P.V.B. Rao, J.
1. This appeal is by the plaintiff against the Judgment and decree of the learned Additional Subordinate Judge of Cuttack, reversing the decision of the learned First Munsif of Cuttack decreeing the plaintiff's suit for partition of 6 annas interest in Ka schedule property and 8 annas interest in Kha schedule property and for separate possession.
2. The case of the plaintiff is that Nityananda and Raghu were brothers; that the plaintiff is the daughter of Nityananda and the defendant is the son of Raghu; that Gandharba, son of Nityananda died issueless leaving a widow Hemalata since deceased; that Nityananda and Raghu were separate in status though the properties had not been divided by metes and bounds; that the defendant and Nityananda were possessing a 10 annas and a 6 annas share in Ka schedule property and 8 annas share each in kha schedule property; that thereafter Gandharba jointly possessed the properties in respective shares along with the defendant; and that the plaintiff had inherited the properties after the death of Gandharba and had been in joint possession thereof with the defendant and hence filed the suit for partition of her share in the Ka and Kha properties.
3. The defendant's contention is that Nityananda and Gandharba were members of a joint family along with himself; that they died in a state of jointness; that Hemalata was not a legally married wife of Gandharba; that on the death of Gandharba the defendant became the sole owner of the property by survivorship and had been in possession thereof; and that the plaintiff had no title and possession of the suit properties and was not entitled to claim any partition of the suit properties.
The defendant also alleged that he filed a title suit No. 278 of 1949 against Hemalata and one Gangadhar Naik and the plaintiff Sumi Debi, for setting aside a kabala executed by Hemalata and for a declaration that Hemalata was not the legally married wife of Gandharba. This suit, title suit No. 278 of 1949 and the present suit in appeal were taken up together for trial and were disposed of by one judgment.
4. The learned Munsif decreed the title suit No. 226 of 1949, that is, the suit under the present appeal and dismissed title suit No. 278 of 1949, that is the suit filed by the defendant for declaring the sale deed executed by Hemalata as invalid and not binding and that she was not the legally married wife of Gandharba.
The learned Munsif found that there was a severance of status between Nityananda and the defendant; that the defendant was not the sole survivor of Nityananda and Gandharba; and that the plaintiff succeeded to the properties after the death of Gandharba as his heir, and had been in possession of the suit properties and was therefore entitled to partition.
5. The defendant in title suit No. 226 of 1949 filed an appeal. There was no appeal filed by the defendant Prankrushna against the judgment and decree of the suit tried along with this suit and in which he was the plaintiff.
6. Sumi Debi as a respondent in the appeal before the learned Subordinate Judge raised a preliminary objection to the appeal that it was barred by res judicata, on the ground that Prankrushna the appellant had not preferred an appeal against the decree dismissing his title suit No. 278 of 1949 and that the question of title to the suit properties was res judicata between the parties to the appeal before the lower appellate Court as the decision in title suit No. 278 of 1949 had become final.
The learned Subordinate Judge overruled this contention relying on the decisions reported in -- 'Lachhmi v. Bhulli', AIR 1927 Lah 289 (A); -- 'Panchanada Velan v. Vaithinatha Sastrigal', 29 Mad 333 (B); -- 'Pappammal v. Meenammal', AIR 1943 Mad 139 (FB) (C); -- 'Shankar Sahai v. Bhagwat Sahai', AIR 1946 Oudh 33 (FB) (D); -- 'Manomohan Das v. Firm Shib Chandra Saha', AIR 1931 Cal 353 (E), in which it was held that there could be no res judicata on the ground that the defendant had not preferred any appeal against the decision in title suit No. 278 of 1949 as both the suits were tried together and one judgment was passed.
He also held that the defendant succeeded to the properties by survivorship. In this view of the matter, the learned Subordinate Judge set aside the judgment and decree of the learned Munsif and dismissed the suit.
7. Mr. Naba Kumar Das, the learned counsel for the appellant raised two contentions before us. Firstly, he contended that the learned Subordinate Judge erred in law in setting aside the finding of the learned Munsif and holding that the defendant succeeded to the properties by survivorship and secondly, that the learned Subordinate Judge erred in law in holding that the contention of the defendant in the appeal before him was not barred by res judicata.
8. Taking the first contention into consideration, we are of opinion that there is evidence in the case that there was a separation in status between Nityananda and Raghu. It is evident from Exs. 4 and 5 the certified copies of the khatians that in respect of Khata Nos. 682, 683, 789 and 800 there is a note that the interest of Nityananda is 6 annas and the interest of Prankrushna is 10 annas.
This specification of the respective shares of Nityananda and Prankrushna goes to show that they were divided in status. The learned Subordinate Judge held that as there was not specification of shares shown in the khatians with respect to other khata numbers and that even in the kliata numbers wherein the specific shares were shown there was nothing to indicate that any separate possession of either Nityananda or Gandharba or Prankrushna had been noted at the time of the Current Settlement which was finally published on 21-1-31, it could not be held that there was a separation.
In our opinion, the learned Subordinate Judge erred in holding that evidence of separate possession was necessary to show a division in status. This evidence of division in status furnished by Exs. 4 and 5 is also corroborated by the oral evidence on the plaintiff's side. The plaintiff examined 5 witnesses in support of the case of severance of status.
All of them stated that there was a division in status. P.W. 1 stated that the residential house of the parties had been divided and the defendant was occupying 5 rooms of the eastern portion and Nityananda, 5 rooms of the western portion. P.W. 2 who is the husband of the plaintiff stated that the alleged partition between Nityananda and Prankrushna was in the year 1934. P.W. 3 stated that there was a partition between Nityananda and Prankrushna. P.W. 4 the brother of Nityananda's wife stated that he had seen that Nityananda and Prankrushna were already separate. P.W. 5 also stated that there was division.
The learned counsel for the respondent Mr. Sinha contended that the evidence of the plaintiff with regard to the division as having taken place in 1934 is inconsistent with the allegations in the plaint. But it should be remembered that the plaintiff who is a sister of Gandharba might not have been aware of what happened prior to 1934. In our opinion the reasons given by the learned Subordinate Judge in discarding the evidence of these 5 witnesses are not cogent enough to set aside the finding of the trial Court that according to the evidence of all these witnesses, there was a division in status.
Moreover the copy of the Choukidari register filed by the plaintiff but which was not unfortunately exhibited in the Courts below and which is on the record clearly shows that the Choukidari assessment was paid by Prankrusnna Panda and Nityananda Panda separately. Some feeble attempt was made by Mr. Sinha that the name appearing in the said register Panu Panda is not Prankrushna Panda. But the choukidari receipts filed by him and marked Ext. A series also describe his name as Panu Panda. I cannot accept this contention.
In my opinion the plaintiff succeeded in proving that there was a division in status and consequently she is entitled to succeed to the properties of Gandharba.
9. This finding is enough to dispose of this appeal, but in view of the fact that elaborate arguments were addressed to us on the question of res judicata and the bar of the appeal before the lower appellate Court and as the contentions raised an important question of law, I propose to deal with that contention also.
10. This contention of the appellant is that the plea of the defendant in the appeal before the learned Subordinate Judge was barred by res judicata. He contends that as the defendant did not prefer an appeal against the decree dismissing the suit No. 278 of 1949, the question of his title to the suit properties became final inasmuch as it was held in that suit that he did not succeed by survivorship to the suit property and as such his contention is barred by res judicata to agitate the same question in the appeal against the decree in suit No. 226 of 1949 filed by the plaintiff.
The respondent contends that his appeal before the first appellate Court was not barred by res judicata as the parties to the suit in title suit No. 278 of 1949 being before the Court in appeal and the subject matter of both the suits being the same, the ultimate decision respecting the title to the suit properties in the appeal before the learned Subordinate Judge would bind the parties and that the decision in title suit No. 278 of 1949 could not be res judicata so as to bar the appeal.
11. It is clear from the judgment in title suit No. 278 of 1949 and title suit No. 226 of 1949 that those two suits were tried together as the plaintiff in suit No. 278 of 1949 was the defendant in suit No. 226 of 1949. It should be noted that title suit No. 278 of 1949 was filed by the present respondent against the present appellant and another one Gangadhar Naik for setting aside a kabala executed by Hemalata in favour of the said Gangadhar Naik and that suit which was tried along with the present suit in appeal was dismissed and there was no appeal by the defendant against that decree.
12. Though different issues were raised in the two suits at the time of trial, a common set of issues was adopted and the trial proceeded on the basis of those Issues.
13. The contention of the respondent is, therefore, that it cannot be said that any question of title to the suit properties had been finally heard and determined as between the parties to suit No. 226 of 1949 in suit No. 278 of 1949. He contends that the subject matter of both the suits is the same.
14. In support of his argument that the defendant is barred by res judicata to contend in the appeal against the decree in suit No. 226 of 1949 that he is entitled to the properties, the learned counsel relies upon the decisions in the cases of -- 'Raghunandan Singh v. Soubhagya Sundari Devi', AIR 1948 Pat 191 (F); -- 'Mrs. Gertrude Oates v. Mrs. Millicent D'Silva', AIR 1933 Pat 78 (G); and -- 'Ramkishan Lal v. Abu Abdullah', 156 Ind Cas 998 (Cal) (H).
15. With regard to the question of res jucdicata argued before us, there appears to be some divergence of judicial opinion not only between the various High Courts but also in some cases in the decisions of the same High Court. The Lahore, Madras, Nagpur and Oudh High Courts seem to take the view that in cases where two suits are tried together and one judgment is given in both the suits and an appeal is filed only against one and no appeal is filed against the other, the judgment of the suit in which no appeal is filed cannot operate as res judicata.
The Rangoon and Patna High Courts have taken a contrary view. In Allahabad and Calcutta High Courts there are conflicting decisions in the same High Courts.
16. There is a decision in the case of --'Narahari v. Shankar', AIR 1953 SC 419 (I), which is referred to in the text books as a decision of the Supreme Court which lends support to the view taken by the Lahore High Court in the case of 'AIR 1927 Lah 289 (FB) (A)', and other decisions of the Madras, Oudh and Nagpur High Courts. In fact the Lahore decision was approved as correct law in the said decision.
Had this been a decision of the Supreme Court of India, the matter would have been taken as finally settled. But as is seen from the Report, it is not a decision of the Supreme Court of India, but a decision of the Supreme Court of Hyderabad, which in consequence of the merger of Hyderabad and for the necessity for disposal of the appeals pending in the Supreme Court of Hyderabad, is a Court constituted for the disposal of those appeals consisting of two Judges of the Hyderabad Supreme Court and one Judge of the Supreme Court of India, Mahajan J., (as he then was).
In my opinion, therefore, this decision cannot be taken as a decision of the Supreme Court of India binding on us.
17. The case of 'AIR 1927 Lah 289 (FB) (A)', is the leading decision of the Lahore High Court in which it was held that where two suits having their common issues by consent of parties or by an order of the Court are tried together, the evidence being written in one record and both the suits disposed of by a single judgment, it cannot be said that there have been two distinct and independent trials and that therefore if there is an appeal against the judgment in one case and no appeal against the decree in the other, there can be no question of res judicata.
This is a decision by a majority of 4 Judges to 1. To a similar effect also is a decision of a Full Bench of the Madras High Court in the case of 29 Mad 333 (FB) (B)'; 'AIR 1943 Mad 139 (FB) (C). The Pull Bench of the Oudh High Court which takes a similar view is the case of 'AIR 1946 Oudh 33 (FB) (D). The Nagpur High Court also took the same view in the case of -- 'Manohar Vinayak v. Laxman Anandrao', AIR 1947 Nag 248 (J).
The decisions of the Patna High Court which take a contrary view are the decisions already noted above and relied on by the appellant. The Rangoon High Court took the same view as that of the Patna High Court as can be seen from the case of -- 'Anwar All Sowdagar v. Ameer Ali Sowdagar',' AIR 1925 Rang 104 (K). With regard to Calcutta High Court, the Lahore view is taken in the case reported In -- 'Bahadur Singh Singhee v. Jyotirupa Debi', 64 Cal LJ 431 (L)', and the Patna view is taken in the case reported in -- 'Isup Ali v. Gour Chandra Deb', AIR 1923 Cal 496 (M)', following the earlier decision of the Allahabad High Court.
The Allahabad High Court took the view that there will be res judicata, in the cases reported in -- 'Zaharia v. Debi', 33 All 51 (FB) (N); and -- 'Mahomed Mohtashim v. Joti Prasad', AIR 1941 All 277 (O), and other cases and the contrary view in the cases reported in -- 'Ghansham Singh v. Bhola Singh', AIR 1923 All 490 (2) (FB) (P); and -- 'Ram Surat Singh V. Ram Murat Singh', (3) AIR 1955 All 543 (Q). I could not get any direct decision on this question as far as the Bombay High Court is concerned.
18. The question of the applicability of the doctrine of res judicata in this case is to be considered in two aspects, namely, whether there is a bar under Section 11 of the Civil P. C., against the defendant raising any contention with regard to the title in the appeal preferred by him against the decree in the plaintiff's suit without preferring an appeal against the decree in his suit and whether if Section 11 does not apply, his contention is barred by the general principles of res judicata.
19. Section 11 of the Civil P. C., is to the effect:
'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.'
Tek Chand J., held in 'AIR 1927 Lah 289 (A)', that Section 11 of the Civil P.. C., applies by virtue of Explanation II to that section only to suits and cannot be relied upon in appeals. To a similar effect is the decision of the Calcutta High Court in the case of '64 Cal LJ 431 (L)', where it was observed that if the phraseology of the entire Section 11 of the Civil P. C., is to be taken together, as it must be, the word 'suit' in the Section cannot be read as including an 'appeal' in all parts of it; it certainly cannot be read in that way in Explanation II.
With all respect to the learned Judges, I cannot agree to this reasoning, if the word 'suit' in Section 11 is to be confined only to an action instituted on a plaint and it does not include an 'appeal' against a judgment in that suit then the doctrine of res judicata embodied in Section 11 will become completely nugatory. A party may rely on a judgment and decree in appeal as constituting res judicata in a subsequent suit instituted and embracing the same issue though that issue was decided in his favour in the suit filed by him but was so decided in appeal.
If suit does not include appeal it follows that he cannot plead res judicata in the subsequent suit which if I may say so, leads to a very inconsistent position. The foundation of rule of res judicata is that a question must be one fairly tried by a competent Court and after this is done, all further litigation about it should be concluded for ever between the parties and no one shall be vexed twice over the same.
20. In the case of 'AIR 1941 All 277 (O)', a Division Bench of the Allahabad High Court held that where a creditor filed a suit on a pronote against the debtor for recovery of a certain sum and the debtor had also filed a suit against the creditor under Section 33, U. P. Agriculturists' Belief Act and both the suits were disposed of by a single judgment and the same sum was found due to the creditor from the debtor and the debtor appealed from the decree in suit filed by the creditor but not from the decree in the suit filed by himself, the appeal was barred under Section 11 of the Civil P. C.
21. In the case of AIR 1923 Cal 496 (M) Mookerjee J. following the judgment of Mahmood J. in the case of -- 'Balkishen v. Kishan Lal', 11 All 148 (R), observed--
'Justice Mahniood held in 'Balkishen v. Kishan Lal (R)' that the doctrine of res judicata, so far as it relates to prohibiting the retrial of an issue, must refer not to the date of the commencement of the litigation, but to the time when the Judge is called upon to decide the issue, and the rule is not limited to the Courts of first instance. It applies equally to the procedure of the first and second appellate Courts, and, indeed, even to miscellaneous proceedings.
See the decision of the Judicial Committee in -- 'G. N. Hook v. Administrator-General of Bengal', AIR 1921 PC 11 (S). We are in complete agreement with the exposition of the law given by Mahmood J.'
I am therefore of opinion that Section 11 of the Civil P. C. applies to the determination of the issue) in this appeal.
22. Under Section 96 of the Civil P. C. an appeal shall lie from every decree passed by any Court exercising original Jurisdiction to the Court authorized to hear appeals from the decisions of such Court and a decree is defined in Section 2(2) as
'decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final ....' and Clause (9) defines judgment as 'judgment means the statement given by the Judge of the grounds of a decree or order.' In Wharton's Law Lexicon, 'judgment' is defined as 'a judicial determination or a decision of a Court.'
In my opinion, therefore, the word 'judgment' in England is generally used in the same sense as a decree in the Code of Civil Procedure. So in order to decide whether in the circumstances present in this case there is a bar of les judicata, it is necessary to take into consideration the existence of a decree and the question cannot be decided by simply confining oneself to the term judgment.
Consequently, if there is a same judgment in two cases tried together and there is an appeal against the judgment in one case, it cannot be said that there is no bar of res judicata for the appeal when there is no appeal against the decree and judgment of the other case. The appeal is an appeal against the decree and it can be taken to be an appeal only against one decree leaving the other decree unappealed, in consequence of which it becomes final.
The question of res judicata in such circumstances cannot be decided only with reference to the judgment ignoring the existence of a decree in the other case.
23. The cases of the Lahore, Madras, Oudh and Nagpur High Courts proceed mainly on the view that the bar of res judicata arises on the judgment and in the two cases the judgment being the same, there can be no res judicata.
24. The majority opinion of the Full Bench as expressed by Justice Tek Chand is,
'Where two suits, having a common issue ere, by consent of parties or by order of the Court, tried together, the evidence being written in one record and both suits disposed of by a single judgment, can it be said that there have been two distinct and independent trials?
There being but one finding and one judgment, on what principle can the hearing of the appeal in which this finding and this judgment are under consideration be barred merely because no appeal has been filed in the connected suit which was disposed of by that very judgment?
There has been, in substance as well in form, but one trial and one verdict, and, I venture to think, it will be a travesty of justice to stifle the hearing of the appeal against such a judgment on the ground that the findings contained in it operate as res judicata. In such a case there can be no question of the successful party being 'vexed twice' over the same matter, nor does the hearing of the appeal in any way militate against any rule of public policy, which requires that there must be an end of litigation.
There is not only nothing here to attract the principles underlying, the rule of res judicata, but, on the other hand, it seems to me that the acceptance of such a plea in such circumstances would strike at the very root of the basic conception of the doctrine which requires that a party must have at least one fair trial of the issue resulting in a decision by the Court of ultimate appeal as allowed by the law for the time being in force.'
A contention was taken before the Full Bench of the Lahore High Court that even though the two suits were tried together and may be taken to have been disposed of by one judgment, and two decrees were actually passed one in each suit, and as only one such decree has been appealed against, the other remains outstanding and has become final and that if the appeal is allowed to proceed and is successful, an anomalous and embarrassing situation of having two inconsistent and contradictory decrees on the record of the Court might be created.
This, in my opinion, is the real point at issue In determining whether the doctrine of res judicata applies. But this argument was met by the learned Judge Tek Chand J. by saying that the decree itself is not the least of what is or is not res judicata, but the question in each, case is what did the Court decide and that the determining factor is not the decree but the decision of the matter in controversy.
He also observed that the existence of a decree not appealed against the same judgment does not create an estoppel against the hearing of the appeal, as the estoppel would not be created by the decree but would be created only by the judgment & as there is only one single judgment, the plea cannot prevail. He was also of the opinion that if there are two inconsistent decrees, the latter decree shall prevail.
With all respect I cannot agree with this reasoning of the learned Judge in saying that it is well settled that if two or more conflicting decrees happen to be passed regarding the same property in two different proceedings, it will be the last one which will prevail'. The learned Judge relied upon the decisions in the cases of -- 'M. Seshayya v. Venkatadri Apparao', AIR 1917 Mad 950 (T); -- 'Dambar Singh v. Munawar Ali Khan', AIR 1915 All 420 (U) and -- 'Mallu Mal v. Jhamman Lal', 1 All LJ 416 (V).
The facts of those cases were quite different and they are not cases of the existence of two decrees arising out of the same judgment in suits tried together. In 'M. Seshayya v. Venkatadri Apparao (T)', the dispute was between the tenants and the landlord as to the rate of rent. The landlord pleaded a decree of 1895 as constituting res judicata. There was also a decree in 1893 fixing a particular rate of rent between landlord and tenants which was lower than that in 1895.
In 1895 again a different rate was decreed but the decree of 1893 was not pleaded in bar as res judicata. Again there was a litigation for the third time and when the decree' of 1895 was pleaded in bar, the tenants wanted to plead the 1893- decree as a bar and under those circumstances the Court held that the latter decree prevails (i.e. the decree of 1695) relying on the two Allahabad cases.
The Court also held, that the plea of res Judicata being purely procedural can be waived and as the tenants did not plead the same in the suit of 1895 the latter decree of 1895 prevails. This, in my opinion, does not help in doing away with the existence of an inconsistent decree in the facts which are before us.
25. The existence of an inconsistent decree which will support the bar of plea of res judicata as being the important point is to be taken into consideration in coming to a conclusion whether the plea of res judicata is availing under the circumstances present in this case. It is clearly indicated in the judgment of Stanley C. J. in the Full Bench case of the Allahabad High Court in the case of 33 All 51 (N) and the judgment of Sir Asutosh Mookerjee J. in the case of AIR 1923 Cal 496 (M). Stanley C. J. in 33 All 51 (N) observed:
'The decree obtained by Manphul stands unreversed and is binding upon the appellant. The time for impeaching it has expired, and I am not aware of any procedure by which this decree can now be rendered nugatory. It was suggested during the argument that if the appeal of Zaharia be heard and a decision be obtained in his favour, the appellate decree in his favour will have the effect of superseding the former decree, but this cannot be.
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 later Full Bench decision of the Allahabad High Court in the case of AIR 1923 All 490 (2) (P) did not differ from this view of Stanley C.J. but only distinguished the case reported in 33 All 51 (N), Inasmuch as in the case before the later Full Bench the facts were quite different and the existence of another decree did not in any way prejudice the parties.
Sir Asutosh Mookerjee J. in AIR 1923 Cal 496 (M) observed, at p. 498,
'Two observations are pertinent in this connection; first, that the requirements of the rules of procedure cannot always be ignored, on the allegation that they are technical and are matters of form, not of substance; secondly, that a non-appealable decree may operate as res judicata, as explanation 2 to Section 11 of the Civil P. C., 1908, prescribes that the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.'
26. The same view as that of the Allahabad High Court in 33 All 51 (N) was taken by the Patna High Court in the cases relied upon by the learned counsel for the appellant.
27. The decision reported in AIR 1953 SC 419 (I) though it has approved of the decision of Tek Chand J. in AIR 1927 Lah 289 (A), has not discussed exhaustively the law on the subject and as it is not a decision of the Supreme Court of India, this Court is not bound by it.
28. In my opinion, therefore, 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. In the case before us there is another circumstance which clearly shows that the appellant before us is entitled to plead the bar of res judicata before the District Judge in the first appeal.
In the suit filed by the defendant in title suit No. 278 of 1949 not only the plaintiff in title suit No. 226 of 19l9 is a defendant but also another person in whose favour Hemalata executed a sale deed was also a defendant. By the decision dismissing the title suit No. 278 which is not appealed against there is a decree against the present respondent negativing his right to the properties by survivorship. The decision of the District Judge in appeal against suit No. 226 is a decree holding that the defendant has succeded by right of survivorship to the properties.
There are not only inconsistent decrees as between the appellant and the respondent but also there is a decree in favour of Gangadhar Naik dismissing the defendant's suit as against him. There may be difficulty in execution if the appellate decree is allowed to stand as that decree would not be binding upon Gangadhar Naik and if he is in possession of the properties, the defendant would not be able to get possession of the same.
Under the circumstances, the decree of the first appellate Court cannot be allowed to stand. The contention of the defendant in appeal before the first appellate Court is barred by res judicata.
29. The appellant, therefore, is bound to succeed on the two points raised by him. In conclusion, I set aside the decree and judgment of the lower appellate Court, allow the appeal and restore those of the trial Court's throughout.
30. I agree and have nothing to add.