Case: Lonankutty Vs. Thomman &amp; Another

This 22-year old litigation concerns the right of two adjacent owners to catch prawns on their respectiveNo. 673 of Kadamkudi, District Ernakulam, measuring about 11 acres originally belonged to the Cochin Government but by diverse transfers the title thereto is now vested in the appellant, Lonankutty. The land is bounded on the West and South by a river. A portion of the land on the North-East can be put to agricultural use for a part of the year but the land, by and large, is water-logged and can profitably be used for prawn-fishing. In order to make fishing feasible, the appellant has constructed a bund on the western side of the land for arresting the flow of the river water. The contrivance is calculated to permit collection of water on the land, almost to the point of submerging it. The prawns enter the land with the high tide, they breed and multiply on the land, and the water while receding leaves the prawns behind. The appellant then catches them, presumably under a licence from the Government of Kerala.Survey Nos. 672, 677, 655/4 and 670 which sprawl on all sides of survey No. 673 belong to the respondents: Thomman and his mother Annam. We are concerned with the prescriptive rights claimed by them in respect of survey No. 672 which is situated towards the north-east of survey No. 673. Survey No. 672 is almost landlocked and between it and the river on the south stands the vast expanse of survey No. 673 belonging to the appellant.Prawns have an export value and catching them is so much more profitable than growing food-crops. But the respondents land being land-locked, they have no direct access to the river on the west or the south. They cannot therefore do any fishing operations because, for prawn- fishing it is necessary that the river-water must enter their land, and collect on it so that after the prawns have bred, the water can be released back to the river. For achieving this result, respondents constructed a bund with sluice-gates on the border between their land and survey No. 673. Their case is that they have a prescriptive easement to take water from the appellants land and to divert it back through the same land, both for fishing and agriculture. The appellant has grave objection to permitting the respondents to engage thus in prawn-fishing because along wit h the water which would pass from his land (survey No. 673) to the respondents land (survey No. 672), prawns also would pass. And when the water would be released back from survey No. 672 through the sluice gates, survey No. 673 would get flooded, carrying back the prawns left on his land, to the river on the south. This is the genesis of the dispute between the parties.The appellant filed Civil Suit No. 666 of 1954 against the respondents for a perpetual injunction restraining them from taking water from survey No. 673, from discharging the water back through survey No. 673 and for a mandatory injunction directing them to demolish the bund and close the sluice gates. The appellant disputed the right claimed by t he respondents in its entirety, contending that they had no right to the flow of water either way for either purpose- fishing orrespondents filed Civil Suit No. 5 of 1957 for an injunction restraining the appellant from trespassing on the bund constructed by them and for preventing the appellant from interfering with their right to take water from Survey No. 673 and to discharge the water back through that land. Respondents claimed this prescriptive right for fishing as w ell as for agriculturalthe suits were instituted in the court of the Munsiff of Cochin but in view of the time-lag between their respective institution, they were tried and disposed of separately. By a judgment dated Sept ember 20, 1957 the learned Munsiff decreed the appellants suit (No. 666 of 1954) partly, granting an injunction against the respondents to the effect that they had no right to take water from the appellants land nor to discharge the water back through that land for the purposes of prawn-fishing. The learned judge, however, expressly upheld the respondents easementary right to the two-way flow of water from and through the appellants land for agricultural operations during the agriculturalsuit filed by the respondents (No. 5 of 1957) was disposed of by the learned Munsiff by a judgment dated October 11, 1958. Consistently with the decree passed in the appellants suit, he dismissed the respondents suit in so far as it related to the fishing rights claimed by them but decreed it to the extent of the right claimed by them in regard to agricultural user. Briefly, the result of the decrees passed in the two suits was that the respondents could take water from the appellants land and discharge water back through that land for agricultural purposes only and during the agricultural season which begins on the 15th Meenam and ends on 15th Vrischigam of each year.From the decree passed in the appellants suit, two cross-appeals were filed in the court of the learned Subordinate Judge, Ernakulam, the appeal filed by the appellant being A. S. 64 of 1956 while that filed by the respondents being A. S. 66 o f 1958. Similarly, two cross- appeals were filed by the parties as against the decree passed by the trial court in the suit filed by the respondents, A. S. 1 of 1959 being the one filed by the respondents while A. S. 17 of 1959 being the one filed by the appellant. Since these four appeals involved common questions for decision the learned Subordinate Judge heard them together and disposed them of by a common judgment dated January 28, 1960. The learned Judge dismissed all the appeals and confirmed the decrees passed by the Trialfurther appeal was filed by either side from the decrees passed by the learned Subordinate Judge in Appeals Nos. 1 of 1959 and 17 of 1959, which arose out of the respondents suit. But respondents filed a Second appeal in the High Court against the decree passed by the learned Subordinate Judge in appeal No. 66 of 1958 which arose out of the decree passed by the trial court in the suit filed by the appellant. That was Second Appeal No. 1149 ofthe High Court it was contended on behalf of the respondents that the subordinate Judge had failed to consider the entire evidence in the case and therefore his judgment was vitiated. On the other hand, the appellants, who were defending the judgments of the Subordinate Judge, contended that the question raised by the respondents in their Second Appeal was barred by res-judicata as the decrees passed by the Subordinate Judge in appeals arising out of the respondents suit had become final, not having been appealed against. A learned single judge of the High Court, by his judgment dated July 8, 1964 accepted the first of these contentions, set aside "the judgment and decree of the Subordinate Judge which was under appeal" and remanded the appeal for a fresh hearing. The appellants contention of res judicata was rejected by the learned Judge on the ground that since in the four appeals the Subordinate Judge had passed only one judgment and one decree, it was enough for the respondents to file one appeal in which they could challenge every one of the findings recorded against them.On remand, the appeals were heard by another Subordinate Judge before whom the appellant, once again and with some impropriety, pleaded the bar of res judicata. Impropriety, because the High Court having rejected that plea by its remanding judgment, the court of remand-the Subordinate Judge-was bound by the High Courts decision on the question of res judicata. Apparently, the learned Subordinate Judge was in a doubting disposition and he expressed his reaction favourably by observing that the appellants contention of res judicata was plausible. But very rightly, he proceeded to dispose of the matter on merits as directed by the High Court. By his judgment dated December 22, 1964 he dismissed A. S. 66 of 1958 which was filed by the respondents against the decree passed by the Trial Court in the appellants suit. Thus the view taken in the judgment before remand stood confirmed after remand on a further consideration of evidence in thefiled Second Appeal No. 1190 of 1965 against the Subordin ate Judges judgment, which was allowed by a Division Bench of the Kerala High Court on April 8, 1971. The High Court held that the respondents had a right to the flow of water through the appellants land not only for the purposes of agriculture but for the purposes of prawn-fishing also. Appellant raised once again the plea of res judicata but it was rejected on the ground, rightly, that the plea was concluded by its remanding judgment. In the result, the High Court dismissed the appellants suit (No. 666 of 1964), giving rise to this appeal by special leave.

Reasoning: The only other aspect of the rule of res judicata which on the facts before us must be borne in mind is that it is not enough to constitute a matter res judicata that it was in issue in the former suit. It is further necessary that it must have been in is sue directly and substantially. And a matter cannot be said to have been "directly and substantially" in issue in a suit unless it was alleged by one party and denied or admitted, either expressly or by necessary implication, by theour case, here were 2 suits and since the appellate decree in one of the suits had become final, the issues decided therein could not be re-opened in the Second Appeal filed against the decre e passed in an appeal arising out of another suit. This precisely is the ground on which Narharis case was distinguished by this Court in Sheodan Singh v. Smt. Daryao Kunwar. It was held therein that where the trial court has decided 2 suits having common issues on the merits and there are two appeals there from the decision in one appeal will operate as res judicata in the othercircumstance that the District Court disposed of the 4 appeals by a common judgment cannot affect the application of section 11 because as observed in Badri Narayan Singh v. Kamdeo Prasad Singh and Anr., (1) even where 2 appeals arise out of one proceeding and even if the appeals are disposed of by a common judgment, the decision in that judgment may amount to 2 decisions and not to one if the subject-matter of each appeal is different. The case before us is stronger still for the application of section 11 because the appeals filed in the District Court arose not out of one proceeding but out of 2 different suits, one by the appellant and the other by the respondents. The failure of the respondents to challenge the decision of the District Court in so far as it pertained to their suit attracts the application of section 11 because to the extent to which the District Court decided issues arising in the respondents suit against them, that decision would operate as res judicata since it was not appealed against.It is necessary to ad d that the decision rendered by the High Court by its judgment of remand dated July 8, 1964 in Second Appeal No. 1149 of 1960 that the contention raised by the respondents is not barred by res judicata can be re-opened in this appeal against the final judgment of the High Court. The decision of this Court in Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr., (2) is directly in point on this question. Relying upon certain decisions of the Privy Council it was held by this Court that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken, could be challenged in an appeal from the final decree or order. Accordingly, the circumstance that the remanding judgment of the High Court was not appealed against, assuming that an appeal lay there from, cannot preclude the appellant from challenging the correctness of the view taken by the High Court in thatview of our decision that the contention raised by the respondents is barred by res judicata, it must be held that the High Court was in error in allowing the respondents appeal and accepting his contention.