Lonankutty Vs. Thomman & ANR
 INSC 117 (15 April 1976)
CITATION: 1976 AIR 1645 1976 SCR 74 1976 SCC
Civil Procedure Code, s. 11, Res judicata,
scope of- Common judgment in cross appeals from two suits on identical
questions-Seond appeal from only one suit, whether barred by res judicata.
Practice and procedure-Remanding judgment not
appealed against, whether challengeable in appeal from final decision.
Two suits were filed in the trial court, one
by the respondents, claiming a prescriptive easement over 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, and 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 was barred by res
judicata, as the question 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 allowed a second appeal by the
respondents, upholding their easementary right both for agriculture and prawn
fishing. In appeal therefrom the plea of res judicata 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 judicata.
Allowing the appeal, the Court ^
HELD : (1) The appeals filed in the District
Court arose out of two 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, Explanation I, Civil Procedure Code, 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. [81A-B] Sheodan Singh v. Smt. Daryao Kunwar  3 S.C.R.
300; Badri Narayan Singh v. Kamdeo Prasad
Singh & Anr.
 2 SCR 759, referred to.
Narhari v. Shanker  SCR 754,
(2) 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 that judgment. [81 D-E] Satyadhan Ghosal
& Ors. v. Smt. Deorajin Debi & Anr.
 3 S.C.R. 590, followed.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1283 of 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
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 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 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 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 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, 76 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
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 right
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 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 agricultural season.
The suit 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 appellant's suit, he dismissed
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 on 15th
Vrischigam of each year.
From the decree passed in the appellant's
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 of 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 Trial Court.
77 No further 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 of 1960.
Before the 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 appellant's
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 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 resjudicata 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. 1190 of
1965 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.
78 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 the
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 therefore, the High
Court could not try and decide that issue in the Second Appeal which came
This contention is well-founded and must be
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 necessary 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 other.
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 schedule 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. Whether defendants 1 to 3 have acquired
any right of easement 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.
79 672 and 667 openly as of right and
continuously 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
6. Whether the right to let in and let out
water for purpose of prawn-fishing operation is a right of easement 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
"1. Whether the plaintiffs 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
injunction prayed for?" 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 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 an appeal in the District Court against the two decrees.
The learned Subordinate Judge, sitting in appeal, had thus 4 appeals before
him, 2 arising from each suit. He confirmed the decrees under appeal and
dismissed all the appeals.
Respondents did not file any further appeal
against the decree passed by the District Court in the appeals arising out of
their suit. 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 the 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 whether respondents had the easementary right to the flow of
water through the appellant's land for fishing purposes was directly and
substantially in issue in the respondent's suit. That issue was heard and 80
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 was given in an appeal arising out of a
suit, which though instituted subsequently, 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
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 court-fee. The High Court held that A should have filed 2 separate
appeals and since one of the appeals was time barred, 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. 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 81
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 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.,(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 therefrom, cannot preclude the appellant
from challenging the correctness of the view taken by the High Court in that
In view 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
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 15th Vrischigam every year.
M.R. Appeal allowed.