Piggot and Walsh, JJ.
1. In the suit out of which this appeal-arises the plaintiff, who is the appellant in this Court, claimed possession of a half share in each of two groves, together with damages. The groves are situated in different villages and may be described by the serial numbers in the village papers under which they are referred to in the judgment of the courts below. One grove was numbered 123 and the other was numbered 2. The court of first instance in substance dismissed the plaintiff's claim in respect of grove No. 2, but it decreed his claim for grove No. 123. [There was an appeal by the plaintiff against the decree of the court of first instance, in so far as that decree dismissed his claim for grove No. 2. There was also an appeal by the defendants against the same decree in so far as it allowed the plaintiff's claim for grove No. 123. The two appeals were heard together, and a single judgment was written, by which the questions raised in both the appeals were disposed of Different decrees were passed. On the plaintiff's appeal the order was that this appeal be dismissed, so that the decision of the court of first instance, in so far as it was called in question by the plaintiff, was affirmed. On the defendants appeal there was an order of remand arising out of certain pleadings and findings to be referred to presently. The appeal now before us is against the decision of the lower appellate court on the appeal filed by the defendants against the decree of the court of first instance. When this appeal came up for hearing before a single Judge of this Court two preliminary objections were raised. One of these was well-founded so far as it went, that is to say, the defendants respondents correctly urged that this, appeal was not really a second appeal, but a first appeal from an order of remand and should have been filed as such. This objection is of a technical nature and it has been disposed of by the referring of the appeal itself to a Bench of two Judges. We have jurisdiction to hear this appeal under the rules of this Court and a mere misdescription of the appeal as 'Second Appeal No so and so' instead of 'first appeal from order', does not affect the merits of the case or the jurisdiction of this Court. The appellant will not, in any event, be entitled to recover costs in excess of what he would have had to pay on a first appeal from order, but that matter can be considered when the decree of this Court comes to be prepared. The other objection was that the plaintiff was not entitled to appeal against this order of remand, or against any other order or decree which the lower appellate court might have seen fit to pass on the defendants appeal unless he also appealed against the decision dismissing his own appeal about grove No. 2, Reliance is placed on a large number of authorities of this Court, out of which it is quite sufficient to refer to the decision on Ram Lal v. Chhab Nath (1890) I.L.R., 12 All., 578, which is the foundation of the subsequent case-law on the subject. The case now before us is clearly distinguishable from any of these. In the appeal brought by the plaintiff against the decision of the court of first instance no question was raised and none could be decided, as to the rights of the parties in respect of grove No. 123. The court simply determined the question of the respective rights of the parties to grove No. 2. Its decision on this point was final; it proceeded upon findings of fact and no second appeal could have been brought against it with the slightest prospect of success. The plaintiff was bound to acquiesce in the decision against him so far as grove No. 2 was concerned, but there was nothing in the decree by which his appeal to the court below stood dismissed which in anyway affected or purported to affect his rights in respect of grove No. 123. It is not even as if it could be contended that the plaintiff was injuriously affected by the dismissal of his appeal, because that dismissal left the decision of the court of first instance intact The plaintiff had a decision in his favour about grove No. 123 and the order passed upon his appeal left that decision where it was. That decision has only been disturbed by the order of remand passed upon the appeal of the defendants in the court below, and against that order the present appeal lies. It is clearly not barred either by the words of Section 11 of the Code of Civil Procedure, or by any conceivable principle of res judicata. We have now to consider the main point raised by the appeal itself, and for this purpose it is necessary to set out certain additional facts. In the year 1914 this same plaintiff had brought against these same defendant a suit in which he claimed damages amounting to Rs. 30 as his share of the price of two trees which the defendants had cut down in grove No. 123 on the ground that the defendants had appropriated the timber entirely to themselves in derogation of the plaintiff's rights as owner of a moiety share in the grove. This suit was a suit of the nature cognizable by a Court of Small Causes; but it was not instituted in such a court. Presumably there was no Court of Small Causes in existence at Jaunpur, and this suit for damages was instituted in the court of the Additional Munsif and was tried by him as a regular suit. In reply to the plaintiff's claim the defendants denied this title to a moiety share, or to any other share in grove No. 123, There was an issue on this point and that issue was decided in favour of the plaintiff. After also determining the further issue raised as to the amount of damages, the Munsif proceeded to give the plaintiff in that suit a decree for Rs. 20. Now in the present litigation the plaintiff once more sets up his title to the moiety share in grove No. 123. The suit has actually been brought in the very same court which tried the suit of 1914, and the first issue for disposal is precisely the same issue as was tried out in the former suit, namely, the validity or otherwise of the plaintiffs claim to a moiety share in grove No. 123. The learned Additional Munsif held that he had himself once already decided this issue in a previous suit between the same parties, that decision operated as res judicata a and the question could not be tried over again. This finding has been reversed by the learned Subordinate Judge on appeal. Holding that the question of title in respect of grove No. 123 was not res judicata in the plaintiffs favour by reason of the suit of 1914, that court has remanded the case, so far as it concerned the plaintiff's claim to grove No. 123, for trial on the merits. The appeal being against this order of remand, what we have to determine is whether the decision in the suit of 1914 was or was nut res judicata in the present litigation. On the wording of Section 11 of the Code of Civil Procedure, the case seems a clear one. The suit was between the same parties litigating under the same title. The same question was directly and substantially in issue in both the suits, and in the suit of 1914 it was decided in the plaintiff's favour by a court competent to try the subsequent suit now under consideration by us in this appeal. As a matter of fact both the suits, as we have already pointed out, were brought in one and the same court, that is to say, the court of the Additional Munsif of Jaunpur. The former was of a nature triable by a Court of Small Causes and the present suit is not. There is therefore this distinction, that in the suit of 1914 no second appeal would lie, whereas in the present suit a second appeal will lie, subject to the appropriate provisions of the law. The second explanation to Section 11 of the Code of Civil Procedure has been inserted in the present Act (No. V of 1908) and it expressly provides that, for the purposes of this section, the competence of a court (that is to say its competence to try any subsequent suit) shall be determined irrespective of any provisions as to a right of appeal from the decision of such court. This explanation would seem to have been expressly designed to set at rest the controversy sought to be raised on behalf of the present respondents. This view has been taken by a learned Judge of this Court in the only reported case we can find in which the question has been expressly considered and decided since the passing of Act V of 1908, namely, the case of Musaddi Lal v. Jwala Prasad (1912) 10 A.L.J. 106. We have been referred to a number of older rulings of this Court, one of which is discussed by Mr. Justice Chamier in Musaddi Lal v. Jwala Prasad (1912) 10 A.L.J. 106. All those decisions were passed before the second explanation to what is now Section 11 of the Code of Civil Procedure had been enacted. It is quite true that, in order to apply the rule of res judicata at all, it must be found that the question of title was directly and substantially in issue in the suit of 1914. It has been contended before us that in some of the older decisions, as for instance in Inayat Khan v. Rahmat Bibi (1879) I.L.R., 2 All., 97 and in Chet Ram v. Ganga Weekly Notes, 1886, p. 44, it has been taken for granted that the decision of any court in a suit of a Small Cause Court nature about a question of title should be regarded as merely incidental. In view of the change in the law effected by the passing of Act No. V of 1908, it seems unnecessary to discuss these older decisions. We find ourselves in entire agreement with the view taken by Mr. Justice Chamier in Musaddi Lal v. Jwala Prasad (1913) 10 A.L.J., 106, which was a case in all essential matters on all fours with the present one. It is worth noting that we have been referred to one other case of this Court decided since the passing of the present Code of Civil Procedure, namely, the case of Dulare Lal v. Hazari Lal (1914) 12 A.L.J., 853. That case is distinguishable from the present in one essential point. The suit for damages, the decision in which it was sought to plead as res judicata in a subsequent suit for the establishment of title, had been brought an a Court of Small Causes, and subsequently transferred to the court of a Munsif. It was pointed out that, under the provisions of the Provincial Small Cause Courts Act itself, a suit would not change its nature when it was transferred from a Court of Small Causes to that of a Munsif, but that it would be tried by the Munsif only as a Court of Small Causes. This is the reason given by the learned Judge of this Court for holding, in the appeal before him, that the decision in the suit for damages would not operate as res judicata in the subsequent suit for establishment of title. In that case the suit for damages was instituted in, and was, in the eye of the law, tried by, a Court of Small Causes, that is to say, by a court which, independently altogether of any provisions as to a right of appeal, would not be a court competent to try a subsequent suit for title. We are of opinion therefore that the decision of the lower appellate court on this question of res judicata was wrong and must be reversed. On this appeal, therefore, we set aside the order of remand which was passed on the appeal of the defendants in the court below, and in lieu thereof we dismiss the appeal of the defendants to that court. The plaintiff will be entitled to his costs in this and in the lower appellate court, subject only to this qualification that he will not be entitled to recover as costs in this Court? anything more than he would have paid on a first appeal from order. It may be pointed out that the result of the order which we now pass is that the decree of the court of first instance is resorted in its entirety. There is no possible question of an appellate decision resulting in the existence of two inconsistent decrees on one and the same litigation each of them apparently capable of independent execution. We mention this fact as further illustrating our decision upon the preliminary objection.