1. This second appeal raises an interesting question of law about the principle of res judicata.
2. The only question that falls for determination is that when two suits involving substantially the same issue are disposed of under a common judgment, non-filing of an appeal against the judgment and decree in one suit, will operate as res judicata when the decision in the other suit alone is challenged in the appeal.
3. Though in my opinion, the Supreme Court has laid down that the principle of res judicata will be attracted 'in such cases, vide Koshal Pal v. Mohanlal, : 2SCR827 , followed by Balasubrahmanyam I in Khaja Mohideen v. Muhaideen Batcha, (1979) 92 Mad, LW
28: AIRA079 19M 155 and Lanankutti v, Thomman, : AIR1976SC1645 , learned counsel for the respohdents sought to distinguish these rulings on the ground that the, abode principle wig not be applicable to cast where the two suits were disposed of under a common Judgment Incidentally, the learned ?,couosel claimed 8upport to his above contention from the 11DROWift observation of the Supreme Court in Narhari v. Shanker, : 1SCR754 -
''It is now well ' settled that where there has been one trial, one finding, and one decision, there need not be two appeals, even though two decrees may have been drawn up. As has been observed by Tek Chand J. in his learned judgment in AIR 1927 Lahore 289 (FB) (H) mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree, brut it can only be created by the judgment The question of res: judicata arises only When there are two suits. Even when there are two suits. it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the- matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one. Besides, the High Court was wrong in not giving to the appellants the benefit 6f Sec. 5 of the Limitation Act, because there was conflict of decisions regarding this question not only in the High Court of the State but also among the different High Courts in India' (underlining by me).
and the decision of the Andhra Pradesh High Court in K. A. Natesa Chettiar Y. Nune Krishnaiah Chetti, : AIR1971AP179 . Hence is it I am persuaded to Tender a detailed judgment.
4. The facts, relevant for the discussion are, as hereunder.The appellants before me are the defendants in 0. S. No. 874 of 1970, District Munsif Court, Tindivanam. The respondents, the two, plaintiffs therein came forward with the above suit for declaration of their title to the six items of Properties and for a permanent injunction against ; the appellant from interfering with the former's possession and enjoyment of the said property. The defense taken by the, first appellant and adopted by the other appellants is 1hat the respondents are not absolute owners that the first appellant alone is entitled to 4/5th share while the plaintiffs to 1/5th share and that, therefore, the relief for injunction cannot be maintained.
5. Not satisfied with such defense in 0.S. No. 874 of 1970, the first appellant before me, brought another suit 0. S. NO. 154 of 1972 on the file of the same court against the two respondents herein and another, for partition and separate Possession of his 4/5th share in the very same six items of properties in respect of which the respondents claimed absolute title and injunction in the other suit O.S. No. 874 of 1970.
6.These two suits were disposed of under a common judgment by the trial court; it held that, the two respondents are entitled to declaration of their title only in respect of items 4 and 5 in their suit 0 S. No. 374 of 1970 and dismissed the suit in respect of other items. In the Other suit 0. S. No. 154 of 1972, it granted a decree in favour of the first appellant (the sole plaintiff in o. S. 154 of 1972) for Partition and separate possession in the suit properties other than Item No. 4 declaring the first appellant's share as 13/24.
7. The respondents alone preferred appeal A.S..No. 411 of 1975 in Sub-Court Cuddalore, only against the judgment and decree in 0. S. 874 of 1970 (that is their suit) and did not file any appeal against the judgment and decree in the other suit, 0. S. 154 of 1972.
8. The first appellate Court negatived the plea of res judicata stressed on behalf of the respondents before it (the appellants herein) and also reversed the decision of trial Court in 0. S. No. 874 of 1970 and decreed the suit as prayed for by the appellants before it (the respondents herein).
9. According to Mr. R. S. Venkatachari, learned counsel for the appellants on the Principle laid down by the Supreme Court in Koshal Pal v. Mohanlal, : 2SCR827 , followed in K. Khaja Mohindeen v. Muhaideen Batcha, : AIR1979Mad155 and in Lonankutti V. Thomman, : AIR1976SC1645 the appeal A. S. No. 411 of 1975 is barred under the principle of res judicata in so far as the resDondents had alowed the decisions in the other suit O.S. No. 154 of 1972, to become final. He fairly conceded that the first appellant did n(it have the benefit of the above Supreme Court decisions and that of this court, as well. Be that as it may, I find the learned counsel is well founded in his contention, in view of the authoritative pronouncement of the law by the Supreme Court in Lonankutti v. Thomman, : AIR1976SC1645 -
'Respondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of their suit. They filed a second appeal in the High Court only as against the decree passed by the District Court in A. S. No. 66 of 1978 which arose out of the decree passed by the trial Court in the appellant's suit. Thus, the decision of the District Court rendered in the appeal against out of the respondents' suit became final and conclusive. That decision, not having been appealed against could not be re-opened in the second appeal arising out of the appellant's suit. The issue whether respondents had the easementary right to the flow of water through the appellant's land for fishing purposes was directly and substantially in issue in the respondents, suit. That issue was heard and finally decided by the District Court in a proceeding between the same parties and the decision was rendered before the High Court decided the second appeal. The decision of the District Court was given in an appeal arising out of a suit which though instituted subsequently, stood finally decided before the High Court disposed of the second appeal. The decision was therefore one in a 'former suit, within the meaning of S. 11, explanation 1, C.P.C. Accordingly. the High Court was in error in deciding an issue which was heard and finally decided in a 'former suit' and was therefore barred by res judicata.'
10. The above principle governs the present case. For so long as the decree in 0. S. No. 154 of 1972, declaring that the appellants herein are entitled to 13/24th share in five items of properties, was allowed to become final because the respondents herein had not filed any appeal, it follows that such decision in 0. S. No. 154 of 1972, is one made in a 'former suit' within the meaning of S. 11, Explanation 1. C, P.C., 1908, when the first appellate Court came to deal with A. S. 411 of 1975 against 0. S. No. 974 of 1970. It, cannot be disputed that the issues involved in both the suits 0. S. No. 874 of 1970 and 0. S. No. 154 of 1972 are substantially the same. To the same effect is the decision reported in Koshal Pal v. Mohanlal : 2SCR827 . It is to be noticed that the dissenting judgment of Untwalia J. did not, turn on the principle upheld by the majority and reiterated in- the later decision of the Supreme Court in Lonankutti v. Thomman : AIR1976SC1645 : indeed Untwalia J. was also on the Bench which rendered the later decision.
11. There remains to be considered the portion particularly the one underlined by me, relied on by the learned counsel for the respondents in' Narhari v, .Shanker, : 1SCR754 . The short facts in that case are that against the decision in a suit, two first appeals came to be filed by two sets of the defendants to that action as each of them felt aggrieved; consequently two decrees came to be prepared by the first appellate Court, though the two appeals were, disposed of under a common judgment. Further, 'though two second appeals were presented by the aggrieved parties in the High Court, one came to be dismissed, as it was filed out of time, and as the application under S. 5 of the Limitation Act was dismissed. Eventually, one appeal alone was entertained by the High Court. In that context, it was contended that the dismissal of one of the second appeals would operate as res judicata so far as the other second appeal was concerned. Such a contention found favour with the High Court. But the Supreme Court held as extracted at the outset. It cannot, therefore be taken that the ratio laid down therein is as urged by the learned counsel for the respondents, more so in view of the authoritative pronouncement in Lonankutti v. Thomman, : AIR1976SC1645 .
12. As regards the decision of the Andhra Pradesh High Court, referred to supra, it is enough to remark that the same can be no longer good law in the face of the Supreme Court decision in Lonankutti v. Thomman, : AIR1976SC1645 .
13. The result is, the second appeal succeeds; consequently, the judgment and decree in A. S. No. 411 of 1975 are set aside and the decision of the trial Court in 0. S. No. 874 of 1970 is restored, In the above circumstances, I make no order as to costs.
14. Appeal allowed