LONANKUTTY

THOMMAN & ANOTHER

April 15, 1976

[Y. V. CHANDRACHUD, V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.]

Civil Procedure Code, s. 11, Res judicata, scope of-Co'mmon iudg111ent in cross appeals from two suits on identical questions-Second appelll from only one suit, whether barred by res judicata.

Practice and procedure-Remanding judgment not appealed against, whether challen1reab/e in appeal from final decision. ,

Two suits were filed in the trial court, one by the respondents, claiming a prescriptive eament OVeil." the appellant's land for the ingress and egress of water, -for agriculture and prawn fishing, and the other by the appellant, seeking to restrain the respondents from using his land for the above purposes.

Due to the time-lag between their respective institution, the two suits, although involving common questions, were tried and disposed of separately.

The respondents' easementary right was upheld in regard to agricultural user but not for prawn fishing.

Cross appeals were filed by the parties against both the decrees, ; i.nd the Subordinate~ Judge dismissed all the appeals confirming the decrees by a common judgment. Neither side challenged the decrees in appeals arising from the respondents' suit, but the respondents moved the High Court against the decree in appeals arising from the appellant's suit. The second appeal was contested on the ground that it ¥.ras barred by res ; udicata, as the qu"6tion in it had already been finally decided by the unchallenged decrees in the appeals arising out of the other suit. This contention was rejected and the appeal was remanded for a fresh hearing. The matter was thereafter disposed of on merits by the Subordinate Judge, and the pre-remand view stood confirmed. The High Court a11owed a second appeal by the respondents, up holding their easementary right both for agriculture and prawn fishing.

In appeal therefrom the plea of res iudicata Was raised before this Court, and was contested on the ground that the remanding judgment had not been appealed against, and the contention was, therefore, barred by res iudicata.

F Allowing the appeal, the Court

HELD : ( 1) The appeals filed in the District Court arose out of two different suits, one by the appeliant and the other by the respondents. The failure of the respondents to chaUenge the decision of the District Court in so far as it pertained to their suit, attracts the application of section 11, ExpJanatio!1 I, Civil Procedure Code, because to the extent to which the District Court decided issues arising in the respondents' suit against them, that decision \VOU]d operale

as res judicata since it v; ras not appealed against.

[81A-B]

Sheodan Singh v. Smt. Daryao Kunwar [1966] 3 S.C.R. 300; Badri '!•larayan SinRh v. Kamdeo Prasad Singh & Anr. [1962] 2 SCR 759, referred to.

Narhari v. Shanker [1950] SCR 754, distinguished.

(2) The circumstance that the remanding judgment of the High Court was not appealed against, assuming that an appeal lay therefrom. cannot preclude the appellant from cha1lenging the correctness of the view taken by the High Court in that judgment. [81 DE]


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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1283 of A 1973

(Appeal by special leave from the judgment and order dated the 8.4.1971 of the Kerala High Court in S. A. No. 1190/65)

D. V. Patel and A. S. Nambiar, for the appellant.

T. C. Raghavan and S. Balakrishnan, for respondents.

The Judgment of the Court was delivered by

CHANDRACHUD, J.-This 22-year old litigation concerns the right of two adjacent owners to catch prawns on their respective lands .

Survey No. 673 of Kadamkudi, District Ernakulam, measuring about 11 acres originally belonged to the Cochin Government but by C 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 D 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 E of survey No. 673 belong to the respondents : T'homman 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 respondent's 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 becaus~, for prawn-fishing it is necessary that the rrver-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 appellant's 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 with 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. the parties.

This is the genesis of the dispute between

The appellant filed Civil Suit No. 666 of 1954 against the respondents for a perpetual injunction restraining them from !Clking wr 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 olose the sluice gates. The appellant disputed the right claimed by the respondents in its entirety, contending that they had no right to the flow of water either way for either purpose-fishing or agriculture.

The respondents 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 1ight for fishing as well as for agricultural purposes.

Both the 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 September 20, 1957 the learned Munsiff decreed the appellant's 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 appellant's land nor to discharge the water back t!hrough 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 agricultural season.

The suit filed by !he 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 appellant's suit, he dismbsed

the respondent's 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 appellant's 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 pn 15th Vrischigam of each year.

From the decree passed in the appellant's suit, two cross-appeals werll 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 of 1958.

Similarly, two cross-appeals were filed by the parties as against the decree paBsed 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 Trial Court.

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No further appeal was filed by either side fro mthe decrees passed by the learned Subordinate Judge in Appeal~ Ns. 1 of 1959 and 17 -0f 1959, which arose out of the respondents. smt.

But respondents filed a Second appeal in the High Court agamst the decree assed 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 Noc 1149 of 1960.

Before the High Court it was contended on .bealf of the espoi: dents that the subordinate Judge had faded to consider the entire evidence in the case and therefore his judgment Was vitiated. On the other hand, the appellants, w)lo were defendii:g the.judgments of the Subordinate Judge, contended. that the quest10n 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 appellant's contention of res judica/a was rejected by the learned Judge on the ground that since in the four appeals the Subordinate Judge had passed only one judgment aud 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 Court's 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 appellant's 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 appellant's suit.

Thus the view taken in the judgment before remand stood confirmed after remand on a further consideration of evidence in the case.

Respondents filed Second Appeal No. 1I90 of I 965 against the Subordinate Judge's 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 appellant's 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 appellant's suit (No. 666 of 1964), giving rise to this appeal by special leave.

Learned_ counsel appearing on behalf of the appellant contends that the High Court exceeded its jurisdiction in interfering with the findings of fact recorded by the Subordinate Judge and that it had overlooked certain fundamental principles of law while adjudicating upon t!he prescriptive claim made by the respondents.

It is unnecessary to go into these questions because another submission made on behalf of the appellant goes to the root of the matter and if that submission is accepted, the High Court's judgment would be impossible to sustain. The contention is that the issue as regards the respondents" right to the flow of water through the appellant's land for fishing purposes is barred by res judicata, and t!herefore, the High Court could not try and decide that issue in the Second Appeal which came before it.

This contention is well-founded and must be accepted. By section 11, Code of Civil Procedure, in so far as relevant, no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided.

Explanation I to the section provides that the expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

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 ne.cessary that it must have been in issue 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 the ot!her.

In the instant case, two suits were filed in the trial court : one by the appellant and the other by the respondents.

The plaintiff in the first suit was the defendant in the second suit while the defendants in the first suit were plaintiffs in the second.

To particularize in the interests of clarity, appellant who was plaintiff in the earlier suit (No. 666 of 1954 was the defendant in the later suit (No. 5 of 1957).

Respondents who were plaintiff in suit No. 5 of 1957 were defendants in suit No. 666 of 1954.

In the appellant's suit, the trial Court framed the following issues for decision in so far as relevant :

"1. Whether the defendants have trespassed into the north-eastern boundary of the plaint schednle property and have begun construction of a bund there as alleged in para 3 of the plaint ?

2. How long has the bund on the western boundary of S. No. 672 been in existence?

3. Whetlher defendants 1 to 3 have acquired any right of ea11ement over the plaint schedule properties as contended for in paras 4 and 5 of the written statement?

4. Whether the defendants enjoyed such a right against

schedule properties as owners and occupiers of S. Nos.

f -

...

672 and 667 openly as of right and continuously A and for the prescribed period?

5. Whether defendants 1 to 3 have no out-let for water from S. Nos. 667, 672, 655, 670 and 671 other than through the plaint schedule properties?

6. Whether the right to let in and let out water for purpose of prawn-fishing operation is a right of easement B capable of being acquired in law?

7. Whether the plaintiff is entitled to the injunction prayed for?"

In the respondents' suit the following issues were framed :

"1. Whether the plillltiffs have got any easement right

to let in and let out water from the plaint A schedule properties through B schedule property?

2. Whether the defendant can obstruct that right if any, by putting up a bund?

3. Whether the plaintiffs are entitled to the iniunction prayed for?" D

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 the 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 E 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 respondent's easement right limited to agricultural purposes during the agricultural season.

Each party being partly aggrieved by both the decrees, each filed F an appeal in the District Court against the two decrees.

The learned - Subordinate Judge, sitting in appeal, had thns 4 appeals before him, 2 arising from each suit.

He confirmed the decrees under appeal and • dismissed all 11he appeals. ).

Respondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of their suit.

G They filed a Second Appeal in the High Court, only as against the decree passed by the District Court in A. S. 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 rendered in t:he appeal arising 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 H whether respondents had the easementary right to the flow of water through the appellant's land for fislhing purposes was directly and substantially .in issue in the respondent's 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 "as given in an appeal arising out of a suit, which though instituted subsquently,

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 1, 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.

The High Court in its judgment dated April 8, 1971 assumed wrongly that suit No. 666 of 1954 filed by the appellant and suit No. 5 of 1954 filed by the respondents were "originally disposed of. by a common judgment".

They were not.

The appellant's suit was disposed of by a judgment dated September 20, 1957 while the respondents' suit was disposed of by a judgment dated October 11. 1958.

Naturally, 2 separate decrees were drawn in the 2 suits and those decrees gave rise to 4 cross-appeals, 2 from each suit.

In its remanding judgment dated July 8, 1964 by which the plea of res judicata was repelled, the High Court relied principally on the decision of this Court in Narhari v. Shanker('). That decision is in our opinion distinguishable because in that case only one suit was filed giving rise to 2 appeals.

A filed a suit against B and C which was decreed.

B and C preferred separate appeals which were allowed by a common judgment, but the appellate court drew 2 separate decrees.

A preferred an appeal against one of the decrees only and after the period of limitation was over, he preferred an appeal against the other decree on insufficient conrt-fee.

The High Court held that A should have filed 2 separate appeals and since one of the appeals was timebarrcd, the appeal filed within time was barred by res judicata.

This Court held that "there is no question of the application of the principle of res judicata", because "When there is only one suit, the question of res judicata does not arise at all".

This was put on the ground 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." In our 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 decree passed in an appeal arising out of another suit.

This precisely is the ground on which Narhari's case was distinguished by this Court in Sheodan Singh v. Smt. Daryao Kunwar( 2 ). It was held therein that where the trial court has decided 2 suits having common issues on the merits and there are two appeals therefrom the decision in one appeal will operate as res judicata in the other appeal.

The circumstance 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

(1) [1950] S. C. R. 754.

(2) [1966] 3 S. C. R. 300,

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 sti11 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 add 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.,(') 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 appea:l 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 therefrom, cannot preclude the appellant from challenging the correctness of the view taken by the High Court in that judgment.

In view of our decision that the contention raised by the respondents is ban-ed by res judicata, it must be held that the High Court was in en-or in allowing the respondents' appeal and acceptin~ his contention. Accordingly, we allow this appeal, set aside the judgment of the High Court and restore that of the District Court. In the circumstances, there will be no order as to costs.

- We would like to state by way of clarification that our judgment will not affect the respondents' right to the flow of water through the appellant's land for agricultural purposes from 15th Meenam to I 5th _;.

Vrischigam every year.

M.R.

(1) [!9621 3 S. C. R. 759.

\1) \1%1){ 1 S. C.R. 590.

8-833 SCI/76

Appeal allowed.