Appeal No 563 of 1960
Appeal by special leave from the judgment and decree dated March 20 1959 of the Patna High Court in Election appeal No 8 of 1958
J C Sinha D P Singh M K Ramamurthi R K Garg and section C Agarwala for the appellant
B C Ohosh and R C Datta for respondent No 1
Udaipratap Singh and P C Agarwala for respondent No 2 1961
September 22
The Judgment of the Court was delivered by RAGHUBAR DAYAL J
Badri Narain Singh the appellant and four other persons including Kam Deo Prasad respondents were candidates to the Bihar Legislative Assembly during the last general election held in 1957
Two of those candidates withdrew before the relevant date
The appellant secured the largest number of votes and was declared elected on March 14 1957
Respondent No 2 secured larger number of votes than 761 Kam Deo Prasad respondent No 1 who filed an election petition under sections 80 and 81 of the Representation of the People Act 1951 Act XLIII of 1951 challenging the election of the appellant on the ground that the nomination of the appellant and respondent No 2 who as Ghatwals held an office of profit was against the provisions of section 7 of the Act and that the appellant had also committed corrupt practices
Kam Deo Prasad by his election peti tion not only prayed for the declaration that the election of the appellant was void but also for the declaration that he himself was duly elected
The appellant denied the allegations against him
The Election Tribunal held that Badri Narain Singh the appellant was guilty of corrupt practices and that a Ghatwal was not a holder of an office of profit under the State of Bihar
It therefore set aside the election of the appellant but did not grant the dec laration that Kam Deo Prasad was a duly elected candidate
The appellant filed Election Appeal No 7 of 1958 in the High Court of Judicature at Patna against the order of the Election Tribunal setting aside his election and prayed that the order of the Election Tribunal be set aside and that it be held that he had been duly elected
Kam Deo Prasad also filed Election Appeal No 8 against the order of the Election Tribunal not declaring him to be the duly elected candidate and prayed for a declaration that he had been duly elected
The grounds of appeal questioned the correctness of the finding of the Election Tribunal that Badri Narain Singh and respondent No 2 as Ghatwals were not the holders of offices of profit and that Kam Dec Prasad could not be declared duly elected
Both these appeals were disposed of by the High Court by one judgment
It did not accept the finding of the Election Tribunal that Badri Narain Singh had committed any corrupt practice and accepted the contention for respondent No 1 that Badri Narain Singh and respondent No 2 held 762 offices of profit under the Bihar Government as they were Ghatwals
It was in this view of the matter that it confirmed the order of the Election Tribunal setting aside the election of the appellant and allowing the appeal of respondent No 1 declared him duly elected
The concluding portion of the judgment of the High Court may be usefully quoted here  To conclude the election of the returned candidate is not valid and the order of the Tribunal is therefore right though on different grounds
Further there was only one seat and three persons contested it namely the petitioner and the two respondents
The two respondents were disqualified for being chosen as and for being members of Legislative Assembly or Legislative Council of the State and therefore their nomination papers were not validly accepted
If their nomination papers are rejected and it cannot but be rejected the only person left in the field was the petitioner Kam Deo Prasad Singh and therefore be must be declared to be duly elected
In the result Election Appeal No 7 of 1958 is dismissed and Election Appeal No 8 of 1958 is allowed and Kam Deo Prasad Singh is declared to be duly elected to Bihar Legis lative Assembly from the Sarnath State Assembly Constituency in the district of Santal Parganas
 As a result of this order separate decrees were As a result of this order separate decrees were As a result of this order separate decrees were prepared in the two appeals
Decree in Election Appeal No 7 said It is ordered and decreed that this appeal be and the same is hereby dismissed 
The decree in appeal No 8 said It is ordered and decreed that this appeal be and the same is hereby allowed and Kam Deo Prasad Singh is declared to be duly elected to the Bihar Legislative Assembly from the Sarnath State Assembly constituency in the District of Santhal Parganas 
763 The appellant has filed this appeal by special leave against the order in Election Appeal No 8 of 1958
All the grounds of appeal relate to the finding of the High Court that the office of a Ghatwal is an office of profit
The petition for special leave to appeal does not mention the relief the appellant seeks from this Court
Presumably he prays for the setting aside of the order in Appeal No 7 confirming the order of the Election Tribunal setting aside his election and also the order in Appeal No 8
A preliminary objection has been taken on behalf of respondent Kam Deo Prasad Singh that this appeal is incompetent as barred by the principle of res judicata inasmuch as the appellant did not appeal against the order of the High Court in Appeal No 7 whose dismissal by the High Court confirmed the order of the Election Tribunal setting aside the election of the appellant
It is urged that the order setting aside the appellant s election having become final it cannot be set aside and that the finding arrived at in that appeal about a Ghatwal being a holder of an office of profit operates as res judicata in this appeal and therefore no appeal against the order in Appeal No 8 declaring respondent No 1 to be the duly elected candidate can be pressed on the ground that the view of the High Court about the appellant s holding an office of profit is wrong
If the correctness of that view cannot be challenged the correctness of the declaration in favour of respondent No 1 cannot be challenged in this appeal on any other ground when no other ground had been taken in the application for special leave
The contention in effect therefore is that it is not open to the appellant in this appeal to question the correctness of the finding that he held an office of profit under the Bihar Government a finding which formed the basis of the dismissal of Appeal No 7 and the confirmation of the order setting aside his election
764 The learned counsel for the appellant relied on the judgment of this Court in Narhari vs Shankar1 in support of his contention that the judgment in Election Appeal No 7 cannot operate as res judicata in this appeal
That case is distinguishable on facts and is with respect to the interpretation of section 11 of the Code of Civil Procedure
In the suit
 in that case the plaintiffs claimed possession over 23rds of the plot No 214
They claimed 13rd which was in the possession of  one set of defendants namely defendants Nos 1 to 4 and the other 13rd was in possession of another set of defendants namely defendants Nos 5 to 8
Each set of defendants claimed that they were entitled to the land in their possession as their share of the family property and denied the allegations of the plaintiffs that the senior branch was under custom entitled to exclusive possession of the plot which was Inamland
The suit was decreed by the trial Court
Each set of defendants then filed an appeal claiming 13rd of the plot
The first appellate Court allowed both the appeals and dismissed the plaintiffs suit by one judgment and ordered a copy of the judgment to be placed on the file of the other connected appeal
Naturally it decided the one point of contention common to both the appeals namely that the senior branch was not entitled to exclusive possession of the plot
This was the finding in each of the appeals
The plaintiffs thereafter filed two appeals to the High Court one against the decree in the appeal filed by defendants Nos 1 to 4 and the other against the decree in the appeal filed by defendants Nos
5 to 8
The latter appeal was filed beyond limitation and the High Court refused to condone the delay
It was contended at the hear ing of the appeal that the second appeal was filed 1  765 beyond the period of limitation and was not maintainable and that when it was dismissed as not maintainable the first appeal would we barred by the principle of res judicata
The High Court agreed with the contention dismissed the second appeal as time barred and the first on the ground that the judgment in the appeal by the defendants Nos 5 to 8 operated as res judicata
The plaintiffs then filed two appeals to the Judicial Committee of the Hyderabad State and ultimately they were disposed of by this Court in view of article 3744 of the Constitution
The plaintiffs had impleaded all the defendants as respondents in their first appeal to the High Court
They had paid the full court fee necessary for an appeal against the dismissal of the entire suit
Their prayer covered both the appeals
This indicated that it was sought to be an appeal against the dismissal of the entire suit
It is not clear whether the common judgment passed by the first appellate Court specifically stated that it dismissed the plaintiffs suit with respect to one third of the plot by its order allowing one appeal and dismissed the suit with respect to the other one third by its order allowing the second appeal
Possibly it just said that as a result of its finding the appeals are allowed and the plaintiffs  suit is dismissed and that such an order led the plaintiffs to actually file one appeal against all the defendants and against the dismissal of the entire suit
The prayer in the first appeal covered the subject matter of both the appeals
Thus the first appeal was really a consolidated appeal against the decrees in both the appeals and could have been split up for the purposes of record into two separate appeals
This Court itself felt that the circumstances of the case were such that the High Court should have allowed the benefit of section 5 of the Limitation Act to the appellant
766 It was in these circumstances that this Court observed at page 757  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
 This does not mean that whenever there be more than one appeal arising out of one suit only one appeal is competent against the order in Any
of those appeals irrespective of the fact whether the issues for decision in those appeals were all common or some were common and others raised different points for determination
The existence of one finding and one decision mentioned in this observation simply contemplates the presence of common points in all the appeals and the absence of any different point in those appeals and consequently of one decision on those common points in all the appeals
This Court further observed at page 758 The question of res judicata arises only when these 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
 These observations do not apply to cases which are governed by the general principles of res judicata which rest on the principle that a judgment is conclusive regarding the points decided between the same parties and that the parties should not be vexed twice over for the same cause
We are therefore of opinion that both in view of the facts of the case and the provision of law 767 applicable to that case that case can be no guide for determining the question before us in this appeal
It is true that both the appeals Nos 7 and 8 before the High Court arose out of one proceeding before the Election Tribunal
The subject matter of each appeal was however different
The subject matter of appeal No 7 filed by the appellant related to the question of his election being bad or good in view of the pleadings raised before the Election Tribunal
had nothing to do with the question of right of respondent No 1 to be declared as duly elected candidate
The claim on such a right is to follow the decision of the question in appeal No 7 in case the appeal was dismissed
If appeal No 7 was allowed the question in appeal No 8 would not arise for consideration
The subject matter of appeal No 8 simply did not relate to the validity or otherwise of the election of the appellant
It related to the further action to be taken in case the election of the appellant was bad on the ground that a Ghatwal holds an office of profit
The decision of the High Court in the two appeals though stated in one judgment really amounted to two decisions and not to one decision common to both the appeals
It is true that in his appeal No 8 the respondent No 1 had referred to the rejection of his contention by the Election Tribunal about the appellant and respondent No 2 being holders of an office of profit
He had to challenge the finding on this point because if he did not succeed on it he could not have got a declaration in his favour when respondent No 2 was also in the field and had secured a larger number of votes
He could however rely on the same contention in supporting the order of the Election Tribunal setting aside the election of the appellant and which was the subject matter of Appeal No 7
This contention was considered by the High Court in Appeal No 7 in that context and it was therefore that even though the 768 High Court did not agree with the Election Tribunal about the appellant s committing a corrupt practice it confirmed the setting aside of his election on the ground that he held an office of profit
The finding about his holding an office of profit served the purpose of both the appeals but merely because of this the decision of the High Court in each appeal cannot be said to be one decision
The High Court came to two decisions
It came to one decision in respect of the invalidity of the appellants election in Appeal No 7
It came to another decision in Appeal No 8 with respect to the justification of the claim of respondent No 1 to be declared as a duly elected candidate a decision which had to follow the decision that the election of the appellant was invalid and also the finding that respondent No 2 as Ghatwal was not a properly nominated candidate
We are therefore of opinion that so long as the order in the appellant s appeal No 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated candidate stands he cannot question the finding about his holding an office of profit in the present appeal which is founded on the contention that finding is incorrect
We therefore accept the preliminary objection and dismiss the appeal with costs
Appeal dismissed


Summary:
The Election Tribunal on the petition of the first res pondent set aside the election of the appellant holding that the appellant as a Ghatwal was not a holder of office of profit and t hat he was guilty of corrupt practices
The Election Tribunal however did not entertain the first respondent s prayer to declare him as duly elected
The  appellant and the first respondent both went up in appeal to the High Court
Appellants appeal being No  7 was against the order setting aside his election
The first respondent s appeal being No 8 was against the order not declaring him to be duly elected
Both the appeals were disposed of by the High Court by one judgment
The appellant s appeal No 7 was dismissed holding that the appellant was not guilty of corrupt practices and that be as a Ghatwal held an office of profit
The respondent s appeal No 8 was allowed declaring him as duly elected
Two separate decrees were prepared in the two appeals
The appellant filed this appeal by special leave from the order in Appeal No 8 by the first respondent
All the grounds of the appeal related to the finding of the High Court that the office of Ghatwal was an office of profit
A preliminary objection was taken on behalf of the first respondent that this appeal was incompetent as barred by the principle of res judicata inasmuch as the appellant did not appeal against the order of the High Court in Appeal No 7 whose dismissal by the High Court confirmed the order of the Election Tribunal setting aside the election of the appellant and that it was not open to the appellant to question the correctness of the finding that he held an office of profit which was the basis of the dismissal of appeal No 7
Held that where two appeals arose out of one proceeding but the subject matter of each appeal was different the 760 decision of the High Court in the appeals though stated in one judgment really amounted to two decisions and not to one derision common to both the appeals
The subject matter of Appeal No 7 filed by the appellant related to the question of his election being bad or good
The subject matter on appeal No 8 did not relate to the validity or otherwise of the election of the appellant
It related to the further action to be taken in case the election of the appellant was bad on the ground that  a Ghatwal holds an office of profit
The High Court came to two decisions one in respect of the invalidity of the appellant s election in appeal No 7
It came to another decision in appeal No 8 with respect to the justification of the claim of the first respondent to be declared as a duly elected candidate
That so long as the order in the appellant s appeal No 7 confirming the order setting aside his election on the ground that he was a holder of an off ice of profit stands he cannot question that finding in the present appeal preferred against the decree in the first respondent s appeal No 8
Narhari vs Shankar   distinguished