1. This appeal arises out of a dispute as to fishey rights in two channels in the Tanjore district, claimed by the first defendant, the head of the Teruppanandal Mutt. The plaintiff was a man who had taken a lease of the fishery rights in these and other channels from Government; and being obstructed in the exercise of his rights in respect of these channels by the first defendant, he filed this suit, imp leading not only the first defendant but also the Secretary of State as the second defendant. In his plaint he prayed for an injunction restraining the first defendant from interfering with the fishery in the plaint channels and for damages caused to him (the plaintiff) by such interference and he added an alternative prayer that in case it was found that the first defendant was not liable for the aforesaid damages, the second defendant should be directed to pay them.
2. The Munsif dismissed his suit in toto and ordered him to pay the costs of both the defendants. He appealed to the Subordinate Judge who after calling for finding on three issues left undecided by the District Munsif dismissed the appeal with costs of both the respondents.
3. The present second appeal is preferred by the Secretary of State (the second defendant in the Munsif's Court and the second respondent in the Subordinate Judge's Court): and the first defendant who now figures as the second respondent raises the preliminary objection that as the decrees of both the Lower Courts are entirely in the present appellant's favour, he is not entitled to appeal against them.
4. The case is a somewhat curious one and the point is by no means free from doubt; but on the whole we think the objection must be allowed. Undoubtedly, as it stands, the decree of the Subordinate Judge as also that of the District Munsif is entirely in the appellant's (second defendant's) favour. Not only is the suit for relief against him dismissed but he is given his costs in both Courts.
5. The learned Advocate-General has argued at considerable length that any party to a suit aggrieved by a decree is entitled to appeal against it although the decree, on the face of it, may be entirely in his favour. He relies mainly on the ruling of Woodroffe; J. in Krishna Chandra Goldar v. Mobesh Chandra Saha (1905) 9 C.W.N. 584 which is quoted with approval in Tusuf Sahib v. Durgi I.L.R. (1907) Mad. 447 and followed in Nagalla Kotayya v. Nagalla Mallayya (1910) M.W.N., 719.
6. A perusal, of WOODROFFE, J'S judgment shows that he considered it an essential condition of the right of appeal that the appellant should be adversely affected in some way or other by the decree itself. This point is emphasised by ABDUR' RAHIM and KRISHNASWAMI AYYAR, JJ., in the latest of the three cases: wherein they say that the appeal 'lies only against the decree, and not against a more finding.' Certainly both in Krishna Chandra Goldar v. Mobesh Chandra Saha (1905) 9 C.W.N., 584 and Nagalla Kotayya v. Nagalla Mallayya (1910) M.W.N., 719 the learned Judges are at pains to explain most clearly in what way the mere existence of the decree apart from any finding in the judgment prejudiced the appellant. It may be admitted that this point is not so clear in Yusuf Sahib v. Durgi I.L.R. (1907) Mad. 447 but on the other hand the opinion there expressed is a mere obiter dictum and the decision of the case proceeded on other grounds altogether. The only case which has been quoted to us in which the right to appeal can be said to have been based on the findings, behind the decree rather than on the decree itself is Jamna Das v. Udey Ram I.L.R. (1899) All. 117 and it is to be noted that the decision proceeded on the basis that the finding was necessarily implied in the decree.
7. Now, in the present case, the only way in which it is suggested that the second defendant is adversely affected by the decree is that if the finding on the second issue operates as res judicata against him it prevents him from setting up in future any proprietary rights to the fishery in the suit channels. The said issue runs: 'Whether the second defendant has the right of fishery in the two-plaint vaikals.'
8. It may be pointed out at once that the decree certainly does not necessarily imply this finding--to quote the wording of the Allahabad case. The Munsif recorded no finding on issues 2, 6 and 7; but based his dismissal of the suit on other grounds. The Subordinate Judge called for findings in all the three issues above named. The Munsif returned findings adverse to the plaintiff on all three: and the Subordinate Judge accepted them as well as the findings originally recorded on the other issues. The plaintiff's claim for damages had already been decided against him under issue No. 4 and the Subordinate Judge finds in addition (paragraph No. 8 of his judgment) that 'the lofts sustained by reason of his non-enjoyment of the fishery is not separately ascertained and must be very slight.' Under issues Nos. 6 and 7 the Subordinate Judge agreeing with the Munsif found (a) that plaintiff was out of possession and had no right to sue for an injunction, (b) that as a lessee of one year he had no right to ask for a permanent injunction. The decision of these issues affords a perfectly independant basis for the dismissal of the suit apart from the question involved in issue No. 2. This circumstance at once distinguishes the case from Yusuf Sahib v. Durgi I.L.R. (1907) Mad. 447 above quoted. Again the prejudice to the second defendant is solely dependent on the assumption that the decision of issue No. 2 will operate as res judicata against him in future litigations. The respondent's vakil has quoted more than one case to show that no appeal would lie even if the matter were res judicata--a view which seems to obtain a certain amount of support even from Yusuf Sahib v. Durgi I.L.R. (1907) Mad. 447; but as a matter of fact we do not think that the decision in this case would operate as res judicata: and we may note for what it is worth, that the learned vakil for the respondents himself argues that it would not and oven expressed himself as willing to undertake to raise no such contention in future litigations.
9. We have already given reasons for holding that the determination of issue No. 2 was not necessary to the decision of the suit: and the examination of the pleadings and of the judgments of the Lower Courts shows that it cannot be said that the question raised therein was directly and substantially at issue between the first defendant and the second defendant Paragraph No. 8 of the plaint in putting forward the alternative claim against the second defendant (that he should be liable to pay the said damages Its 530) says: 'For this reason the second defendant is made party.' The second defendant while admitting the allegations in the plaint to the effect that the ownership of the fishery lies with him puts the plaintiff to proof of damages, and simply prays that the relief claimed against him be dismissed with costs. So far as can be ascertained the second defendant adduced no evidence in the case. And as the Munsif remarks in paragraph 11 of his judgment: 'The suit is not one by or on behalf of Government, and it is in fact one against Government.'
10. We must therefore held that the second defendant is not adversely affected in any way by the decree in this suit or by any finding necessarily implied therein, and that he has no right of appeal.
11. The appeal is' dismissed with costs.