Harnam Singh, J.
1. Regular Second Appeal No. 249 of 1946 was dismissed with costs by Mehr Chand and Teja Singh, JJ. on 28th July 1948 on the preliminary objection that the appeal had became infructuous because subsequent to ?the declaratory decree in favour of the plaintiff he had obtained a decree for possession of the land in suit in the former suit and that the decree for possession bad become final as it had not been appealed against.
2. Briefly, the facts are that Badhawa Singh, grandfather of the defendants, had made a usufructuary mortgage of agricultural land in favour of Bulia Ram, grandfather of the plaintiff, for Rs. 700 on the foot of the registered mortgage deed executed on 22nd May 1879. On 6th June 1939, the defendants applied under Section 4, Punjab Act IV  of 1938 to the Special Collector, Ferozepore, for redemption and restitution of the mortgaged land. The Special Collector dismissed the application on the ground that the mortgage of 22nd May 1879 did not subsist on 6th June 1939 when the proceedings for redemption and restitution of the land were initiated before him. The case being remanded by the appellate authority the Collector allowed the application for redemption and restitution of the mortgaged land.
3. Subsequent to the order of remand dated 26th November 1942, the plaintiff-mortgagee instituted Civil Suit No. 1059 of 1944 on 4th July 1944 for declaration that he was owner of the land in suit and for perpetual injunction restraining the defendants from redeeming the mortgaged land. The suit was decreed with costs on 23rd July 1945 with respect to the land in suit excepting Khasra Nos. 1309 and 4079/3233. The suit with respect to Khasra Nos. 1309 and 4079/3233 was dismissed. The decree of the trial Court waa affirmed in appeal on 8th November 1945 and the defendants came up in second appeal to the High Court on 81st January 1946.
4. As stated above the Special Collector on remand allowed the application for redemption and restitution of the mortgaged land. Ram Chand, respondent to these proceedings, there, upon instituted civil Suit No. 101 of 1946 for possession of the land on the strength of the decree in Civil Suit No. 1059 of 1944. The suit was contested by the defendants but was decreed with costs on 12th October 1946. The defendants not appealing, the decree in civil Suit No. 101 of 1946 became final. It was under these circum. stances that R.S.A. No. 249 of 1946 was dismissed on 28th July 1948 on the preliminary objection mentioned above.
5. The defendants-appellants have applied to this Court under Sections 109 and 110, Civil P.C. for leave to appeal to the Federal Court of India against the decree of the East Punjab High Court passed on 28th July 1948 in Regular Second Appeal No. 249 of 1946.
6. Now, the subject-matter of the suit in the Court of first instance was 140 kanals and 3 marlas of land and the subject-matter in dispute in the Federal Court is 134 kanals and 18 marlas of land. The defendants-appellants have put in an affidavit to the effect that the market value of the subject-matter of the suit was Rs. 50,000 and the value of the subject-matter in dispute in the Federal Court is also Rs. 50,000 and the plaintiff-respondent has not put in a counter affidavit denying the statement about the market value of the subject-matter of the suit or of appeal.
7. Again, the decree of the High Court was a decree of affirmance as regards' the subject-matter of the suit dealt with by the Courts below. That being so, an appeal will lie from the decree of the High Court in B.S.A. No. 249 of 1946 provided the appeal involves a substantial question of law within the meaning of Section 110, Civil P.C.
8. Counsel for the petitioners urges in the first place that the decree in civil Suit No. 101 of 1946 did not bar the hearing of E.S.A. No. 249 of 1946 as the rule of res judicata is not applicable to appeals. He next urges that, if the appeal of Nika Singh and others be heard and a decision be obtained in their favour, the appellate decree in their favour will have the effect of superseding the decree in civil Suit No. 101 of 1946.
9. The first point that the rule of res judicata is not applicable to appeal proceedings is concluded by the decision in Mt. Lachhmi v. Mt. Bhulli A.I.R. 1927 Lah. 289 F.B. In that case Tek Chand, J. said:
It must, therefore, be settled at the very outset whether Section 11 applies to appeals or whether its operation is limited only to suits as meaning proceedings in an action in Courts of the first instance as distinguished from proceedings in appellate Courts. After a careful examination of the section I have reached the compulsion that it applies to suits and not to appeals. It is no doubt true that in the body of the Civil Procedure Code as well as in other enactments the word 'suit' is often used as including proceedings before the appellate Court, and alsO other proceedings of a civil nature. But having regard to the pharaseology used in Section 11 and more particularly to Expln. II, which, it might be noted, was for the first time added in 1908, the word 'Court' as used in this section can but mean the trial Court, and 'suit' signifies proceedings beginning with the plaint and ending with the decree in that Court.' Having held that Section 11, Civil P.C. applies to suits only and not to appeals Tek Chand, J. followed the view taken by Edge C.J. and Brodhurst J. in Ram Lal v. Chhab Nath 12 ALL. 578. In that case it was laid down:
Section 13 of the Code of 1882 did not apply to appeals, but the principle of res judicata did, as Rule 13 is not exhaustive.
10. Counsel for the petitioners cites Mt. Lachhmi v. Mt. Bhulli A.I.R. 1927 Lab. 289 F.B, Gul Hassan v. Mt. Resham Jan A.I.R. 1927 Lah. 821), Ram Sarup v. Sarnu Mal A.I.R. 1938 Lah. 114, Pappamal v. Meenammal A.I.R. 1943 Mad. 139, Shanhar Sahai v. Bhagwat Sahai A.I.R. 1946 Oudh 33, Narayanaswami Ayyar v. Sevadappa Goundar A.I.R. 1942 Mad. 226, Chapalamadugu Govindayya v. Suddapalli Bamamurthi A.I.R. 1941 Mad. 524, Ramasamy Chetty v. Karuppan Chetty A.I.R. 1916 Mad. 1133 and Lakshmi Ammal v. Official Receiver, Tinnevelly A.I.R. 1935 Mad. 214, in support of the second point.
10a. In No. 1 the facts were that two widows A and B were jointly in possession of certain land. Each sued the other for a declaration that she (the plaintiff) was the exclusive owner of the land and that the defendant had no right in it of any kind. By consent of parties the two suits were tried together and were disposed of by a single judgment, which decided that A was the owner but that B was entitled to hold possession of one half of the land in lieu of maintenance. A separate decree was drawn up in each suit declaring the rights of the plaintiff according to that decision. B appealed to the High Court against one of these decrees only, namely, the decree given in the suit in which she was the plaintiff. At the hearing of the appeal a preliminary objection was raised on behalf of the respondent that the appeal could not proceed by reason of B's failure to appeal from the deoree that had been passed against her in A's suit. It was held by Campbell, Addison, Tek Chand and Agha Haidar, JJ. (Dalip Singh, J. dissenting) that there was no force in the preliminary objection, as no bar to B's appeal proceeding was created either by the provisions of Section 2, Civil P.C., or by the general principles of res judicata, or by the fact that B had left outstanding against her a decree with which the decree sought by her to be obtained in the appeal would be in direct conflict. In disposing of this case Tek Chand, J. said:
Where two suits, having a common issue, are 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 dispased 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.
11. In No. 2 the facts were that G, the husband, sued B (his wife) for restitution of conjugal rights while B brought a counter suit against G for a declaration that she was not his wife. Both suits were tried together and the trial Court dismissed G's suit and decreed B's suit by one judgment but two separate decrees were prepared. G brought an appeal against the decree in his own suit but did not bring any appeal in the other suit. Addison 3. following Mt. Lachhmi v. Mt. Bhulli A.I.R. 1927 Lah. 289 (F.B.) held that the hearing of G's appeal was not res judicata either by the provisions of Section 11, Civil P. C, or by the general principles of res judicata or by the fact that the appellant had left outstanding against him a decree with which the decree sought by him to be obtained in the appeal would be in direct conflict.
12. In No. 3 the facts were that a suit was instituted by A against B for recovery of certain amount. Another suit was instituted by B against A. The two suits were consolidated and tried together as the issues were practically identical. The Court dismissed A's suit but decreed that of B. A appealed against the decree passed in B's suit but did not appeal against decree passed in his own suit. Bhide, J. following Mt. Lachhmi v. Mt. Bhulli A.I.R. 1927 Lah. 289 (F.B.) held that the unappealed decree did not operate as res judicata.
13. In No. 4 three suits were tried together and disposed of by a common judgment. The only issue which had been determined by the Court below so far was heirship of the plaintiff with the deceased. The three suits were dismissed and seperate decrees were passed in each of them. An appeal was, however, preferred against one decree only. Leach C.J., Lakshmana Rao and Somayya, JJ. held:
The object of the appeal being in substance to get rid of the very adjudication which is put forward as constituting res judicata that adjudication in the other two suits, which had become final not being appealed against, should not be held to bar the appeal. It was immaterial whether the suits were cross suits or not.
14. In No. 5 Ghulam Hasan, Misra and Madeley, JJ., of the Oudh Chief Court said:
Where two suits between the same parties involving common issues are disposed of by one judgment but two decrees and an appeal is preferred against the decree in one but it is either not preferred in the other or is rejected as incompetent, the matter decided by the latter decree does not become res judicata and it can be re-opened in appeal against the former.
15. In No. 6 Leach, C.J. observed:
An appellate tribunal is not precluded from dealing with a question which comes before it merely because an inferior Court on the same facts in a case other than that under appeal had given a decision which had not been appealed against at the same time as the decision under appeal.
16. The facts were that a suit by the mortgagee on a mortgage effected by an insolvent and an application to set aside the mortgage filed by the Official Receiver under Section 4 and 53, Provincial Insolvency Act, were heard together and disposed of by one judgment holding the mortgage to be valid with the result that the mortgagee was given a preliminary decree and the application of the Official Receiver was dismissed. The Official Receiver filed an appeal to the District Judge from the order of dismissal of his application but no appeal from the preliminary decree was filed.
17. It was contended that the rule of res judicata applied, and the Court held that the appeal was not barred by the principle of res judicata. The suit and the application referred to above were heard together and by one judgment dated 9th October 1934 the Sub-ordinate Judge granted the respondent a preliminary decree and dismissed the application under Sections 4 and 53, Provincial Insolvency Act.
18. In No. 7 Venkataramana Rao, J., held:
Where matter in issue in two suits was the same, and the finding in one suit has been adopted in the other, an appeal against one of these decrees is not barred by res judicata on the ground that no appeal was filed against the other decree.
19. The decision in Narayanaswami Ayyar v. Sevadappa Goundar A.I.R. 1942 Mad. 226 and C. Govindayya v. S. Bamamurthi A.I.R. 1941 Mad. 624 was based upon Panchanda Velan v. Vaithianatha Sastrigal 29 Mad. 333.
20. In Panchanda Velan v. Vaithianatha Sastrial and Ors. 29 Mad. 333, it was laid down:
Where cross suits between the same parties and oh same facts were tried together and the judgment was given on the same day but separate decrees were passed and an appeal was preferred against one of the decrees alone, the decree unappealed did not operate as a bar under Section 13, Civil P.C. so as to preclude the appellate Court from dealing with the decree appealed against.
21. Section 13, Civil P.C. 1877, corresponded to Section 11, Civil P.C., 1908. The decision proceeded upon the principle that the doctrine of res judicata has no application when the very object of the appeal in substance, if not in form, is to get rid of the decision which is pleaded as a bar. It would appear from the discussion set out above that in all these cases there was a common trial and the two cases were disposed of by a single judgment. In all those cases the suits were tried together and failure to appeal from decision in one was not held to bar the maintainability of the appeal in the other suit.
22. As stated above, the declaratory suit was instituted in the trial Court on 4th July 1944 and was disposed of by the trial Court on 23rd July 1945. The appellate Court affirmed the decision of the trial Court in the declaratory suit on 8th November 1945. The suit for possession was instituted on 31st January 1946 and it was decreed by the Subordinate Judge on 12th October 1946. It is obvious that the two trials were distinct and independent within the meaning of the rule laid down in Mt. Lachhmi v. Mt. Bhulli A.I.R. 1927 Lah. 289 F.B.
23. The reversal of the judgments of the Courts below by the High Court in Regular Second Appeal No. 249 of 1946 cannot have the effect of superseding the decree in the suit for possession. The decree in the suit for possession has become final and must stand whatever the decision of the Court in Regular second Appeal No. 249 of 1946 may be. Under these circumstances the decision of the High Court that the appeal had become infructuous beoause subsequent to the declaratory decree in favour of the plaintiff he had obtained a decree for possession which had not been appealed against is not open to any doubt.
24. No other point was raised in this Court. For the reasons stated above, I find that the question of law raised in these proceedings is a question which has been definitely settled by the High Courts in India and is one on which there is no difference of opinion.
25. The petition does not, therefore, satisfy the requirements of Section 110, Civil P.C., and I would dismiss the petition with costs of these proceedings.