Raghunandan Singh v. Sm. Soubhagya Sundri Devi And Others

1. The respondent, Sm. Soubhagya Sundri Devi, instituted 225 rent suits for recovery of arrears of rent from the tenant-defendants of different villages within the Joypur revenue paying estate bearing touzis nos. 6 and 12 as an ijaradar of the said touzis by virtue of an ijara patta (Ex. 1) executed by Brajaraj Kumari in favour of the plaintiff on 9-12-1940. The mouzas in question originally belonged to Bhikhambar Singh. He made a bequest of the estate in favour of Raghunandan Singh, the appellant (pro forma defendant 1) and another, Chandrabali, in equal shares. Chandrabali was the senior-most wife of Bhikhambar Singh. The appellant took out probate of the will being an executor. Brajaraj Kumari, pro forma defendant 2, is the daughter and only heir of Chandrabali who has since died. This daughter Brajaraj Kumari executed the above mentioned ijara patta in respect of half the estate. The plaintiff in framing the suit as a rent suit, besides impleading the tenants from whom the rent is due, also impleaded the two pro forma defendants, namely, Raghunandan Singh, the appellant, and Brajraj Kumari her lessor.

2. The suits were contested, by pro forma defendant 1 as well as by some of the tenants who pleaded bona fide payment of rent to Raghunandan Singh. The latter claimed that, as the sole executor of the will, he alone was entitled to recover rent and not the plaintiff. In order to establish the plea in defence the appellant raised certain other subsidiary points such as non-registration of the plaintiff's name under the provision of Section 78 of the Land Registration Act, and certain other pleas not material for the purpose of this case.

3. The learned trial Court overruled all the objections of the defendants and granted the plaintiff a decree for half the share of the total rent due with full costs and interest at 6¼ per cent. As against the decree of rent suit No. 4379, out of the 225 rent suits that were consolidated for analogous trial and disposed of by one judgment, the pro forma defendant 1 preferred an appeal being rent appeal No. 36 of 1943 in the Court of the Judicial Commissioner of Manbhum who dismissed the appeal holding that the same was barred by res judicata. Hence, this second appeal. The learned lower appellate Court has dismissed the appeal as non-maintainable being barred by the principle of res judicata and did not express any opinion on the merits of the appeal. In view thereof, the only point that is canvassed in this appeal, is whether the appeal in the lower appellate Court was barred by res judicata. Before proceeding further, it is to be remembered that the subject-matter of the 225 suits were different and the principal defendants also were different in each of the eases, but the issue between the plaintiff and the pro forma defendant 1 that was common in all the suits was whether the pro forma defendant 1 as the sole executor of the estate under the will, was entitled to recover the arrears of rent to the exclusion of the plaintiff a lessee of Brajaraj Kuer. The point for consideration is that the judgments and decrees in the other 224 suits having become final as between the parties, whether the appellant is entitled to have the same issue tried over again notwithstanding its final adjudication as between him and the plaintiff in those decrees and judgments.

4. The learned counsel for the appellant contends that be is, and in support of his contention relies upon a Full Bench decision of the Allahabad High Court in [Ghansham Singh v. Bhola Singh] 45 All. 506.1 In that case the plaintiff sued upon a mortgage executed by the defendant and claimed the payment of the principal amount with interest at the contract rate, or, in the alternative, sale of the mortgaged property. The suit was decreed but without costs on the ground that the rate of interest was excessive and the same had swelled to an inordinate amount. From the preliminary decrees, both the parties appealed to the Subordinate Judge who varied the decree by reducing the plaintiff's claim but awarding him costs proportionate to the modified sum decreed. The two appeals had been consolidated by the appellate Court but there were prepared two decrees in almost identical terms which were placed in the records of the two appeals. The plaintiff came up in second appeal against the decree passed in the defendant's appeal in the Court below in which the plaintiff's claim was reduced but he did not prefer an appeal against the decree which was decided in his favour granting him costs that had been disallowed by the trial Court. The contention raised in second appeal was that the plaintiff not having appealed from the decree in his appeal that had become final, the finality of that decree meant the finality of the decree under appeal as they were prepared on the basis of the same judgment and were identical in terms. Under such circumstances it was held by the Full Bench that the plaintiff's appeal was not barred by res judicata. Their Lordships expressed in the following manner:

“Where it appears to an appellate Court that there are two decrees arising out of two suits heard together or raising the same question between the same parties, or arising out of two appeals to a subordinate appellate Court, and only one of such decrees is brought before it in appeal and there is nothing prejudicial to the appellant in the decree from which no appeal has been brought which is not raised and cannot be set right if the appeal which he has brought succeeds the right of appeal is not barred either by the rule of res judicata, or at all, by reason of his failure to appeal from the decree which does not prejudice him. It would be indeed wrong for an appellant to appeal against a decree which did not prejudice him and to which he did not object, or to appeal against two duplicate decrees where an appeal against one of them would be sufficient, and he is certainly under no obligation to do so.”

5. It is clear from what has been stated above that the Allahabad case has no application to the facts of the present case. The ratio of the decision is that the appellant was not competent to prefer an appeal from the other decree. In which he was a successful party.

6. Reliance is also placed upon the case in [Mt. Lachhmi v. Mt. Bhilli] 8 Lah. 384.2 In that case two widows A and B were jointly in possession of certain lands. Each sued the other for a declaration that she (the plaintiff) was the exclusive owner of the land and that the defendant had no right in it of any kind. By consent of parties the two suits were tried together and were disposed of by a single judgment, which decided that a is the owner but that is entitled to hold possession of one-half of the land in lieu of maintenance. A separate decree was drawn up in each suit declaring the rights of the plaintiff according to that decision appealed to the High Court against one of these decrees only, namely, the decree given in the suit in which she was the plaintiff. At the hearing of the appeal a preliminary objection was raised on behalf of the respondent that the appeal could not proceed by reason of B's failure to appeal from the decree that had been passed against her in A's suit. It was held by the majority of the Full Bench, Dalip Singh, J. dissenting, that there was no bar to B's appeal proceeding, either by the provisions of Section 11 of the CPC or by the general principles of res judicata, or by the fact that bad left outstanding against her a decree with which the decree sought by her to be obtained in the appeal would be in direct conflict. If I may say so, with respect, on the particular facts of that case, the decision was quite correct. The distinguishing features of that case are that the subject-matter of dispute was the same in both the cases with the difference that the plaintiff in one case was the defendant in the other therefore by preferring the appeal in substance challenged the decision in favonr of a, one decree being merely a duplication of the other a having been made a party in the appeal, if succeeded in her appeal, it would amount to a success in her suit to which a was a defendant and by which a was bound. In that case challenging one of the decrees in appeal amounted to challenging the other in substance, or, in other words, the result in one was bound to influence the other as this result was binding in his capacity as defendant, against him as plaintiff of the other suit in relation to the identical subject-matter in dispute. The case is quite different where the subject-matters of dispute are different but the decision involves adjudication of common issue as it is in the present case.

7. Applying the principles deducible from the case just cited what would happen will be as follows. Suppose the pro forma defendant 1 wins in his appeal before the lower appellate Court. Then in that case, if you follow the course laid down in the above case the plaintiff-respondent's decree which had not been appealed from, and which affects his right in respect of other properties, not the subject-matter of the appeal, will stand superseded. The tenants against whom these decrees have been obtained are not parties to the appeal, nor have they appealed from the decrees passed against them nor do they intend to. If, on the other hand, those decrees are allowed to stand unaffected there will result two conflicting decisions on the same issue as between the same parties. In the Full Bench case of the Lahore High Court, however, the parties as well as the subject-matter of the decree not appealed from, being fully represented in the appeal from the decree appealed from, there is nothing wrong in allowing the decree of the appellate Court to supersede the decree of the lower Court not appealed from, and to govern the rights of the parties in relation thereto. This is particularly so because all the parties likely to be affected whether favourably or adversely are fully represented in the appeal. As the subject matters of the decrees in the 224 rent suits not appealed from are quite different and as the defendants who are the principal defendants are also different, those decrees cannot be allowed to be superseded by the decree of the appellate Court passed in only one suit out of them. The tenant-defendants did not contest the plaintiff's title to recover rent though the pro forma defendant 1 did. In my view, the case in which the appeal in all its aspects, viz., in its scope and effect in relation to parties, in relation to subject-matter in dispute and in relation to other relevant matters is conterminous with the suit or suits the decrees of which are not appealed from, the bar of res judicata will not apply because the decree in the appeal if it is allowed to vary or reverse the decree of the trial Court not appealed from, it does so in relation to the same subject-matter and in the presence of the same parties. The Full Bench decision of the Lahore High. Court, therefore, is not applicable to the facts of the present case.

8. In [Mrs. Gertrude Oates v. Mrs. Millicent D'Silva*] 12 Pat. 1393 it has been laid down that the doctrine of res judicata is based on the general principles of law that multiplicity of suits should be avoided and that it is not always dependent on the limited provisions of Section 11 of the CPC, and that where two suits were decided by one judgment dismissing one of the suits and decreeing the other, and while the unsuccessful plaintiff appealed from the decision in his suit leaving the decree in the suit to which he was defendant to attain finality, it would be held that the decision not appealed from having become final would operate as res judicata as regards the common issue. In that case O brought a suit against D praying for an injunction restraining her from carrying on another hotel business contrary to the Articles of Partnership and the main issue in the case was whether the partnership had been dissolved. Later D brought a suit against O for rent for her portion of the partnership premises and one of the issues involved in this suit was the same, viz., whether the partnership had come to an end. Both the suits were decided by the Munsif, and on appeal, by the Judicial Commissioner, by one judgment. The suit of O failed while D's action succeeded. O appealed to the High Court from the decree made in D's suit while no further appeal was preferred from the decree in the other suit. It was held that the decision in O's suit which had become final operated as res judicata, as regards the common issue relating to dissolution of partnership. It is significant to note that here though the issue was common, the subject matters were different. The decree in appeal would not under any circumstances be made to govern the weight of the parties in relation to a subject-matter which was not involved in the appeal.

9. Similarly in [Ramkishun Lal v. Abdul Syed Hussain Imam] 136 I.C 9984 it was held that where the question of title was decided against the appellants in both cases and the appeal was filed against one only leaving the decree in the other as it stood, the appeal is barred by res judicata. In this case too the subject-matters in the two suits were different though the issue as to title was common.

10. The decision in [Pappammal v. Meenammal] A.I.R 1943 Mad. 1395 cited by the counsel for the appellant no doubt supports his contention. That was a case of three different suits for different reliefs but involving a common issue. They were tried together and disposed of by one judgment. The decree and judgment in one of the suits were appealed against while the others were allowed to stand. It was held, relying upon a Full Bench decision of the Madras High Court in [Panchanda Velan v. Vaithyanatha Sastrial] 29 Mad. 3336 that the bar of res judicata did not apply. In the Full Bench case, which was a case of cross suits, the subject of the suits being identically the same and the plaintiff in one case being the defendant in the other the learned Judges in applying the principles of that case to the case before them said:

“It is true that in the judgment under consideration (referring to 29 Mad. 333) there were cross suits but so far as we are able to judge, this circumstance appears to be immaterial.”

11. The learned Judges quoted with approval the following passage from the Full Bench case in 29 Mad. 333 which runs as follows:

“It would lead to startling results if we were to hold that an appellate tribunal is precluded from dealing with a question which comes before it on appeal because an inferior Court, upon the same facts but in a case other than the case under appeal bad given a decision which bad not been appealed against at the same time as the decision in the case under appeal.”

12. In my judgment, however, if I may say so with respect, the principles that govern cross cases should not govern cases in which different suits have different subject-matters but a common issue of law or fact. The case of [Anwar Ali v. Amir Ali] 2 Rang. 6337 also falls in line with the view taken by this Court in the cases just referred to. From the above review of judicial pronouncements, it is clear that at least three classes of cases involving consideration of the doctrine of res judicata are conceivable. One class illustrates cases of cross suits, each suit having the same subject-matter, the same issue and the same parties though differently arraigned, that is plaintiff in one suit is defendant in the other. In such a case the decree appealed from is a duplicate of the one not appealed. The second or next class of cases are those in which the party appealing from one of the decrees involving a common issue is not competent to appeal from the other decree or decrees as he is the winning party there. In this latter class, the reliefs or subject-matters may not be identical in all of them. The third class is the one in which scopes of the suits tried together and involving a common issue are different, the parties are not identically the same and the appellant party having been a loser in the decrees not appealed from could prefer an appeal but did not do so and allowed the decrees to become final.

13. In the first-named class challenge of one decree in appeal amounts in substance though not in form to challenge of other and the adjudication in appeal covers the same subject-matter in the presence of the same parties. In the second-named class the appellant having no right of appeal in the other decree cannot be hit by the rule of res judicata for no fault of his or rather for the failure of others in not preferring appeals from decrees passed against them. In the third class of cases the party appealing from one out of several decrees against him allows the rest of the decrees to become final. If his appeal is not hit by rule of res judicata there will result two conflicting decisions equally binding between the same persons on the same issue. Suppose, if in order to avoid conflicting decisions you allow the decision in appeal to supersede the decisions not appealed from, you thrust a decision on parties who are not before the appellate Courts you allow the decision regarding one subject-matter to affect and otherwise govern a different subject-matter which was never before the appellate Court and you transgress the rule of res judicata on its very face. The rule of res judicata, therefore, applies to last named class of cases and not to the other two. Keeping the line of distinction in view, there is, in my judgment, no conflict in principle in the decided cases noticed above.

14. At any rate, I am bound by the two Division Bench decisions of this Court already referred to and hence I hold in agreement with the lower appellate Court, that the appeal before him was barred by res judicata and it has been rightly dismissed. Later, I have come across a Full Bench decision of the Oudh Chief Court in [Shankar Sahai v. Bhagwat Sahai] 20 Luck. 3398 which fully accords with ray view expressed above. This decision, while it holds that there is no bar of res judicata to an appeal preferred against one decree out of two passed in two suits between the same parties involving common issues and disposed of by one judgment but two decrees, rules that this rule, however, is liable to exceptions which depend upon the circumstances of each case. The learned Judges have given an illustration of the exceptional cases in their answer to the second question referred to them at p. 351 of the report. The rule that no decision of a Court will bind a party or subject-matter not before it is to be as jealously guarded as the rule of res judicata. In the result, I hold that the second appeal has no merit and must be dismissed with costs.

G.N

15. Appeal dismissed.