The following question has come up before us on a reference by a learned single Judge:
'Whether the appeal is barred by Section 11, Civil P. C., or by the general principles of res judicata as the appeals preferred against the decisions in suits Nos. 77 and 91 of 1951 were rejected and dismissed by this Court and those decisions have become final and binding between the parties.'
2. The facts of the case have been set out in detail in the referring order, and it is unnecessary therefore to repeat them, except in so far as it is relevant for answering the question posed above.
3. Ch. Bhagwan Sahai, the appellant in the aforesaid appeals, brought a suit No. 37 of 1950, against Smt. Daryao Kuer, the first respondent in these appeals, for a declaration that he and his son Ch. Shiv Dan, the second respondent, were the owners of the properties in suit, and for possession in the alternative. According to Ch. Bhagwan Sahai the recorded owner of these properties was his uncle Sri Harnam Singh. Sri Harnam Singh and his adopted son Ram Kishen used to live jointly with Ch. Bhagwan Sahai. Hence after the death of Sri Harnam Singh and his son, Ch. Bhagwan Sahai, and his son, became the owners of the entire joint family property by survivorship though the names of the widows of Sri Harnam Singh and Sri Ram Kishen were got entered in the revenue papers simply for their consolation and they had no right or title to any part of those properties. The plaint contained some other allegation also, but for the purposes of the present reference it is not necessary to mention them. On these, and the unmentioned allegations, Ch. Bhagwan Sahai prayed for the reliefs stated above.
Shortly afterwards Ch. Bhagwan Sahai filed another Suit No. 42 of 1950, against Smt. Daryao Kuer and one other person, claiming the price of the crop which stood on some Sir and Khudkasht plots in villages Pirangarh and Kasimabad, on the allegations that Smt. Daryao Kuer had cut and misappropriated the Kharif crop standing on those plots in 1356F without having any right title or interest in the same. Smt. Daryao Kuer contested both the suits. Her defence inter alia, was that there had been a complete partition in the family, as a result of which Sri Harnam Singh and after him, adopted son, Ram Kishen, became the owners of their separated shares. After the death of Ram Kishen the defendant inherited the said property as his widow.
4. During the pendency of the aforesaid suits Smt. Daryao Kuer also instituted suits Nos. 77 and 91 of 1950, against Ch. Bhagwan Sahai, and his son Ch. Siv Dan Singh. The former suit was for the recovery of the price of her share of the crops grown on some Sir and Khudkasht plots in village Kasimabad in Rabi 1356F, which had been cut and misappropriated by the defendants, while the latter suit was for the same relief in respect of her share of the crops grown on some Sir and Khudkasht plots in village Kasimabad in Rabi 1353F, which had been cut and misappropriated by the defendants. According to Smt. Daryao Kuer, the plots in question belonged to the parties jointly, and the crops in suit were jointly sown by them, and hence she was entitled to halt the price of the said crops. In suit No. 77 of 1950, she also claimed a relief of permanent injunction for restraining Ch. Bhagwan Sahai and Ch. Shiv Dan Singh from letting out the said Sir and Khudkasht plots without her consent.
Smt. Daryao Kuer's suits were filed in the Court of the Munsif, while those of Ch. Bhagwan Sahai were filed in the Court of the Civil Judge. Subsequently by an order of the District Judge the two suits of Smt Daryao Kuer were transferred to the Court of the Civil Judge, where they, and the two suits of Sri Bhagwan Sahai, were consolidated and tried together with the consent of the parties. All these suits were also disposed of by a common judgment, but separate decrees were prepared in each suit. In all these suits, five issues were common, while in each of them there were certain separate issues as well. One of the common issues related to the respective rights of the parties to the properties in suit. The finding of the learned Civil Judge on this issue was that Smt. Daryao Kuer was entitled to the properties claimed by Ch. Bhagwan Sahai in his suit No. 37 of 1950. The learned Civil Judge, therefore, dismissed that suit. In view of his finding on the question of title in suit No. 37 of 1950, he decreed suit No. 91 of 1950 in its entirety while Ch. Bhagwan Sahai's Suit No. 42 of 1950 and Smt. Daryao Kuer's Suit No. 77 of 1950 were decreed to the extent of half only and Smt. Daryao Kuer was also granted permanent injunction restraining Ch. Bhagwan Sahai from letting out the suit plots without her consent.
Aggrieved by that decision, Ch. Bhagwan Sahai preferred First Appeals Nos. 365 and 366 of 1961 in this Court against the judgment and decrees in Suits Nos. 37 and 42 of 1950 respectively and Civil Appeal No. 452 of 1951 and Civil Appeal No. 453 of 1951 in the Court of the District Judge against the judgment and decrees in Suits Nos. 77 and 91 of 1950 respectively. By an order of this Court, the appeals pending in the Court of the District Judge were withdrawn from that Court to this Court. Appeal No. 453 of 1951 was rejected by this Court on the 9th of October 1953 as being time barred, while Appeal No. 452 of 1951 (later renumbered as First Appeal No. 434 of 1953) was dismissed by this Court on the 7th of October 1955 on account of the failure of Ch. Bhagwan Sahai to apply for the translation and printing of the record as required by the Rules of this Court.
5. After the dismissal of Appeals Nos. 452 of 1951 and 434 of 1953, an application was moved on behalf of Smt. Daryao Kuer, praying that First Appeals Nos. 365 and 366 of 1951 be dismissed as the main question involved therein viz.: the title of Smt. Daryao Kuer to the suit properties had become final, on account of the dismissal of the appeals arising out of Suits Nos. 77 and 91 of 1950. At the hearing of the appeal, two Division Bench decisions of this Court, in Sri Ram v. Sripat Singh : AIR1957All106 and Tara alias Rati Ram v. Ram Saran Das, L. P. A. No. 61 of 1951, D/-13-10-1961 (All.) were cited before the learned Single Judge, who finding a conflict of view therein, referred the question mentioned above, for the consideration of a larger Bench. It is in these circumstances, that this question has come up before us for our decision.
6. In order to answer this question, it is necessary at the very outset, to refer to the relevant provisions of Section 11, Civil P. C. Section 11, in so far as it is material for our purposes, reads thus:
'No Court shall try any suit or issue in which the matter directly and substantially In issue has been 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.'
'Explanation 1. -- The expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.'
7. A plain reading of the aforesaid section shows that the essential conditions for the application of the doctrine of res judicata are: (1) that the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue either actually or constructively in the former suit, (2) that the former suit must have been a suit between the same parties or between parties under whom they or any of them claim, (3) that the parties must have litigated under the same title in the former suit, (4) that the Court which decided the former suit must have been a Court competent to try the subsequent suit, and (5) that the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided in the first suit. The first explanation then makes it clear that the expression 'former suit' denotes a suit which has been decided prior to the suit in question, whether or not it was instituted prior thereto.
'The doctrine of res judicata,' to quote a passage from Srinivas R. Acharya v. Purushottam Chaturbhuj : AIR1953Bom393 , is not merely a technical 'doctrine. It is directly founded on the general rule that 'a man shall not be twice vexed for the same cause.' It is a fundamental doctrine based on the principle of conclusiveness of judgments and finality of litigation.' (Also see in this connection the observations in Shankar Sahai v. Bhagwat Sahai AIR 1946 Oudh 33 (FB)). We have, therefore, to see whether the aforesaid five conditions essential for the application of the doctrine of res judicata are present in the instant case or not
8. Now from the facts summarised above, it is clear that the two matters which were directly and substantially in issue in ail the four suits were (1) whether Sri Harnam Singh and adopted son Sri Ram Kishan died in a state of jointness with Ch. Bhagwan Sahai and his son Ch. Shiv Dan? and (2) whether the property in suit was the joint family property of Ch. Bhagwan Sahai and Ram Kishan
9. The decision of the learned Civil Judge on both those issues was against Ch. Bhagwan Sahai and that decision, unless varied in appeal, was final and binding on the parties concerned. Ch. Bhagwan Sahai did tile appeals against the decrees passed in all the four suits but, unfortunately for him, he allowed two of the appeals to be dismissed. The result of these dismissals is that the two main issues, concerning the jointness of the parties and the nature of the property in question in Suits Nos. 77 and 91 of 1950, became final so far as those suits are concerned. In other words, the findings on those issues became final and binding in all subsequent suits or appeals in which the parties were claiming under the same title. In the face of the final decisions in Suits Nos. 77 and 91 of 1950, particularly on the issue of jointness it is not possible for this Court in Appeals Nos. 365 and 366 of 1951 to hold otherwise. Since these appeals cannot result in decrees at variance with the decrees passed in Suits Nos. 77 and 91 of 1950, these appeals must be held to be barred by res judicata.
10. The view expressed by us above finds support from the Full Bench decision in Zaharia v. Debia, ILR 33 All 51 (FB), the facts of which are on all fours with those of the present case. In that case two persons, Zaharia and Manphul, each brought a suit for pre-emption in respect of the same sale each claiming a right of preemption preferential to that of the other. Each plaintiff was made a party defendant to the suit brought by the other. The judgment was delivered in the suit of Manphul and a copy thereof was placed on the record, of the other suit, but a separate decree was framed in each suit. The suit of Manphul was decreed and that of Zaharia dismissed. Zaharia appealed from the decree in his suit but did not file an appeal from the decree in Manphul's suit which became final before Zaharia's appeal was decided. On these facts, a Full Bench of this Court held that the doctrine of res judicata applied, and the appeal of Zaharia was barred. The principle on which this decision is based was stated by Sir John Stanley, C. J. as follows:
'A decree, unless it be a decree which is a nullity by reason of, for example, fraud, cannot be superseded except it be upon appeal in the regular course. This being so, if we acceded to the argument addressed to us we should have two inconsistent decrees on the files of the Court. This would be a most serious anomaly, and in execution proceedings would cause a complete impasse.'
The aforesaid view has been reiterated in Mohammad Mohtashim v. Joti Prasad : AIR1941All277 and L P. A. No. 61 of 1951, D/- 13-10-1961 (All) the latter being one of the cases mentioned by the learned single Judge in his referring order. There is thus abundant authority for the proposition that where there are two or more suits involving common issues, then if the findings on those issues in one suit become final then if the other essentials of Section 11 are present they serve to operate as res judicata in a subsequent suit or appeal.
11. On behalf of the appellant, reliance was placed upon another Full Bench decision of this Court In Ghansham Singh v. Bhola Singh, ILR 45 All 506: (AIR 1923 All 490 (2)(FB). We have carefully perused this judgment, but find that it is clearly distinguishable on facts from the present case, though it does contain some observations which favour the contention of the learned counsel for the appellant. In that case one Ghansham Singh brought a suit for sale on a mortgage. The trial court decreed the suit but did not award costs to the plaintiff. The plaintiff preferred an appeal to the lower appellate Court against the decree so far as it disallowed the costs. The defendant also appealed as to the amount of interest allowed to the plaintiff. Both the appeals were heard together and decided by one judgment, and both the appeals were allowed; but two separate decrees were passed though each was a counter part of the other. The plaintiff appealed to the High Court against the decree passed in the defendant's appeal in the lower appellate court, but did not appeal against the decree which was in his favour in his own appeal. It was in these circumstances that Mears, C. J. and Piggott, Walsh and Ryves, JJ. held as follows:
'Where it appears to an appellate court that there are two decrees arising out of two suits heard together or raising the same question between the same parties, or arising out of two appeals to a subordinate appellate court, and only one of such decrees is brought before it in appeal, and there is nothing prejudicial to the appellant in the decree from which no appeal has been brought which is not raised and cannot be set right if the appeal which he has brought succeeds, the right of appeal is not barred either by the rule of res judicata or at all, by reason of his failure to appeal from the decree which does not prejudice him. It would be indeed wrong for an appellant to appeal against a decree which did not prejudice him and to which he did not object, or to appeal against two duplicate decrees where an appeal against one of them would be sufficient, and he is certainly under no obligation to do so. The ultimate rights of the parties must be adjusted and regulated according to the final decision of the last court of appeal.'
12. In this case, the decision in Zaharia, ILR 33 All 51 (FB) was approved so far at least as the facts of that and cognate cases were concerned. The decision in Zaharia ILR 33 All 51 (FB) must consequently be held to be binding in cases, which are similar on facts to that case. The passage on which reliance was placed by the learned counsel for the appellant has been quoted above. We agree that the observations made therein concerning two suits and two decrees favour the contention advanced on behalf of the appellant, but as In that appeal there was only one suit, the said observations are clearly in the nature of obiter. Further in that appeal the appeal of the plaintiff against the decree refusing him costs having been allowed by the lower appellate court, he had no occasion to appeal against that decision and his omission to appeal from that decision could not, therefore, bar his own appeal. As observed by Banerji, J.
'No issue was decided in the plaintiff's appeal which was adverse to him and no issue which arose and was decided in that appeal, arose in the appeal before the High Court. There was thus no bar to the hearing of his appeal.' Further that, 'as the suit was a mortgage suit and only one decree could be passed in it, the decree drawn up by the court below was the decree which was the result of the decision in the two appeals before it. We must look to the substance and not to mere form.'
Earlier that learned Judge had observed that he fully agreed with the decision in Zaharia, ILR 33 All 51 (FB), and could find nothing in the judgment of Stanley C. J. who delivered the main judgment in that case, from which one could dissent. In our opinion, therefore, the decision in Ghanshyam Singh, ILR 45 All 506: (AIR 1923 All 490(2) (FB) is of no avail to the appellant.
13. This brings us to the consideration of the decision In : AIR1957All106 , which is the other case mentioned by the learned single Judge in his referring order. In this case, Agarwala, J. who delivered the judgment said:
'We do not think that this preliminary objection has any force. When two suits have been consolidated and tried together and disposed of by one judgment, a party may file an appeal from the judgment and decree in one suit and if he does not file another appeal from the decree in the other suit it cannot be said that his appeal is not either maintainable or that it is barred by res Judicata. This is now the settled law, vide Narhari v. Shankar : 1SCR754 .'
14. As the decision in this case rests entirely upon : 1SCR754 , it is necessary to examine that case in order to see whether and if so to what extent, it bears out the aforesaid observation. In Narhari's case : 1SCR754 , the facts were that:
'From the decree of trial court In favour of the plaintiff two separate appeals were taken by two sets of the defendants. The appellate Court allowed both the the appeals and dismissed the plaintiff's suit by one judgment and ordered a copy of the judgment to be placed on the file of the other connected appeal. Two decrees were prepared. The plaintiffs preferred two appeals. One of the appeals was time barred and on the principle of 'res judicata' the High Court dismissed both the appeals.' On these facts it was held that: 'Where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up. As has been observed by Tek Chand J. in his learned judgment in Mt. Lachhmi v. Mt. Bhulli, AIR 1927 Lah 289, mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment. The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire, suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decisions in substance are one.'
15. On behalf of the appellant reliance was placed on the sentence. 'Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit,' and it was argued that as the decisions in the instant case were given by one and the same judgment, none of them could be regarded as a decision in a former suit, so as to operate as res judicata. We agree -- as we are bound to do -- that when a decision is given simultaneously in two suits, it cannot be a decision in a former suit, but the moment the decree passed on the basis of that judgment in one suit becomes final either because no appeal is preferred against it, or the appeal filed against It is dismissed, then at that point of time in our opinion there does come into existence a judgment which must be regarded as final between the parties so as to operate as res judicata in subsequent suits provided, of course, the other requisites of Section 11 are also present. We have perused the judgment of Narhari : 1SCR754 very carefully but find nothing therein which can be held to lay down anything to the contrary. Consequently the reasoning based upon the simultaneity of judgments in two suits does not rule out the applicability of the principle of res Judicata, provided the necessary conditions mentioned above are present.
16. Apart, however, front the above, the basic difference between Narhari's case : 1SCR754 and that of Sri Ram : AIR1957All106 lies in the fact that in the former there was only one suit, while in the latter there were two suits. When there is only one suit, Narhari : 1SCR754 lays down:
'The question of res judicata does not arise at all and in the present case both the decisions are in the same case and based on the same judgment and the matter concerns the entire judgment. As such there is no application of the principle of res judicata.'
Earlier in the same case it was held that:
'The question of res judicata arises only when there are two suits.'
All these observations show that the decision in Sri Ram : AIR1957All106 which professes to rest on the decision in Narhari's case : 1SCR754 , really receives no support from it.
17. The decision in Narhari : 1SCR754 was explained by the Supreme Court in Badri Narayan Singh v. Kamdeo Prasad Singh : 3SCR760 . In that case the Supreme Court after quoting the following observation from Narhari : 1SCR754
'It is now well settled that where there has been one trial, one finding and one decision, there need not be two appeals even though two decrees may have been drawn up.'
Observed that that did not mean
'That whenever there be more than one appeal arising out of one suit only one appeal is competent against that order in any of those appeals irrespective of the fact whether the issues for decision in those appeals were all common or some were common and others raised different points for determination. The existence of one finding and the decision mentioned in this observation simply contemplates the presence of common points in all the appeals and the absence of any different point in those appeals and consequently of one decision on those common points in all the appeals.'
18. This explanation clearly shows that the necessity of filing two appeals in the circumstances mentioned in the aforesaid quotation from Narhari's case : 1SCR754 is dispensed with only when all the issues falling for determination in the appeal filed and that not filed are the same, but that if there are separate issues also, then appeals have to be filed against all the decrees. The fact that Supreme Court has thought it necessary to clarify the position in this regard clearly appears to us to show that the appeals thus filed must be pursued to the finish if the bar of res judicata is to be avoided.
19. The other observation in Narhari : 1SCR754 which the Supreme Court considered it necessary to explain is as follows:--
'The question of res judicata arises only when there are two suits. Even when there are two suits it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case both the decrees are in the same judgment and the matter decided concerns the entire suit. As such there is no question of the application of the principle of res judicata.'
20. With regard to this observation the Supreme Court held that they 'do not apply to cases which are governed by the general principles of res judicata which rest on the principle that a judgment is conclusive regarding the points decided between the same parties and that the parties should not be vexed twice over for the same cause.'
21. The aforesaid observation of the Supreme Court In our opinion, explains the observations made in Narhari's case : 1SCR754 on which the judgment in Sri Ram : AIR1957All106 , professedly rests. This observation clearly shows that the decision in Sri Ram : AIR1957All106 can no longer be held to lay down the correct law.
22. This brings us to the consideration of the Full Bench decision of the Oudh Chief Court in Shankar Sahai's case, AIR 1946 Oudh 33 (FB). In this case also two suits were filed -- the plaintiff of one being, the defendant of the other. Both the suits involved common issues, and were disposed of by one judgment but two decrees were prepared. The unsuccessful plaintiff preferred appeal against one decree only. On these facts the Full Bench of the Oudh Chief Court held that the matter decided in the suit against the decree of which no appeal was preferred did not become res judicata and it could be reopened in appeal against the former though that rule was subject to exceptions, depending on the circumstances of each case. The principle on which this judgment rests is laid down in the following terms:
'The bar which the law imposes on subsequent litigation is created by the existence of a previous judgment whereby the matter has once already been fully canvassed and fairly and finally determined between the parties by a competent Court of law. The application of this rule should be influenced by no technical considerations of form but by matters of substance within the limits allowed by law.'
The Full Bench looked at this matter from two angles. Firstly where the appeal has not been preferred against the second decree, and secondly where it was preferred but it was held to be incompetent. In either case, the Full Bench held that the matter stood on the same footing, because the grounds upon which the judgment was based had not been finally determined to be sound. The incompetency of the second appeal did not amount to a finding that the judgment thereof was accepted to be correct. We are however unable, with the greatest respect, to agree with the aforesaid observation, for it seems to us that as soon as the appeals arising out of suits Nos. 77 and 91 of 1950 particularly the former were dismissed by this Court whatever the reason for the dismissal was the judgment of the trial Court on the common issues became final so far as those suits were concerned, and having become final, they cannot be subsequently reagitated in an appeal between the same parties, particularly when the other essential conditions of Section 11 are also present.
23. For the reasons stated above, our answer to the question referred to us is that F. A. S. Nos. 365 and 366 of 1951 are barred under Section 11, Civil P. C., to the extent of the decision of the five issues, which were common in the four connected suits. The appeal will now be returned to the learned single Judge with our opinion.