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Narhari And Others v. Shankar And Others .

Supreme Court Of India

Oct 13, 1950

Judgment

CaseIQ

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Factual and Procedural Background

The plaintiffs (members of the senior line of a family) filed a suit for possession of two-thirds of Survey No. 214 and for mesne profits, alleging a family custom that entitled them to exclusive ownership of the inam land. Two sets of defendants (Nos. 1–4 and Nos. 5–8) from junior branches each claimed a one-third share. The trial court decreed the suit in favour of the plaintiffs.

Each set of defendants filed a separate appeal to the Sadar Adalat, Gulbarga. Both appeals were heard together, decided by a single judgment that dismissed the plaintiffs’ claim, and two separate decrees were drawn up.

The plaintiffs then preferred two second appeals to the High Court of Hyderabad: (i) Appeal No. 331 was filed within limitation with full court-fee; (ii) Appeal No. 332 was filed 29 days late on a Re 1 stamp, stating that the full fee had already been paid in Appeal No. 331.

At the High Court, the defendants raised a preliminary objection that Appeal No. 332 was time-barred and that, once it failed, res judicata barred Appeal No. 331 as well. The High Court accepted this objection and dismissed both appeals.

The plaintiffs appealed to the Supreme Court of India under Article 374(4) of the Constitution (Appeals Nos. 22 and 23 of 1950).

Legal Issues Presented

Whether, when two appeals arise from a single suit and are disposed of by one judgment but separate decrees, it is necessary to file two separate second appeals.
Whether the dismissal of a time-barred appeal renders a timely companion appeal incompetent on the ground of res judicata.
Whether, in the circumstances, the plaintiffs were entitled to an extension of time under Section 5 of the Limitation Act, 1908.

Arguments of the Parties

Appellants' Arguments

Because the first appellate court delivered a single judgment in one suit, only one second appeal was legally required; drawing up two decrees did not change this position.
Reliance was placed on precedents such as Mst. Lachmi v. Mst. Bhuli (AIR 1927 Lah 289) and Appa v. Kachai Bayyan Kutti (AIR 1932 Mad 689), which held that separate appeals are unnecessary in comparable circumstances.
In any event, the delay in filing Appeal No. 332 should be condoned under Section 5 of the Limitation Act because there existed conflicting judicial opinions on the point.

Respondents' Arguments

Appeal No. 332 was filed beyond the limitation period and was therefore incompetent.
Upon dismissal of Appeal No. 332, the doctrine of res judicata barred Appeal No. 331, warranting dismissal of both appeals.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mst. Lachmi v. Mst. Bhuli (AIR 1927 Lah 289)	Where one suit and one judgment exist, separate appeals are unnecessary; res judicata turns on the judgment, not on multiple decrees.	Followed; treated as “well-known and exhaustive authority” supporting the appellants’ position.
Appa v. Kachai Bayyan Kutti (AIR 1932 Mad 689)	Facts similar to the present case; upheld maintainability of a single appeal.	Relied upon by appellants; Court noted it was “on all fours” with the instant matter.
Jethmal v. Ranglal (17 D.L.R. 322)	Held that failure to file cross-appeals timely can trigger res judicata.	Had been relied on by the High Court; Supreme Court distinguished it and declined to apply its reasoning.
Nandlal v. Mohiuddin Ali Khan (22 D.L.R. 400)	High Court decision holding separate appeals not required.	Cited as part of conflicting jurisprudence validating the appellants’ stance.
Nizamuddin v. Chatur Bhuj (93 D.L.R. 457)	Same principle as above.	Referenced to show divergence in authorities.
Gayajee Pant v. Habibuddin (28 D.L.R. 1094)	Same principle as above.	Referenced to show divergence in authorities.
Jagannath v. Sonajee (29 D.L.R. 108)	Same principle as above.	Referenced to show divergence in authorities.
Bansilal v. Mohanlal (33 D.L.R. 603)	State Judicial Committee decision following Mst. Lachmi v. Mst. Bhuli.	Noted as later authority consistent with appellants’ view.

Court's Reasoning and Analysis

The Supreme Court, per Naik J., emphasised that the decisive element is the unity of the suit and the single appellate judgment rather than the mechanical existence of two decrees. Citing Mst. Lachmi v. Mst. Bhuli, the Court observed that res judicata presupposes two distinct proceedings; with only one suit and one judgment, the doctrine is inapplicable.

The Court further held that the appellants had effectively appealed against the entire judgment by instituting Appeal No. 331, in which all defendants were impleaded and consolidated court-fee was paid. Consequently, the lateness of Appeal No. 332 did not impair the first appeal’s maintainability.

Moreover, even if the second appeal required condonation, the existence of conflicting authorities supplied “sufficient cause” under Section 5 of the Limitation Act. The High Court therefore erred in refusing to extend the limitation period.

Holding and Implications

Appeals Allowed; matter remanded to the High Court for decision on the merits; costs to follow the result.

Immediate effect: the High Court’s dismissal on preliminary grounds is set aside, and the plaintiffs’ substantive claims will now be adjudicated. The Supreme Court did not lay down a new rule but reinforced the principle that when one judgment disposes of multiple appeals in the same suit, a single further appeal suffices and res judicata is inapplicable.

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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.

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

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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.

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.

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