S. Barman, J.
1. This case arises out of twosuits which were tried together and were disposed of by the same judgment by both thecourts below but two decrees were drawn up.This second appeal is an appeal from a decision in only one of the said two suits. Theappellants herein Haraprasad Panda andJogeswar Panda did not prefer an appealagainst the decree in the other suit which wasagainst them.
2. The facts briefly stated are these: One Krupasindhu Panda and Markanda Panda were two brothers. The appellants herein Haraprasad Panda, Jogeswar Panda and three others (Anirudha, Bidyadhar and Sarbeswar) belong to Markanda's branch. Hiramani Devi and Saraswati Devi as widows are the only two surviving members representing Krupasindu's branch of family. It is said that Hiramani's husband Khetramohan during his life time had sold plot No. 447 out of the family property to one Gopal Chandra Chand who in turn sold the same to one Ramesh Chandra Panda a stranger purchaser. The appellants Haraprasad and Jogeswar are said to have removed bamboos from the plot and thus interfered with the purchaser Ramesh Chandra's possession. Thereupon in 1957 the purchaser Ramesh Chandra filed a suit against the said Haraprasad Panda and Jogeswar Panda being O. S. 307 of 1957 for declaration of title and possession in respect of the said plot No. 447. In the said declaratory suit the defence taken by Haraprasad and Jogeswar was that there was no partition by metes and bounds of the suit holding and they claimed to be in possession of the said plot No. 447 throughout. They are, however, said to have admitted the story of amicable partition. As a sequel to the said suit O. S. 307 of 1957 by Remesh ChandKa Panda, the appellant herein Haraprasad and Jogeswar and his three said agnates cousins Anirudha, Bidyadhar and Sarbeswar as plaintiffs filed a suit being O. S. 110 of 1958 for partition of the joint family properties. In the said suit O. S. 110 of 1958 the two widows Haramani and Saraswati Devi representing Krupasindhu's branch of the family and six others including the purchaser of the said plot No. 447 Ramesh Panda were also made party defendants. The purpose for filing the said suit for partition was that in case the sale of the said plot. 447 by Haramani's husband Khetramohan of Krupasindhu's branch to Ramesh Chandra Panda is found to be valid the purchaser Ramesh will then get the same as out of the share of Krupasindhu's branch of the family. Both the said two suits were heard analogously.
3. The material findings of the Courts below in the said two suits analogously heard were these: The trial court in Ramesh's declaratory suit O. S. 307 of 1957 for plot No. 447 found that there was a partition of the joint family properties between the two branches of the family; that Ramesh had acquired title and possession to plot No. 447 and he was to recover Rs. 5/- as price of bamboos removed as damages and the suit was decreed accordingly in favour of Ramesh. In the partition suit O. S. 110 of 1958 the trial court found that there was a previous partition of the entire joint family properties except two tanks which were directed to be partitioned in the manner indicated in the judgment and that the other properties in suit cannot be partitioned. Separate decrees were drawn up in both the said suits. The appellants Haraprosad and Jogeswar filed two separate appeals against the decision of the trial court in both the said suits, namely, M. A. 80 of 1961 against the decision of the trial court in the partition suit O. S. 110 of 1958 and M. A. 87 of 1961 against the decision in favour of the stranger purchaser Ramesh in his suit O. S. 307 of 1957 with regard to plot No. 447. The learned lower appellate court heard together both the said two appeals and dismissed them. The judgment and decree passed by the trial court in both the said suits were thereby confirmed. Two separate decrees were also drawn up in these appeals before the lower appellate Court. This second appeal has been filed by Haraprasad and Jogeswar from the judgment and decree passed by the learned lower appellate court in M. A. 86 of 1961 confirming the judgment of the trial court in the partition suit No. O. S. 110 of 1958.
4. In my opinion, this second appeal against only one of the decrees is not maintainable as barred by res-judicata. Any decision in this second appeal, if entertained, is likely to lead to inconsistencies. The position is this: There is no appeal from the concurrent decision of the courts below in Ramesh's declaratory suit O. S. 307 of 1957 for plot No. 447. The decision in favour of Ramesh in respect of the said plot therefore cannot be disturbed. In the said suit the defence was taken by the present appellants Haraprasad and Jogeswar who were defendants in the said suit that there was no partition by metes and bounds and accordingly Ramesh acquired no title under the purchase from Khetramohan of Krupasindhu's Branch of the family. It is true that no specific issue regarding partition was raised in Ramesh's O. S. 307 of 1957. It is however well settled law that even if a particular matter be not included in a formal issue, if it is directly and substantially in issue between the parties and if there be a decision thereon, it will operate as res judicata Rohini Nandan v. Jadunandan, AIR 1926 Cal. 1022. In the present case the decision of the trial Court in favour of Ramesh in respect of the said plot No. 447 was on the basis that there was a partition by metes and bounds between the two branches of the family. The decision of the trial Court in favour of Ramesh was upheld by the learned lower appellate Court. In order to decide the question of Ramesh's title to plot No. 447 which was in issue in the said declaratory suit O. S. 307 of 1957, the court below had to determine the question of partition by metes and bounds which was raised in defence to the said suit as aforesaid and this determination was the groundwork of the decision of the courts below in the said suit.
5. This my view is also supported by a Division Bench decision of this Court in Sumi Debi v. Pranakrushna Panda (S) AIR 1950 Orissa 68 in which it was held that Section 11 Civil Procedure Code applies to the determination of the issue in appeal; that where two suits are tried together and are disposed of by the same judgment, but two decrees are drawn up and there is an appeal in only one suit, the appeal is barred as the appellant did not prefer an appeal against the other decree which was against him.
6. It cannot be disputed that so far as plot No. 447 in respect of which Ramesh's title was declared by both the courts below in O. S. No. 307 of 1957, it is res judicata. The order portion, so far as material, of the trial court decree in the said suit which was upheld in appeal by the learned Lower Appellate Court is this:
'....Plaintiffs (Ramesh's) title over the plot No. 447 is hereby declared and he do recover possession of the same through court. He do recover Rs. 5/- from the defendants (Haraprasad and Jogeswar) damages.'
The decree obtained by Ramesh stands unreversed and is binding upon the present appellants herein Haraprasad and Jogeswar. The time for impeaching this decree has expired and there is no procedure by which this decree can now be rendered nugatory. So the position is that this decree in favour of Ramesh cannot be suppressed by any decision herein. This being so, if this court in second appeal accedes to the argument made on behalf of the appellants, there would be two inconsistent decrees on the files of the Court. This would be a serious anomaly and in execution proceedings it would cause a complete impasse.
7. Apart from res judicata, I find no substance in the appellants' contention even on merits. They asked for remand of the case on the ground that one unnumbered plot measuring 31 decimals having not been recorded in the name of any party in the Khatian Ex. 5 it was not partitioned. It was also contended that in view of the finding that there was a completed partition in the family the finding that the two tanks are to be partitioned as directed by the courts below is inconsistent. I do not find any merit in either of these contentions. The concurrent decision of both the courts below is based on their appreciation of the evidence as fully discussed in their judgment which I need not repeat herein. In these circumstances there is no necessity for remand of the case as prayed for on behalf of the plaintiffs appellant.
8. There is thus no merit in this appeal. The decision of the Courts below is upheld. The appeal is dismissed with costs.