Narhari and OT Vs. Shankar & Ors
 INSC 25 (13 October 1950)
MAHAJAN, MEHR CHAND SIDDIQUI KHALILUZZAMAN J.
CITATION: 1953 AIR 419 1950 SCR 754
CITATOR INFO :
D 1962 SC 338 (8) RF 1966 SC1332 (12) RF 1974
Res judicata Several appeals arising out of
same suit--Appeal disposed of by same judgment--Separate decrees drawn
up--Appeal from, one decree only--Maintainability--Res judicata Limitation Act,
1908, s, 5--Extension of time--Sufficient cause --Conflict of decisions.
A instituted a suit for possession of
two-thirds share in an estate against B and C who claimed a one-third share
each in it. The suit was decreed by the trial court. B and C preferred (1)
I.L.R. 25 Mad. 658, 755 separate appeals, These appeals were heard together and
disposed of by the same judgment but separate decrees were prepared. A
preferred an appeal from one of these decrees in time paying the full court fee
and later on, after the period of limitation had expired, preferred an appeal
from the other decree also, paying a court fee of Re. 1 only.
The High Court held that A should have filed
separate appeals within the period of limitation and that, inasmuch as one of
the appeals was time-barred, the first appeal was barred by res judicata.
Held, that, as there was only one suit and
the appeals had been disposed of by the same judgment, it was not necessary to
file two separate appeals and the fact that one of the appeals was time-barred
did not affect the maintainability of the other appeal and the question of res
judicata did not at all arise in the case.
Held further, that in the circumstances the
High Court was wrong in not giving to the appellant the benefit of s. 5 of the
Limitation Act as there was a conflict of rulings on the subject.
Mst. Lachmi v. Mst. Bhuli (A.I.R. 1927 Lah.
289) applied. Appa v. Kachai Bayyan Kutty (A.I.R1932 Mad. 689) referred to.
APPEAL from a judgment of the High Court of
Hyderabad under article 374 (4) of Constitution: Appeals Nos. 22 and 23 of
Ghulam Ahmad Khan, for the appellants.
The respondents were not represented.
1950. October 13. The judgment of the Court
was delivered by NAIK J.--The suit out of which these appeals arise was one for
possession of two-thirds of the land covered by survey No. 2 14 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 one-third 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 one-third
portion of 756 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 F. 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 F. and with it was
attached the decree passed in the appeal of defendants No. 1 to 4. Later, on
17th Azur 1346 F. another appeal was filed and with it the decree passed in the
appeal of defendants Nos. 5 to 8 was attached. This latter appeal was
twenty-nine days beyond the period of limitation for appeals. It was filed on
onerupee 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 F. 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 F. 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 and 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
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 article 374(4) of the Constitution.
The High Court in its judgment relied on the
decision given in Jethmal v. Ranglal(1). That was a case of a money suit where
the plaintiff's 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 (1) 17 D.L.R.322 757 suit decreed. The first
appellate court dismissed the plaintiff's suit in toto, thus allowing the
defendant's appeal and dismissing the plaintiff's 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.
Notwithstanding, this ruling of the Judicial
Committee of the State, the High Court, in several cases, i.e., Nandlal v.
Mohiuddin Ali Khan(1), Nizamuddin v. Chatur Bhuj(2), Gayajee Pant v.
Habibuddin(3), and Jagannath v. Sonajee(4) has held that when the suit is one
and two appeals arise out of the same suit, it is not necessary to file two
In the judgment of the High Court, though
reference is given to some of these decisions, it is merely mentioned that the
appellant relies on these decisions. The learned Judges perhaps thought that in
the presence of the Hyderabad Judicial Committee decision in Jethmal v.
Ranglal(3) 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(6), where the well known and exhaustive authority of the Lahore High
Court in Mst. Lachmi v. Mst. Bhuli (7) was followed. In the Lahore case, there
were two cross suits about the same subject-matter, filed 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.
(1) 22D.LR. 400. (3) 28 D.L.R. 1094. (5) 17
D.LR..322 (2) 93 D.L.R. 457. (4) 29 D.L R 108. (6) 33 D.L.R. 603.
(7) A.I.R. 1927 Lah. 289.
97 758 As has been observed by Tek Chand J.
in his learned judgment in Mst. Lachmi v. Mst. Bhuli(1) 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 judgment. 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 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. 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 section 5 of the Limitation Act because there
was conflict of decisions regarding this question not only in the High Court of
the State but also among the different High Courts in India.
The learned counsel for the appellants cited
in support of his arguments the decision given in Appa v. Kachai Bayyan
Kutti(2), which is on all fours with the present case.
We are, therefore, of the opinion that these
appeals should be allowed and the case remanded to the High Court for decision
on the merits of the case. Costs of these appeals will abide the result of the
(1) A.I.R. 1927 Lah. 289. (2) A.I.R. 1932 Mad. 689.