http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

(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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

   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