Case: Lakshminarain Bhadani Vs. C.I.T. Bihar & Orissa

R.S. Naik, J.(1) The suit out of which these appeals arise was one for possession of two-thirds of the land covered by survey No. 214 and for mesne profits. The plaintiffs claim possession on the ground that survey No. 214 was an inam land and according to the family custom, belonged to them exclusively as members of the senior line as against the defendants who were of the junior lines. There are two sets of defendants; Nos. 1 to 4 belong to one branch of the family and Nos. 5 to 8 to another. Each set claim that they are in possession of onethird of the land and maintain that they are entitled to it as their share of the family property. They deny the custom of exclusive possession by, the senior branch, alleged by the plaintiffs. The trial court decreed the suit. From this decree, two separate appeals were taken by the two sets of the defendants to the Sadar Adalat, Gulbarga, each claiming onethird portion of the land and each paid the court-fee to the extent of their share. The first appellate court, i.e., the Sadar Adalat, allowed both the appeals and dismissed the plaintiffs suit by one judgment dated 30th Bahman 1338 fasli and ordered a copy of the Judgment to be placed on the file of the other connected appeal. On the basis of this judgment, two decrees were prepared by the first appellate court. The plaintiffs preferred two appeals to the High Court. The first was filed on 23rd Aban 1345 fasli and with it was attached the decree passed in the appeal of defendant Nos. 1 to4. Later, on 17th Azur 1346 Fasli, another appeal was filed and with it the decree passed in the appeal of defendant Nos. 5 to 8 was attached. This latter appeal was twenty nine days beyond the period of limitation for appeals. It was filed on one-rupee stamp paper and a note was made therein that the full court-fee had been paid in the appeal filed earlier, which has been registered as Appeal No. 331 of 1346 fasli. At the hearing of the appeals, a preliminary objection was raised by the defendants that as the other appeal, i.e. No. 332 of 1346 Fasli was filed beyond the period of limitation, it cannot be maintained and that when the other appeal is thus dismissed the principle of res judicata would apply to the first appeal, i.e. No. 331 of 1346 and it should also fail. The High Court held that the plaintiffs should have filed two separate appeals within the period of limitation; as the other appeal was admittedly time-barred, the first appeal also failed by the application of the principle of res judicata. The High Court dismissed both the appeals. Against this judgment of the High Court two appeals were preferred to the Judicial Committee of the State and they are now before us under Art. 374(4) of the Constitution.(2) The High Court in its judgment relied on the decision given in - Jethmal v. Ranglal, 17 Deccan LR 322. That was a case of a money suit where the plaintiffs claim was partially decreed and from this judgment both the parties had appealed, the plaintiff to the extent of the suit dismissed and the defendant to the extent of the suit decreed. The first appellate court dismissed the plaintiffs suit in toto thus allowing the defendants appeal and dismissing the plaintiffs appeal, and two separate decrees were made. The plaintiff appealed from one decree only which was passed against him and it was held that the principle of res judicata applied.(3) Notwithstanding this ruling of the Judicial Committee of the State, the High Court in several cases, i.e., - Nandlal v. Mohiuddin Ali Khan. 22 Deccan LR 100 ; - Nizamuddin v. Chatur Bhuj, 23 Deccan LR 457 ; Gayajee Pant v. Habibuddin, 28 Deccan LR 1094 and -Jagannath v. Sonajee, 29 Decean LR 108 , has held that when the suit is one and two appeals arise out of the same suit, it is not necessary to file two separate appeals.(4) In the judgment of the High Court, though reference is given to some of these decisions, it is merely mentioned that the appellant relies of these decisions. The learned Judges perhaps thought that in the presence of the Hyderabad Judicial Committee decision in 17 Deccan L R 322 , they need not comment on these decisions at all. There is also a later decision of the Judicial Committee of the State in -Bansilal v. Mohanlal, 33 Deccan La 603 . where the well known and exhaustive authority of the Lahore High Court in -Mst. Lachmi v. Mst. Bhuli, was followed. In the Lahore case, here were two cross suits about the same subject matter, flied simultaneously between the same parties, whereas in the present case, there was only one suit and one judgment was given by the trial court and even in the first appeal to the Sadar Adalat, there was only one judgment in spite of there being two appeals by the two sets of defendants. The plaintiffs in their appeal to the High Court have impleaded all the defendants as respondents and their prayer covers both the appeals and they have paid consolidated court-fee for the whole suit. 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 , 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 but it can only be created by the Judgement. 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 it 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 of S. 5 of the Limitation Act because there was conflict of decisions regarding this question not only in the High Court if the State but also among the different High Courts in India.(5) The learned counsel for the appellants cited in support of his arguments the decision given in -Appa v. Kachai Bayyan Kutti, which is on all fours with the present case.

Decision reasoning: 1[ds](4) In the judgment of the High Court, though reference is given to some of these decisions, it is merely mentioned that the appellant relies of these decisions. The learned Judges perhaps thought that in the presence of the Hyderabad Judicial Committee decision in 17 Deccan L R 322 , they need not comment on these decisions at all. There is also a later decision of the Judicial Committee of the State in -Bansilal v. Mohanlal, 33 Deccan La 603 . where the well known and exhaustive authority of the Lahore High Court in -Mst. Lachmi v. Mst. Bhuli, was followed. In the Lahore case, here were two cross suits about the same subject matter, flied simultaneously between the same parties, whereas in the present case, there was only one suit and one judgment was given by the trial court and even in the first appeal to the Sadar Adalat, there was only one judgment in spite of there being two appeals by the two sets of defendants. The plaintiffs in their appeal to the High Court have impleaded all the defendants as respondents and their prayer covers both the appeals and they have paid consolidated court-fee for the whole suit. 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 , 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 but it can only be created by the Judgement. 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 it 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 of S. 5 of the Limitation Act because there was conflict of decisions regarding this question not only in the High Court if the State but also among the different High Courts inThe learned counsel for the appellants cited in support of his arguments the decision given in -Appa v. Kachai Bayyanwhich is on all fours with the present case.