JUDGMENT
Srinivasan, J.
1. The defendant is the appellant. This appeal is directed against the decree in O.S. No. 2259 of 1983 on the file of the VII Assistant Judge, City Civil Court, Madras. That suit was tried along with another suit filed by the appellant herein in O.S. No. 6970 of 1982. It was an earlier suit. The present respondent was the defendant in that suit. The two suits were tried together and disposed by a common judgment. There is no appeal against the judgment and decree in O.S. No. 6970 of 1982.
2. The respondent claims title to the property under a sale deed dated 13.7.1979 marked as Ex. A-1. According to the appellant, that sale deed was sham and nominal and the title was with himself. On that footing he filed O.S. No. 6970 of 1982 for permanent injunction restraining the defendant from interfering with his possession. As he rested his claim on his title, an issue was framed on the question of title. The first issue was whether the sale deed in favour of the defendant was fictitious. In the suit out of which this appeal arises, the respondent prayed for recovery of possession of property and also damages. In this suit also, issue was framed relating to the title to the property. The court below has found that the sale deed is an operative one and title had passed under that sale deed. Consequently, the court below dismissed the suit filed by the appellant and decreed the suit filed by the respondent. A preliminary objection is raised that the present appeal is barred by res judicata in view of the finality of the judgment and decree in O.S. No. 6970 of 1982. The position has been considered in several cases by this Court. Vide: Thangavelu Kounder v. Venkatarama Kounder (1988)2 L.W. 14, M. Subramanian v. C. Chottabhai and Company (1990)1 L.W. 182 and Arumugha Nainar v. Lakshmana Perumal (1992)1 M.L.J. 457. It has been held in all those cases that once a decree has become final that will operate as res judicata, vis-a-vis an appeal against another decree in another suit even if the judgment in both the suits are common. The principle is, once a decree is passed on the basis of title to the property and that decree has become final, there cannot be a conflicting decree in the pending appeal. Thus, the pending appeal will be affected by the decree which has already become final. The relevant judgments of the Supreme Court have been referred to in those cases and followed.
3. Learned Counsel for the appellant contends that the suit filed by him was only for injunction and a decree could be passed in that suit on the basis of his possession and there is no necessity for considering the question of title. But, in the present case, as pointed out already, an issue was framed in that suit also on the question of title and it was found against the appellant herein. The basis of the plaint in the other suit was itself the title to the property and not merely possession.
4. A Bench of this Court has considered the question whether a finding in a suit for injunction would operate as res judicata in S. Kurshid Begum alias Basil v. S. Ajaram Bi alias Hazaram Bibi (1992)2 L. W. 81. In that case, there was no issue in the injunction suit relating to title. But, the Bench found that there was discussion on the question of title and a finding was given. Hence, the Bench held that the decision in the other suit would operate as res judicata. The relevant observation is found in the following passage:
Taking the above referred to question of res judicata the court below has held that in view of the earlier suit O.S. No. 645 of 1977 being an injunction suit, its decision cannot operate as res judicata to the present suit. The earlier suit was filed by the defendants 1 and 2 herein against the 2nd plaintiff herein (and not the 1st plaintiff herein also) praying for a permanent injunction restraining him from interfering with the possession of the suit property by defendants 1 and 2 herein. No doubt, there was only one issue in the said suit, viz. whether the plaintiffs are entitled to injunction as prayed for? But, the learned Counsel for the appellant relied on a very recent decision reported in C. Animuganathan v. S. Muthusamy and Ors. (1991)1 L.W. 63, wherein it has been held that the decision given in a suit for bare injunction also can operate as res judicata to a latter suit based on title, if the question of title was directly and substantially in issue in the former suit. No doubt in the former suit, viz. O.S. No. 645 of 1977 there as no specific issue regarding title. However, in the written statement herein there was a specific denial of title of the plaintiff therein. It was specifically alleged therein what the abovesaid settlement deed dated 30.6.1967 was void and the plaintiffs therein had nothing to do with the suit properties. On the abovesaid defence plea taken, the court in the said suit, went into the question of title also and upheld the validity of the said settlement deed. Therefore, we think that the said decision would operate as res judicata to the present suit….
5. Hence, the contention of learned Counsel cannot be accepted. Consequently, we hold that this appeal is barred by the principle of res judicata in view of the finality of the decree and judgment in O.S. No. 6970 of 1982 as between the same parties.
6. The appeal fails and it is dismissed. There will be no order as to costs. The appellant will pay the court-fee due on the memorandum of appeal.