Ghose, C.J:— This is a reference under sec. 575, C.C.P, by reason of a difference of opinion arising between Mr. Justice Rampini and Mr. Justice Harington.

The facts, which have given rise to this reference, are shortly these:—One Mahomed Mehdi Khan died leaving two widows, Mariam and Joynab Bibee. These two widows brought two separate suits for recovery of their respective dowers. In each of these two suits, the other widow was a Defendant, and each of them claimed to recover Rs. 3,000, as her dower, from what she considered to be the properties left by Mahomed Mehdi Khan. In these suits, a question arose between the parties, whether two houses belonged to the estate left by Mahomed Mehdi Khan, or they belonged to Mariam as her separate property; and an issue upon that question was laid down by the Subordinate Judge in both the suits. The question arose in this way. Mariam, in her plaint, sought to recover her dower from the properties other than these two properties, while Joynab Bibee claimed to recover her dower from the entire estate left by Mahomed Mehdi Khan, including these two properties. The suits were instituted in one and ??? Court, namely, the Court of ??? Judge of Hooghly, and ??? apparently with the consent ??? the parties, tried them together ??? decided them by one and the same ???. He held that the two houses ??? question belonged to Mariam as her ??? property, and not to the estate ??? by Mahomed Mehdi; and accordingly ??? pronounced judgment affirming the claim of Mariam, and disaffirming that of Joynab Bibee, so far as those two properties were concerned. In accordance with this judgment, two separate decrees were drawn up. The decree in the suit of Mariam was to the effect that her dower be recovered from the estate left by Mahomed Mehdi Khan, excluding the two properties in question, and that, upon the sale of such estate, the proceeds thereof should be divided equally between Mariam and Joynab Bibee. The other decree, that is to say, the decree in the suit of Joynab Bibee was to the effect that she do recover her dower from the estate left by Mahomed Mehdi Khan, excluding the said two properties. Joynab Bibee preferred no appeal against the decree pronounced in the suit of Mariam, but she did so in her own suit; and she appealed upon the ground that the conclusion arrived at by the Subordinate Judge upon the question of title to the two properties in question was not correct and that she should be allowed to recover her dower from the entire estate left by Mahomed Mehdi Khan including those two properties. The District Judge, before whom this appeal came on for hearing, differed from the conclusion arrived at by the Subordinate Judge. He held that the two properties did not belong to Mariam, but to the estate left by Mahomed Mehdi; and he accordingly allowed the appeal. At the hearing of that appeal, however, a question was raised on behalf of Mariam to the effect that the judgment of the Subordinate Judge in her suit, not having been appealed against, operated as res judicata upon the question of title to the said two properties. But this plea was overruled by the District Judge, the result being that Mariam preferred the second appeal which is now before this Court. The learned Judges before whom the appeal came on for hearing differed from each other upon the question of res judicata raised between the parties. Mr. Justice Rampini was of opinion that though there was but one judgment recorded by the Subordinate Judge, yet in the eye of law it should be taken that there were two separate judgments, one in each of the suits, and therefore the judgment in the suit of Mariam, upon the issue as to the title to the two properties in question, not having been appealed against was final, and as such, operated as a bar to the trial of the same issue in the appeal that was preferred by Joynab Bibee before the District Judge; while Mr. Justice Harington was of a different opinion.

Sec. 13 of the Code of Civil Procedure, upon which the decision of the question referred to rests, runs as follows:— “No Court shall try any 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 or between parties under whom they or any of them claim, litigating under the same title, in a Court of jurisdiction competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” The question here arises whether the issue as to the title to the two properties claimed by Mariam was heard and finally decided in a former suit between the same parties. Before discussing this question, I desire to point out that, when the suits were pending in the Court of the Subordinate Judge, if an application had been made under sec. 20 read with sec. 12 of the Code, that the trial of the suit instituted by Joynab Bibee be stayed until the decision of the suit of Mariam, probably it would have been allowed, and, if it had been allowed, the result would have been that the Subordinate Judge having determined in the first-mentioned suit that the properties in question belonged to Mariam, and not to the estate left by Mahomed Mehdi, would record in the second suit that the decision in the former suit was a bar to the trial of the issue as to the title to those properties upon the doctrine of res judicata. But that was not the course followed in this case. Both parties apparently consented that the two suits should be tried together, as if they were one suit, the evidence in one suit being considered as equally applicable to the other suit; and the Subordinate Judge before whom the matter came on for hearing delivered one and the same judgment as applicable to both the suits, though no doubt he passed, as he was bound to have passed, two separate decrees. It will be observed that the Code nowhere provides for an appeal being preferred ??? a judgment. It is only from a ??? that an appeal is allowed under sec. ???. Now if the adjudication of the ??? that has been raised in this appeal ??? upon the consideration of the ??? whether, by reason of no appeal having been preferred by Joynab Bibee against the decree pronounced in the suit ??? Mariam, the decision in that suit, upon the issue of title to the two properties became final, as contemplated by sec. 13 of the Code, I should say that it is extremely doubtful whether she (Joynab Bibee) was bound to have preferred any appeal against that decree, because though no doubt the second part of the decree, viz., that the proceeds of the sale be divided equally between the two ladies, might be regarded as one affecting her interest, yet the decree that was made upon the claim of Mariam, and which was the true decree made in her suit, was that her dower should be realised out of a limited number of properties, that is to say, the properties other than the two properties which she claimed, and that she should receive the moiety of the sale-proceeds of those properties. No doubt, Mariam obtained a decree such as she desired, but the decree so far as it direoted that only certain properties should be made liable for the satisfaction of her claim, and that she should receive one moiety of the sale-proceeds was not a decree which really affected the interest of Joynab Bibee, What really affected her interest was the decree pronounced in her own suit in which the Subordinate Judge declared that her dower should be recovered from the estate of Mahomed Mehdi, excluding the two properties in ??? To my mind, it is this decree ??? which she was bound to prefer ??? in order to entitle her to raise ??? before the Appellate Court, ??? those two properties belonged to ??? as her separate property, or they ??? to the estate left by Mahomed ???. If this be a correct view to take, ??? hardly sees how the judgment in ??? suit of Mariam, supposing it be taken that there was a separate judgment in that suit, could be regarded as a final judgment upon the question of title to the two properties, and as operating as a bar to the trial of that question in the appeal preferred by Joynab Bibee against the decree made in her own suit.

But, as already stated the two suits were decided by one and the same judgment, the issue as to the title to the two properties being common to them. Which then is the judgment that would operate as a bar to the determination of the question as to the title to the two properties in question in the appeal preferred in Joynab Bibee's case I Could it be rightly said that the judgment pronounced by the Subordinate Judge should be supposed to be two judgments—one in each of the two suits and that therefore the judgment in the suit of Mariam is the judgment in the “former suit,” and which finally decided the issue as to the title to the two properties, as contemplated by sec. 13, C.P.C? It may be accepted as correct that the expression “former suit,” as occurring in that section, as the Allahabad High Court has held in the case of Balkishan v. Kishanlal, and which has been approvingly quoted by the Madras High Court in the case of Gururajammah, does not relate to “the date of the commencement of the litigation, but to the time when the Judge is called upon to decide the issue,” and “that the rule contained in sec. 13 is not limited to the Courts of first instance and that it equally applies to the procedure of the first and second Appellate Courts by reason of secs. 582 and 587 respectively,” but still the question here is which is the judgment that operates as a bar in this case? To my mind, it is difficult to hold that there was a separate judgment in the case of Mariam upon the question of title to the two properties, such as operates as a bar, bearing in mind that it is the very judgment that was appealed against by Joynab Bibee before the lower Appellate Court. As pointed out by Mr. Justice Harington, where one judgment disposes of one issue which has been raised in two suits, it would be an anomaly to hold that the party against whom the issue is decided cannot question the judgment unless he files two appeals against it. For these reasons, I am of opinion that the judgment referred to was no bar by way of res judicata to the trial of the question of title to the two properties in the appeal that was preferred by Joynab Bibee. This view is supported by the ruling in the case of Abdul Majid v. Jewnarain Mahto, and though I am not prepared to agree with the learned Judges who decided that case as regards some of the grounds given by them for holding that the plea of res judicata did not apply in the case, yet I accept the conclusion that was arrived at by them on general principles. The learned vakil for the Appellant has relied upon the two cases referred to in the judgment of Mr. Justice Rampini. I have more or less referred to the principles laid down in those cases, and it is not, therefore, necessary to discuss them. I might, however, as well refer to the observations of Mahmud, J., in the case of Balkishan v. Kishanlal as to the main object of the doctrine of res judicata, that being, as stated by that learned Judge, the prevention of multiplicity of suits and interminable disputes between litigants. Now, if the main object of the doctrine is to prevent multiplicity of suits, could it be said that in this case that object has been defeated, the trial being but one, the issue being one common to both suits and the judgment being one and the same as applicable to both of them. The learned vakil for the Appellant has also relied upon the case of Chajju v. Sheo Shahai(4), but I do not think that it applies to the facts of the case before us. For these reasons, I agree in the opinion expressed by Mr. Justice Harington.

Upon the question of title raised in this case, namely, whether the two properties belonged to Mariam Bibee, or to the estate left by Mahomed Mehdi Khan, the District Judge came to a clear finding of fact that they belonged to the estate of Mahomed Mehdi; and Mr. Justice Harington accepts that finding as conclusive upon this question. Although Mr. Justice Rampini does not deal with it in his judgment, because he thinks that the decision upon the questions of res judicata should ??? case, it seems to me that there ??? ground in law to question the ??? fact that has been arrived at ??? lower Appellate Court. Accepting ??? finding of fact as unassailable in ??? appeal, the result must be that ??? appeal should be dismissed with ???. The Respondent will be entitled to ??? sets of costs for the two hearings.

N.G

Appeal dismissed.