V. Ramaswami, J.
1. The plaintiff in O.S. No. 175 of 1968 is the appellant in this second appeal. That was a suit filed by him as trustee of Dharmaraja Koil, Arkonam, for a declaration that he is the trustee of the said temple and for an injunction restraining one Murugesa Chettiar, the first defendant in that suit, from interfering with his management of the temple properties. A little earlier than that, the defendant Murugesa Chettiar himself had filed O.S. No. 170 of 1967 praying for a declaration that he is the lawfully constituted trustees of the said temple and for an injunction or in the alternative for delivery of possession of the endowed property. The said Murugesa Chettiar also filed O.S. No. 100 of 1968 as a trustee against one Kanna Pandithar for recovery of rest due to the temple.
2. As the common question to be decided in all these three suits was whether Murugesa Chettiar was lawfully constituted trustee or Kandaswami Chettiar, the appellant herein, was a lawfully constituted trustee, of the suit temple, the suits were tried together and by a common judgment, dated 30th April, 1971, the leraned Additional Subordinate Judge of Vellore granted a declaration that Murugesa Chettiar is a lawfully constituted trustee and accordingly decreed O.S. Nos. 179 of 1967 and 180 of 1968, filed by him and dismissed O.S. No. 175 of 1968, filed by the appellant herein. Though the judgment was common, three separate decrees were made in the three suits. The appellant preferred A.S. No. 227 of 1971, on the file of the District Court, North Arcot at Vellore, against the decree in O.S. No. 175 of 1968 alone. That appeal was allowed on merits by the learned District Judge holding that the appellant herein was the lawful trustee and not the first respondent, Murugesa Chettiar. The first respondent preferred Second Appeal No. 512 of 1973. On the ground that the judgment of the learned District Judge was too scrappy and too summary amounting to a non-application of the mind to the controversies raised between the parties, this Court allowed the appeal and remanded the matter for fresh disposal. When the matter again came up on remand, the learned District Judge again went into the merits and held that the finding of the trial Court that Murugesa Chettiar, the first respondent herein, was the lawful trustee is correct and that finding does not call for any interference and accordingly dismissed the appeal. It is against this judgment, the present second appeal has been filed.
3. Mr. V. Krishnan, the learned Counsel for the first respondent raised a preliminary objection as to the maintainability of the appeal on the ground that in the first respondent's suit O.S. No. 170 of 1967, a declaration that the first respondent is the lawfully constituted trustee has been given and the suit itself has been decreed, that since the defendant, was a party to that suit and that decree not having been appealed against, that finding had become final and would operate as res judicata in these proceedings taken against the suit filed by the appellant himself though both were tried together. In support, of this contention, he relied on the decision of the Supreme Court in Lomankutty v. Thomman : AIR1976SC1645 . The learned Counsel for the appellant on the other hand contended relying on the decision in Panchanada Velan v. Vaithinatha Sastrigal : (1906)16MLJ63 , and certain other decisions that since the same question as to whether the appellant or the first respondent is the lawfully constituted trustee is agitated in his appeal before the District Court and in this Court, the question is kept alive and it could not be said that any finality could be attached to the earlier judgment, and if on merits this Court were to agree and set aside the judgment of the Courts below, it will supersede automatically the decree made in O.S. No. 170 of 1967 and there was no need for him to file any separate appeal against O.S. No. 170 of 1967. It may be mentioned at this stage that O.S. No. 180 of 1968 filed by the first respondent for recovery of rent was decreed and that does not have any bearing on the determination of the question now at issue.
4. In Lomankutty v. Thomman : AIR1976SC1645 , the facts-are these. The appellant before the Supreme Court filed Civil Suit No. 666 of 1954, against the respondents in which the question for consideration was whether the respondents had not acquired any right of easement over the appellant's land for the ingress and egress of water for fishing rights as well as for agricultural purposes. The respondents filed Civil Suit No. 5 of 1957 for a declaration that they have acquired such a right in respect of fishing as also for agricultural purposes. The trial Court decreed the appellant's suit partly by holding that the respondents had not acquired any right of easement over the appellant's land for ingress and egress of water for fishing purposes but they had established such a right for agricultural purposes during the agricultural season. The trial Court issued an injunction restraining the respondents from taking or letting out water from or through the appellant's land for fishing purposes. In the respondents' suit, the trial court recorded similar findings and issued an injunction, against the appellant restraining him from interfering with the respondents' easementary right limited to agricultural purposes during the agricultural season. Each party being partly aggrieved by both the decrees, each of them filed appeals in the District Court against the two decrees. The learned Subordinate Judge who heard the appeals, dismissed all the four appeals, two arising from each suit, and confirmed the decrees of the trial Court. The respondents did not file any further appeal against the decree passed by the District Court in the appeal 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 1958, which arose out of the decree passed by the trial Court in the appellant's suit. Thus the decision of the District Court in the appeal arising out of the respondents' suit became final and conclusive. The question for consideration was whether the decision in the respondents' suit that they had not acquired any right of easement over the appellant's land for fishing purposes had become res judicata and therefore the appeal against the decree in O.S. No. 66 of 1958 could not be maintained. The Supreme Court held:
Thus, the decision of the, District Court rendered in the appeal arising out of the respondents's 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 section 11. Explanation I, Civil Procedure, Code. 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.
5. The ratio of this judgment is clearly applicable to the facts in the present case. As in the decision of the Supreme Court, in the present case also the question of trusteeship has directly and subsequently been in issue in both the suits. Though in the case before the Supreme Court, the trial Court gave two separate judgments, when the matter came to the District Court, the finding was given only in a common judgment. The Supreme Court's judgment that the issue was barred by res judicata was with reference to the appeal preferred in the High Court and not with reference to the appeal preferred in the lower appellate Court. With reference to the appeal preferred in the High Court it was against the common judgment rendered by the lower appellate Court. Therefore, the decision could not be distinguished on the ground that in the trial Court the judgments in the two suits were not common but separate. We need notice only one decision relied on by the learned Counsel for the appellant and that is a Full Bench judgment of this Court in Panchanada Velan v. Vaithinatha Sastirigal : (1906)16MLJ63 . In that case, a tenant filed a suit against the landlord for the grant of patta for fasli 1310 with certain terms agreed1 to by him. The landlord filed a separate suit for a direction against the tenant to accept patta for the same fasli on the terms and conditions suggested by him. The question at issue in both the cases was identical, namely, as to the terms of the patta for the year. The suits were trial together and judgment was given on the same day. Though the decree to be passed in each suit was in effect to be the same, the suit filed by the tenant was dismissed while the suit filed by the landlord was decreed in accordance with the judgment. The tenant preferred an appeal against the dismissal of this suit, but he did' not prefer any appeal against the decree granted in the landlord's suit. The appeal was dismissed on the ground that the decree in the landlord's suit not having been appealed against would preclude the determination of the question again in the appeal preferred by him in his suit. Against that judgment, a second appeal was preferred which was referred to a Full Bench which held that the appellate Court was not precluded from dealing with the appeal by reason of the doctrine of res judicata. Though it is possible to point out certain differences between the facts in that decision and the facts in the present case, it would not be proper to overlook the ratio of the judgment itself and I think the learned Counsel for the, appellant is right in the submission that the ratio is definitely for the view that it was not necessary for him to have filed an appeal against the decree in the first respondent's suit. But, as I have already pointed out, there is a direct judgment of the Supreme Court, though without reference to the Full Bench decision of our High 'Court, which had taken entirely a different view from that of the Full Bench of this Court and I am bound by the decision, of the Supreme Court. It may he pointed out that the judgment of the Supreme Court was followed by two of the learned Judge of this Court, one by Shanmukham, J., in Angappa Gounder v. Rajavelu and Ors. (1981) T.L.N.J. 280, and the other by Balasubrahmanyan, J., in Khaja Mohaideen v. Mohaideen Batcha : AIR1979Mad155 . I am also in agreement with the view expressed by the two learned Judges. The appellant not having preferred an appeal against the decrees in O.S. No. 170 of 1967, the appeal preferred against O.S. No. 175 of 1968 is liable to be dismissed on the ground that the finding in O.S. No. 170 of 1967 in final and binding on the parties.
6. The learned Counsel for the appellant then contended that it is not open to the respondents at this stage to raise this question of bar by res judicata and that he is estopped from raising such a contention. This was on the ground that at the time when A.S. No. 227 of 1971 was originally decided by the District Judge of North Arcot at Vellore before remand, this point was not raised as to the maintainability of the appeal by the respondents. He did not also raise the same when he preferred a second appeal nor did he raise this question after the matter came up for the second time before the District Judge in pursuance of the order of remand made by this Court in second appeal and therefore he is estopped from raising this question. I think this point will have to be dealt with, with reference to each of the stages when the matter was dealt with by the Courts below and this Court. At the time when the appeal was originally heard, since the appeal was by the appellant herein and not by the respondents, there was no occasion for him for specifically raising it. ] It is true that that judgment and decree was against the respondents and in fact the first respondent preferred an appeal to this Court and even in the second appeal he did not raise this question. But that judgment had been set aside on merits and there was no need for him to raise this question of bar by res judicata. When the matter again came up before the District Judge after remand also there was no-occasion for the respondent to raise this question as the appeal itself was dismissed on merits and the judgment was in his favour. Only in this Court for the first time it had become necessary for him to support the decree and he tried to support it on the ground i that the appeal itself has to be dismissed on the basis of bar by res judicata. Therefore, I am unable to agree with the learned Counsel for the appellant that the respondents are in any way estopped or precluded from raising this question in this second appeal.
7. For the foregoing reasons, the second appeal fails and it is dismissed. There will be no order as to costs.