1. This second appeal projects an unusual, exceptional and interesting question of law. Second defendant in O.S 950 of 1959 on the file of the Munsiff's Court, Badagara is the appellant in this second appeal. In order to appreciate the rival contentions some little facts are necessary.
2. A Nair lady by name Unichira had two daughters Kalliani Amma and Kunhi Amma. Third defendant Ammalu Amma is the daughter of Kunhi Amma. Plaintiff and 4th defendant are the sons of the 3rd defendant. Defendants 1 and 2 are the sons of Kalliani Amma. O.S 950 of 1959 was filed by one of the sons of the 3rd defendant for partition. In that suit all the descendants of Kalliani Amma and Ammalu Amma are parties. He claimed partition as if all the properties are the thavazhi properties of himself and all the defendants namely descendants of Kalliani Amma and Ammalu Amma. We are now concerned only with the plaint schedule items 1 to 3 which are plaint schedule items 1 and 4 in O.S 606 of 1955 on the file of the Payyoli Munsiff's Court. That is also a suit for partition which was filed by the 2nd defendant. Plaintiff and 3rd defendant in O.S 950 of 1959 alone are the defendants in that case and they are respectively defendants 1 and 2. That suit was subsequently renumbered as O.S 1257 of 1959.
3. Plaint schedule items 1 to 3 in O.S 950/59 which are items 1 and 4 in O.S 1257/59 were formerly leased out, by the karanavan in favour of Kalliani Amma and her sister's daughter Ammalu Amma (3rd defendant in O.S 950/59). That lease deed was Ext. B7 in O.S 1257/59. By Ext. B14 (in O.S 1257/59) dated 24-4-1954 Kalliani Amma assigned her ½ lease hold right in favour of the 1st defendant in O.S 950/59 without giving anything to the other son, the 2nd defendant. In O.S 1257/59 the claim of the plaintiff (2nd defendant in O.S 950/59) was that the properties are thavazhi properties and Kalliani Amma had no right entitling her to assign her ½ right to the 1st defendant. First defendant supported the assignment and contended that under Ext. B7 his mother had a definite ½ share which was assignable. The trial court held that Ext. B7 lease deed enured to the benefit of the tavazhi and hence Ext. B14 assignment was incompetent. Ignoring Ext. B14 a preliminary decree for partition was passed allowing ½ of the ½ lease hold right of Kalliani Amma to the plaintiff and the other half to the first defendant in that case. Preliminary decree in that case was on 18-12-1959 evidenced by Ext. A1 copy of decree and Ext. A5 copy of judgment. First defendant filed an appeal which was allowed by Ext. A3 judgment dated 3-2-1965. It was held that Kalliani Amma had ½ right over the lease hold under Ext. B7 which was not her thavazhi property. Ext. B14 assignment was upheld. Plaintiff in that case (present appellant who was the 2nd defendant in O.S 950/59) was found not entitled to any right over the ½ lease hold right of Kalliani Amma. The 2nd defendant (plaintiff in O.S 1257/59) therefore came up in second appeal before this Court, but the same was dismissed by Ext. A4 judgment on 18-1-1968. It was found by Ext. A4 also that under Ext. B7 Kalliani Amma and Ammalu Amma were tenants-in-common regarding Ext. B7 lease-hold right. Ext. B14 assignment was held valid and the plaintiff in O.S 1257/59 was found not having any right. Thus, as between defendants 1 and 2 in O.S 950/59 who were respectively 1st defendant and plaintiff in O.S 1257/59 the claim over ½ right of plaint schedule items 1 to 3 was finally concluded. The ½ right of Kalliani Amma was held to belong to the 1st defendant alone and the present appellant was held not having any right over it. There cannot be any dispute on the question that this decision has become final and it is binding on the present appellant also.
4. In O.S 950/59 all the descendants of Kalliani Amma and Ammalu Amma are parties and the entire lease hold right over plaint schedule items 1 to 3 was in dispute. The claim of the plaintiff in that case, who is one of the sons of the 3rd defendant Ammalu Amma, was that there was a common thavazi consisting of the descendants of Kalliani Amma and Ammalu Amma and that the entire lease hold right belongs to such a thavazhi. In opposing that claim defendants 1 and 2 (1st defendant and plaintiff in O.S 1257/59) had a common contention. They contended that the lease hold right belonged in moieties to Kalliani Amma and Ammalu Amma. While the first defendant contended that the ½ right belonged exclusively to Kalliani Amma, the present appellant contended that it belonged to her tavazhi. They had no objection that the other ½ was tavazhi properties of Ammalu Amma (3rd defendant) and as such partible between the members of that tavazhi. The trial court by Ext. A2 judgment dated 31-10-1963 found that the properties are not tavazhi properties and they belonged in moieties to the 3rd defendant Ammalu Amma and Kalliani Amma. But the ½ share of 3rd defendant Ammalu Amma was found belonging to the tavazhi. The further finding was that there was no common tavazhi consisting of the descendants of Kalliani Amma and Ammalu Amma. Only regarding ½ right of Ammalu Amma a preliminary decree for partition was passed in favour of plaintiff and defendant 3 onwards. As regards the other ½ it was found that the ½ right of Kalliani Amma belonged in equal share to defendants 1 and 2. Thus practically there was no conflict between the preliminary decrees passed in O.S 950/59 and O.S 1257/59. It has also to be noted that the preliminary decree in O.S 950/59 was passed long after the preliminary decree in O.S 1257/59.
5. I have already stated that against the preliminary decree in O.S 1257/59 there was an appeal by the present 1st defendant which was allowed as per Ext. A3 on 3-2-1965 upholding Ext. B14 and finding that the ½ lease hold right of Kalliani Amma exclusively belongs to the 1st defendant. Against the preliminary decree in O.S 950/59 also there was an appeal and Ext. A6 is copy of the appellate judgment dated 22-1-1966, which was rendered after Ext. A3 appellate judgment from the decision in O.S 1257/59. Even though in Ext. A3 it was found that Ext. B14 assignment in favour of the 1st defendant is valid and hence the 1st defendant alone is entitled to the ½ right of Kalliani Amma and the 2nd defendant has no right, that decision was not brought to the notice of the court while rendering Ext. A6 judgment. In O.S 950/59 the validity of Ext. B14 assignment was not in question. The main dispute in that case was concerning the respective rights of tavazhies. There is no finding that Ext. B14 (Ext. B4 in O.S 950/59) is valid or not. But the court held that the tavazhi of Ammalu Amma is entitled to ½ and the other ½ belongs in equal shares to defendants 1 and 2. If Ext. A3 appellate decision in O.S 1257/59 was brought to the notice of the court, such a finding would never have been entered. It has further to be noted that the second appeal decision in O.S 1257/59 evidenced by Ext. A4 was on 18-1-1968, long after Ext. A6 appellate decision in O.S 950/59 was rendered on 22-1-1966. While deciding the second appeal under Ext. A4, Ext. A6 judgment was also not brought to the notice of the court. Against Ext. A6 there was no second appeal and it has become final. But Ext. A4 decision is quite contrary to the decision in Ext. A6.
6. Thus now there are two conflicting decisions inter partes in two parallel proceedings. According to the latest decision evidenced by Ext. A4 rendered on 18-1-1968 by this Court, the 1st defendant is the exclusive owner of the ½ right of Kalliani Amma and the 2nd defendant (the present appellant) has no right. But according to Ext. A6 judgment rendered on 22-1-1966 defendants 1 and 2 are equally entitled to the ½ right of Kalliani Amma. There cannot be any dispute regarding the fact that these two decisions in the parallel proceedings cannot exist together. One must definitely give way to the other.
7. Probably the parties were not aware of this embarrassing situation. The two cases were pending before two different courts, both having jurisdiction. When the 1st defendant came to know of this position, he filed I.A 1337/79 in O.S 950/59 for amending the preliminary decree or passing a fresh preliminary decree to make it in conformity with the preliminary decree in O.S 1257/59 which has become final and conclusive between the parties. The petition was filed under O. 20, R. 18 and S. 151 of the Civil P.C The trial court dismissed the petition on the ground that the preliminary decree in O.S 950/59 was appealed against and, superseded and therefore the trial court was not competent to modify the preliminary decree or pass a fresh preliminary decree. The matter was taken up in appeal. The appellate court allowed the petition and passed a revised or supplementary preliminary decree based on the subsequent event namely Ext. A4 decision dated 18-1-1968 in the Second Appeal from the preliminary decree in O.S 1257/59. By the revised preliminary decree it was found that the present appellant is not entitled to any right over the ½ share of Kalliani Amma in items 1 to 3 which are items 1 and 4 in O.S 1257/59. The present Second Appeal is directed against the above said decision.
8. The contention of the appellant is that the preliminary decree has become final and conclusive between the parties, whether the decision is correct or not, and hence the court was not competent to revise it and O. 20, R. 18 does not permit it. It is not disputed that the court can pass any number of preliminary decrees based on subsequent events till the suit is finally disposed of by passing the final decree. But according to the counsel, such a right is not intended to meet situations like this for the purpose of unsettling decisions which have become final and conclusive between the parties. According to the counsel subsequent preliminary decrees modifying the original preliminary decrees contemplated in partition suits are only in certain contingencies where the shares are either augmented or reduced by subsequent events or where the rights are changed by legislations.
9. The appellate court relied on the decision in Phoolchand v. Gopal Lal, AIR 1967 SC 1470. That was a case in which a preliminary decree was passed declaring shares. The father was also given a share. Subsequently, the father died after executing a will bequeathing his rights to one son. The validity of the will was questioned. The will was held to be valid. On the basis of the share given to the legatee under the will the preliminary decree was revised. According to the counsel for the appellant that decision is not applicable to the facts of the present case because what was done in that case is permissible under O. 22, R. 10 of the Civil P.C So also the counsel said that it was a case in which the share of one of the parties allotted under the preliminary decree was augmented by a subsequent event on which a revised preliminary decree is permissible. The position here is said to be different. In short the contention of the counsel was that the principle laid down in that decision is applicable only in cases where there was augmentation or reduction of shares based on subsequent events like death or birth of parties. The counsel said that otherwise a decree, whether it is preliminary or final, which has become concluded, could be reopened only in any one of the modes allowed by law namely appeal, revision, review, cancellation by a fresh suit or otherwise.
10. It is true that Phoolchand v. Gopal Lal, AIR 1967 SC 1470 dealt with a case where there was augmentation of share of a party subsequent to the preliminary decree on the basis of a will executed by another party to whom also share was allotted. But the principles laid down in that decision cannot be said to be confined to such cases alone. In a partition suit the court has jurisdiction to amend the shares suitably even after the preliminary decree has been passed. What was held in that decision was:
“We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the Suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in present appeal with other kinds of suits in which also preliminary and final decrees are passed.”
11. I do not think that subsequent preliminary decrees contemplated in that decision are confined to cases of augmentation or reduction of shares subsequent to the first preliminary decree by birth, death or intervening legislations alone. The words appearing in the decision “there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so” indicate that in partition suits there is no prohibition in passing more than one preliminary decree if the circumstances justify the same and it may be necessary to do so. It indicates that justifying circumstances and necessity to do so are the only considerations. On given facts the courts are having jurisdiction to decide whether there are justifying circumstances and necessity. The words “particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented” need only be taken as specific and particular instances of, justifying circumstances and existence of necessity where subsequent preliminary decrees could be passed. It need not be understood that justifying circumstances and necessity are confined to such cases alone. That decision also held that so far as partition suits are concerned if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is dispute in that behalf, the order of the court deciding that dispute and making the variation in shares itself would be liable to appeal. Going by the principles laid down in that decision. I do not think that there is any justification in saying that even in appropriate cases the courts are not having jurisdiction to pass revised or modified preliminary decrees irrespective of the question whether shares are subsequently augmented, reduced or taken away, for instance, by legislative enactments, or competent decisions of courts binding on parties making the allotment of shares under the preliminary decree unenforceable. Augmentation, reduction or nullification of the allotments under the preliminary decree by subsequent events happening before the passing of the final decree and binding on the parties must evidently be grounds on which the preliminary decree could be subjected to modification in order to make it in conformity with the rights of parties so long as the suit has not been finally disposed of by passing a final decree for partition. If the preliminary decree has become unworkable on account of a supervening event binding on the parties which happened before the passing of the final decree then no final decree could be passed in conformity with such a preliminary decree because the preliminary decree ceases to be a binding adjudication of the rights of parties.
12. Normally, a decree could be reversed or modified only by any of the methods recognised by law namely appeal, revision, review etc. So also a decree could be superseded by a legislation or a subsequent decision of a competent court. It may be true that a preliminary decree is final so far as the rights adjudicated upon therein are concerned. Decision means a concluded decision. A decision is final when so far as the court rendering it is concerned it is unalterable except by resort to such provisions of the Code of Civil Procedure as permits its reversal, modification or amendment. A final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by appeal, revision or review. In cases where preliminary and final decrees are to be passed the decree that is executable is the final decree. But finality does not depend upon executability. Under S. 97 of the Civil P.C, a party who was not challenged the preliminary decree by appeal shall be precluded from doing so in an appeal filed against the final decree. It may also be true that after a preliminary decree has become final as in cases like the one before me it cannot be revised or modified under O. 20, R. 18 of the Civil P.C
13. In the case in hand there are two conflicting preliminary decrees in two parallel proceedings inter partes. The suits were pending before two different courts having jurisdiction. In O.P 141/82 the District Judge, Kozhikode passed a consent order transferring O.S 1257/59 from the Munsiff's Court. Payyoli to the Munsiff's Court, Badagara for joint trial with O.S 950/59 in final decree proceedings. The Badagara Munsiff cannot pass two conflicting final decrees in the two cases. He can pass a final decree regarding the disputed properties only on the basis of one of the preliminary decrees. When there are two conflicting decrees between the same parties on the same subject-matter and when both the decrees were passed by competent courts, both cannot be allowed to go together. One must definitely yield to the other. Which one is to exist or prevail is the only question that has then to be considered. The dispute could be resolved only by resort to the principle of res judicata embodied in S. 11 of the Civil P.C
14. Parties have not chosen to resort to the provisions of S. 10 of the Civil P.C for getting one of the suits stayed. There is no dispute that the same matter was directly and substantially in issue in both the suits between the same parties pending in courts competent to try them. Both the suits were heard and finally decided on the merits on all the issues in dispute. Section 11 of the Code of Civil Procedure embodying the principle of res judicata bars the trial of a 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. Under Explanation I to S. 11, former suit is one which was decided earlier whether or not it was instituted earlier. Decided earlier means finally decided earlier. So also under Explanation IV to S. 11, any matter which might and ought to have been made a ground of attack or defence shall be deemed to be a matter directly and substantially in issue even if that matter has not been raised by way of defence or attack.
15. Dates of the preliminary decrees in both the suits by the trial courts are not material because preliminary decrees in both the cases were almost alike and there was no conflict between them. In O.S 1257/59 the first appeal decree was on 3-2-1965 at a time when the preliminary decree in the other case was not superseded by an appellate decree. The decree of the first appellate court in O.S 1257/59 declared the exclusive right of the first defendant negativing the claim of the 2nd defendant in O.S 950/59, who is the appellant in this case. Ext. A6 appellate decision in O.S 950/59 was on 22-1-1966. At that time the first defendant did not bring the earlier appellate decision in the other case to the notice of the court and he did not plead res judicata on that basis. That is how a conflicting decision happened to be rendered in that case. But in O.S 1257/59 there was a second appeal by the present appellant. That was decided by Ext. A4 judgment on 18-1-1968 by this Court. Against the appellate decree in the other case rendered on 22-1-1966 there was no second appeal and it has become final between the parties. At the time of Ext. A4 the present appellant, who was the appellant therein, also did not bring Ext. A6 to the notice of the court and raise the plea of res judicata. He thereby suffered an adverse decision which has become final. The earlier decision, if pleaded, would have operated as res judicata irrespective of the question as to which suit was instituted earlier. That is a plea which might and ought to have been raised as a ground of defence or attack. The plea of res judicata which might and ought to have been raised by way of defence or attack, but not raised, must also be considered as a matter that was directly and substantially in issue in Ext. A4. A decision which has become final earlier and thus operates as res judicata between the parties will have to be pleaded by the party who is entitled to have advantage of that plea. The principle of res judicata is only a mode of estoppel to prevent a party bound by an earlier decision of a competent court from raising the same contentions in subsequent proceedings. Section 11 of the Civil P.C does not operate as a bar in entertaining and deciding a suit simply because of an earlier decision by a competent court. If a party to whom a plea under S. 11 is available does not care to raise such a plea, it will be the duty of the court to decide the question brought before it for decision. The court may have no other course but to decide the matter on the merits. If a decision is suffered without raising the plea of res judicata, it is not open to the defaulting party to challenge the decision in other proceedings as one passed without jurisdiction. As already stated jurisdiction of the court to decide a question will not be taken away by the provisions of S. 11. The contention regarding res judicata also could be the subject of constructive res judicata. Parties may not be always vigilant. If a party fails to raise such a plea and suffers an adverse decision, he will be precluded by the rule of constructive res judicata and he will be bound to suffer the decision on account of waiver of the right which is lost to him. The rule of res judicata is not limited to the trial court alone. It applies to the appellate and second appellate courts and miscellaneous proceedings also. In such a situation, when there are two conflicting decisions inter partes on the same subject-matter, applying the bar of constructive res judicata, the last one in point of time must prevail between the parties and the first one which is superseded by the other must be regarded as dead. If so, in view of Ext. A4, the appellate decision evidenced by Ext. A6 must be treated as dead between the parties. If Ext. A6 is treated as dead and if Ext. A4 alone is alive as between the parties a final decree as between defendants 1 and 2 could be passed only in conformity with Ext. A4. What the appellate court has done is only so much. The appellate court was only giving effect to the principle which was accepted in Kunjan v. Janaki, 1980 Ker LT 796 (DB) wherein it was observed:
“First of all the claim of the petitioner on the basis of the decision of the Land Tribunal and the issue of the purchase certificate has been negatived in the Second Appeal. Assuming it is not so, it is a case where two cross-actions were had between the parties and the petitioner could have, but for his default and laches, pleaded that the plaintiff's appeal is barred by the res judicata with the decision of the Land Tribunal. For, the Rule of res judicata is not limited to the court of first instance, it applies equally to the appellate and second appellate courts and miscellaneous proceedings. If his case is that the Land Tribunal having jurisdiction has decided and issued a purchase certificate to him and that decision is conclusive and binding on the plaintiff, the petitioner's attempt to urge this in appeal having failed, he is barred from urging it again in execution. When there are two conflicting decisions inter partes the last one should prevail between the parties and the first one regarded as dead. It may be that he obtained this title pending the suit, but it cannot be said that in all cases he can wait to put forward this right for a later occasion. It is really a case where the Appellate Court's powers were invoked under O. XLI R. 33 and the failure of the petitioner to successfully urge this point in appeal cannot be said to give him a fresh right to put forward a defence in execution. The right which the petitioner claims is destructive of the title of the plaintiff. It is with him on the party array, after his acquisition of the alleged right, that the first Appellate Court and the Second Appellate Court allowed the plaintiff to recover possession of the property from him. He cannot urge this right again in execution. This is not a right which he obtained after the Second Appellate Court's decree. Hence all his claims on the basis of the purchase certificate are of no avail against the plaintiffs right to recover possession of the property in execution of the first and second Appellate Court decrees.”
16. The effect of not raising the plea of res judicata based on an earlier decision of a competent court and the existence of two conflicting decisions was considered by a Single Bench of this Court in Appi Pennu v. Kalyambi Nanan, 1984 Ker LT 763 : (AIR 1985 Ker 66). It was held:
“If a party entitled to successfully raise a plea of res judicata omits to do so, the court or the tribunal will be left with no alternative except to decide the question raised before it. If a party without raising a plea of res judicata allows the court or tribunal to decide the question afresh, it is not open to the parties to the subsequent decision to challenge the decision in other independent proceedings as passed without jurisdiction, for the jurisdiction of the court or tribunal to decide the question will not be ousted for the reason of an earlier decision by a competent court or tribunal. The plea that the question raised is covered by an earlier decision of a competent court is also one which might and ought to have been taken by the party who relied on the earlier decision, and if the court decides the question without reference to the earlier decision the plea of res judicata based on the earlier decision will itself be barred by res judicata in subsequent proceedings between the same parties or their representatives-in-interest. When there are two conflicting decisions inter partes the last one should prevail between the parties and the first one regarded as dead.”
17. Therefore there cannot be any dispute at all on the question that Ext. A4 alone could prevail as between the parties. Even the counsel for the appellant conceded this position. His only complaint was that the decision of the appellate court superseding the preliminary decree is not in conformity with any provision of law. He urges that under O. 20 R. 18 or S. 151 of the Civil P.C the appellate court had no jurisdiction to supersede the preliminary decree which has already become final and conclusive between the parties. I do not think that it may be correct to approach the issue in that way. It is true that the preliminary decree is normally conclusive. But if the conclusiveness of the preliminary decree is lost by some subsequent event binding on the parties that also will have to be given effect to. What is dead cannot be given effect to and treated as alive. Here, the circumstances make it imperative that the appellate decree in O.S 950/59 must be treated as dead in view of Ext. A4. It is true that we are dealing with an exceptional case wherein O. 20, R. 18 may not strictly apply. In such a situation normally a subsequent competent adjudication must settle the rights. In Bambathi Bibi v. Chariya Maliyammal ILR (1968) 1 Ker. 129 : (AIR 1968 Ker 282) an order passed subsequent to the preliminary decree directing the property, decreed to be partitioned, to be sold in court auction was held to be a revised preliminary decree and it was held that any number of preliminary decrees could be passed. The position of law is well settled that where on the same cause of action there are two conflicting decrees inter partes the later decree must be deemed to have superseded the earlier one and hence the effective decree is the later one.
18. The contention of the appellant that the decision of the appellate court has to be vacated on the ground that it is not in conformity with the provisions of law is rather hyper-technical to be accepted in the facts and circumstances mentioned above. Even if the decision is interfered with by this Court in Second Appeal the only preliminary decree that could be accepted by the trial court for the purpose of passing the final decree is Ext. A4 dated 18-1-1968. It may not be proper in such a situation to leave the trial court in embarrassment. For the reasons mentioned above, I am not in any way inclined to interfere in Second Appeal.
The Second Appeal is therefore dismissed, but in the circumstances without costs.
Appeal dismissed.