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Peary Lal and anr. Vs. Jado Rai and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All15; 76Ind.Cas.618
AppellantPeary Lal and anr.
RespondentJado Rai and anr.
Cases ReferredZaharia v. Debia
Excerpt:
civil procedure code (act v of 1908), section 11 - companion suits--decree favourable in one suit--appeal against decree in other suit--issue decided adversely in both suits--res judicata. - .....suit dismissed the claim brought, by jado rai and others in so far as it affected this plot of land. musammat radha had no reason for appealing against this decree so far as it concerned this parcel of land. she submitted to the decision in the matter of the window, but with this we are not concerned. in suit no. 423 musammat radha appealed, contending once more that the land in question was the joint property of the two parties. on this appeal there was a finding in her favour by the lower appellate court and her suit was decreed. thereupon jado rai appealed to this court and a learned judge of this court has set aside the decree of the lower appelate court and restored that of the court of first instance, upon a finding of res judicata. the point taken is that musammat radha, in.....
Judgment:

1. In order to understand the point liaised by this appeal it is necessary to state the facts, out of which this appeal arises, in some detail. There were two separate suits tried together in the Court of a Munsif. In the suit registered as No. 423 of 1918 Musammat Radha and others sued Jado Rai and others, claiming an injunction rest aining the defendants from building upon the plot of land in question, which is situated between the bouses of the parties. The suit was brought upon the plea that the land in question belonged to the parties jointly. The substantia defence raised was that it was the sole property of the defendants Jado Rai and others. In the companion suit, registered as No. 462 of 1918, Jado Rai and others sought certain reliefs against Musammat Radha and ethers. One of these reliefs had to do with a window recently opened by the said defendants in their own house. The questions raised regarding this window have no bearing on the matter now before us, and we need not further refer to those questions. There was, however, a further relief sought, namely, an injunction restraining Musammat Radha and others from flowing water over the same parcel of land, the title to which was in controversy in the other suit. Here, again, the relief was claimed on the allegation that Jado Rai and others were sole owners of the Said parcel of land. The defence on this point was twofold. Musammat Radha and her co-defendants pleaded, firstly, the joint ownership in respect of the land which they had set up in the companion suit; but as a further line of defence they also pleaded that, in any event, they had a right of easement in respect of this land, even supposing Jado Rai and his co-plaintiffs to be the sole owners of the same, to the extent of being entitled to flow water over it. The finding of the Trial Court was that the land belonged to Jado Rai alone. This finding necessarily led to the dismissal of the Suit No. 423 of 1918. It did not, however, govern the decision in Suit No. 462 of 1918, in so far as that decision affected this parcel of land. The finding was in favour of Musammat Radha upon her second or alternative line of defence, that is to say, that she did possess the right claimed by her as a right of easement over land belonging to Jado Rai. In consequence of this finding, the decree in that suit dismissed the claim brought, by Jado Rai and others in so far as it affected this plot of land. Musammat Radha had no reason for appealing against this decree so far as it concerned this parcel of land. She submitted to the decision in the matter of the window, but with this we are not concerned. In Suit No. 423 Musammat Radha appealed, contending once more that the land in question was the joint property of the two parties. On this appeal there was a finding in her favour by the lower Appellate Court and her suit was decreed. Thereupon Jado Rai appealed to this Court and a learned Judge of this Court has set aside the decree of the lower Appelate Court and restored that of the Court of first instance, upon a finding of res judicata. The point taken is that Musammat Radha, in that she did not appeal against the decree of the original Courf in Suit No. 462 of 1918, had submitted to a furling against her that the parcel of land in suit was the sole property of Jado Rai and the part:es arrayed along with him as plaintiffs in that suit. This finding, it was contended, barred a fresh consideration of the question in any other suit. The appeal before us is by Musammat Radha and others against this decision. We think the learned Judge of this Court was wrong. He refers to the case of Zaharia v. Debia 7 Ind. Cas. 156 : 33 A. 51 : 7 A.L.J. 661. That was a case in which two decrees were passed, each of which embodied and rested upon a finding adverse to one of the parties to the litigation. The right of appeal given by the Code of Civil Procedure is always a right of appeal against a decree. There is nowhere a right of appeal against the finding on an issue. If Musammat Radha had attempted to appeal against the decree in Suit No. 462 of 1918, in so far as it affected this plot of land, she would at once have been met by the objection that the decree was in her favour, the claim to restrain her from flowing water over that plot of land having been dismissed. We were pressed in argument with the phraseology of Section 11 of the Cede of Civil Procedure, but the argument addressed to us does not in reality affect the principle which we have just laid down. It is met by the consideration that as soon as the Trial Court in suit No. 462 of 1918 dismissed the claim for an injunction in respect of the floe of water upon the finding that Musammat Radha possessed a right of easement to this extent over the land, the question of the ownership of the land ceased to be substantially in issue so far as that suit was concerned.

2. For these reasons we set aside the decree of the learned Judge of this Court and restore that of the lower Appellate Court with costs in favour of the appellants in both Courts.


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