PETITIONER:
[IN THE SUPREME COURT OF INDIA (HYDERABAD).]NARHARI AND OTHE
Vs.
RESPONDENT:
SHANKAR AND OTHERS.
DATE OF JUDGMENT:
13/10/1950
BENCH:
NAIK R.S.
BENCH:
NAIK R.S.
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 SC1320 (7)
ACT:
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.
HEADNOTE:
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 neces-
sary to file two separate appeals and the fact that one of
the appeals was time-barred did not affect the maintainabil-
ity 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) ap-
plied. Appa v. Kachai Bayyan Kutty (A.I.R- 1932 Mad. 689)
referred to.
JUDGMENT:
APPEAL from a judgment of the High Court of Hyderabad
under article 374 (4) of Constitution: Appeals Nos. 22 and
23 of 1950.
Ghulam Ahmad Khan, for the appellants.
The respondents were not represented.
1950. October 13. The judgment of the Court was deliv-
ered 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 con-
nected 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 one-
rupee 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 dis-
missed, 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 the appeals.
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 plain-
tiff 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 sepa-
rate 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., Nand-
lal 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 separate
appeals.
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 simultane-
ously 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 Ada-
lat, 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 deci-
sion, 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 deter-
mining factor is not the decree but the matter in controver-
sy. 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 ap-
pealed against with a different number or a copy of it was
attached to a different appeal. The two decrees in sub-
stance 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 case.
Appeals allowed.
(1) A.I.R. 1927 Lah. 289. (2) A.I.R. 1932 Mad. 689.
759
