1. This second appeal has to be disposed of on a very short ground. The appellant filed O.S No. 94 of 1976 against one Lakshmana Perumal for declaration of his title and recovery of possession of the suit property. The defendant, Lakshmana Perumal, filed a suit O.S No. 111 of 1976 for declaration of his title and injunction restraining the appellant from interfering with his possession. Both the suits were tried together. The trial Court by its judgment dated 12th September, 1979 upheld the title of the appellant and negatived the claim of the defendant Lakshmana Perumal. He held categorically that the appellant had title to the suit property.
2. The aggrieved defendant Lakshmana Perumal filed only one Appeal A.S No. 161 of 1979 on the file of the Additional Subordinate Judge Tuticorin against O.S No. 94 of 1976. He did not file any appeal against O.S No. 111 of 1976. Thus, the decree and judgment in O.S No. 111 of 1976 became final.
3. The appellate Court rejected the contention raised by the appellant herein that the appeal was barred by res judicata. According to the appellate Court, as the judgment was a common one, it did not reach finality, with the result the appellate Court went into the question of title and found in favour of Lakshmana Perumal holding against the appellant herein. The aggrieved appellant had preferred this second appeal. Lakshmana Perumal died during the pendency of the appeal and his legal representatives have come on record as respondents 2 to 6.
4. There is no dispute whatever that the appeal filed by Lakshmana Perumal before the Additional Subordinate Judge, Tuticorin was barred by res judicata. The decree in O.S No. 111 of 1976 has become final. That was on the basis that the appellant herein had title to the property.
5. When there was a decree already by the trial Court, which was final on the footing that the appellant herein had title to the property, it was not open to Lakshmana Perumal to contend in the appeal before the lower appellate Court that the appellant had no title to the property. The lower appellate Court is clearly in error in rejecting the plea of res judicata.
6. The question has been considered by, Ratnam J. in Thangavelu Kounder v. Venkatarama Kounder, (1988) 2 LW 14 (SN). The relevant passage in the judgment read thus:
“It was pointed out by the Supreme Court that where there are two suits and the decree in one of the suits had become final, the issues decided therein, could not be reopened in the second appeal filed against the decree passed in an appeal arising out of another suit. The Supreme Court had also laid down that even when appeals are disposed of by a common judgment, the decision in that judgment, may amount to two decisions, and the failure of a party to challenge the decision in one, would operate as res judicata as it had not been appealed against. Apart from this, the Supreme Court has also recognised that a final decision in a suit, though instituted subsequently, may operate as res judicata in a pending appeal, on the footing of a decision of in a former suit. This principle does not appear to be confined in its application to independently instituted suits, but can be applied even in the case of a common judgment. If two suits are tried together and a common judgment is rendered and separate decree are also drawn up and one of the adjudications is allowed to become final, that adjudication assumes finality on and from the date of its adjudication and in the course of an appeal against the other judgment and decree, the adjudication, which had become final, can be pleaded as res judicata on the ground that the controversy had been finally adjudicated upon”.
7. A similar question arose in M. Subramanian v. C. Chottabhai & Co., (1990) 1 LW 182. Following thejudgments of the Supreme Court, I held that the appeals were barred by the principle of res judicata as there was no appeal against one of the suits disposed of by a common judgment in the Trial Court. The relevant portion of the judgment reads as follows:—
“It was laid down by the Supreme Court that the question whether there is a bar of res judicata does not depend on the existence of a right of appeal of the same nature against each of the two decisions but on the question whether the same issue under the circumstances given in S. 11, has been heard and finally decided. It was observed that the expression “former suit”, according to Explanation I of S. 11, Civil Procedure Code, makes it clear that, if a decision is given before institution of the proceeding which is sought to be barred by res judicata, and that decision is allowed to become final or becomes final operation of law, a bar of res judicata would emerge.
9. In view of the pronouncements of the Supreme Court in the above two cases, there can be no doubt that the present appeals are barred by res judicata. It is not open to the appellants herein to contest the same issues in the appeals when there is a decree against them in O.S No. 346 of 1968 which has become final and conclusive. The argument of learned counsel for the appellants that there should be a confirmation of the decree of the trial Court by an appellate Court in order to constitute res judicata is without any substance.”
8. As the appeal before the Additional Subordinate Judge filed by Lakshmana Peru-mal was barred by res judicata, the Additional Subordinate Judge was not entitled to consider the merits of the case. The findings given by him on the merits are unsustainable. Consequently, the judgment and decree of the lower appellate Court in A.S 161 of 1979 are set aside and the judgment and decree passed by the District Munsif, Srivaikuntam in O.S No. 94 of 1976 and restored. The Second Appeal is allowed. But, in the circumstances of the case, there will be no order as to costs.
9. Appeal allowed.