1. A preliminary objection is taken on behalf of the respondent to the effect that the question raised in the appeal has become res judicata by reason of the plaintiff not having appealed against the decree passed in another appeal before the lower Court in which the same point was decided between the same parties against the appellant.
2. The suit was one brought for the removal of certain constructions made by the defendant the next door neighbour of the plaintiff and for a mandatory injunction against the defendant. The Court of first instance gave the plaintiff a decree directing that a certain wall built by the defendant should be restored to its original height and dismissed the plaintiff's suit in respect of the other reliefs claimed by him. Against this decree both parties appealed. Both appeals were dealt with in one judgment. On the appeal by the defendant the lower Appellate Court held that owing to the delay in bringing the suit, the plaintiff was not now entitled to have the wall erected by the defendant pulled down but that the plaintiff could be adequately compensated for the loss caused to him by a money-decree. The lower Appellate Court fixed the amount as Rs. 380 odd. The decree passed upon the defendant's appeal set out that the decree of the Court of first instance was modified so far that instead of directing the defendant to lower his wall the defendant would be liable to pay Rs. 380 odd as compensation to the plaintiff. The decree passed upon the appeal preferred by the plaintiff is to the following effect: 'The appeal is dismissed. The decree of the Court below is modified.' The decree goes on to say that the parties shall bear their own costs in both Courts. The modification referred to in this decree can only be the modification set out in the decree passed in appeal by the defendant.
3. The plaintiff comes here in second appeal, his appeal being preferred against the decree passed by the Court below upon the defendant's appeal in that Court. The objection taken On behalf of the respondent is based upon the fact that the plaintiff has omitted to appeal against the decree passed upon his own appeal in the Court below. I am referred to the recently decided cases reported in Zaharia v. Debi 7 A.L.J. 861 : 7 Ind. Cas. 156 : 33 A. 51; Dakhni Din v. Syed Ali Asghar 7 A.L.J. 995 : 7 Ind. Cas. 909 both of which decisions, in my opinion, support this contention advanced by the learned Vakil for the respondent. On behalf of the appellant it is stated that the plaintiffs in the present appeal asserts only the decision passed upon the defendant's appeal in the Court below.
4. However it may be there remains the fact that upon the plaintiff's appeal in the Court below, that Court passed a decree which decree has not been appealed against and has become final. That decree was to all purposes to the same effect as the decree passed upon the defendant's appeal in the lower Court.
5. I, therefore, allow the preliminary objection and dismiss the appeal. For the same reasons the objections taken by the respondent will also fail.