1. This appeal arises out of a dispute as to fishery rights in two channels in the Tanjore District claimed by defendant 1, the head of the Thrupandal Mutt. The plaintiff was a man who had taken a lease of the fishery rights in these and other channels from Government, and being obstructed in the exercise of his right in respect of these channels by defendant 1 he filed this suit, impleading not only defendant 1 but also the Secretary of State as defendant 2. In his plaint he prayed for an injunction restraining defendant 1 from interfering with the fishery in the plaint channels and for damages caused to him (the plaintiff) by such interference, and he added an alternative prayer that in case it was found that defendant 1 was not liable for the aforesaid damages, defendant 2 should be directed to pay them.
2. The Munsif dismissed his suit in toto and ordered him to pay the costs of both the defendants. He appealed to the Subordinate Judge who, after calling for findings on three issues left undecided by the District Munsif, dismissed the appeal with costs, of both respondents. The present second appeal is preferred by the Secretary of State (defendant 2 in the Munsif's Court and respondent 2 in the Subordinate Court) and defendant 1, who now figures as respondent 2, raises the preliminary objection that, as the decrees of both the lower Courts are entirely in the present appellant's favour he is not entitled to appeal against them.
3. The cats is a somewhat curious one, and the ??? it is, by no means, free from doubt; but on the whole, we think, the objection must be allowed. Undoubtedly, as it stands, the decree of the Subordinate Judge, as also that of the District Munsif, is entirely in the appellant's (defendant 2's) favour. Not only is the suit for relief against him dismissed, but he is given his costs in both Courts.
4. The learned Advocate-General has argued at considerable length that any party to a suit aggrieved by a decree is entitled to appeal against it, although the decree, on the face of it, may be entirely in his favour. He relies mainly on the ruling of Woodroffe, J., in Krishna, Chandra Goldar v. Mohesh Chandra Saha(1), which is quoted with approval in Yusuf Sahib v. Durgi(2) and followed in Nagalla Kotaya v. Nayalla Mallayya(3).
5. A perusal of Woodroffe, J's judgment shows that he considered it an essential condition of the right of appeal that the appellant should be adversely affected in some way or other by the decree itself. This point is emphasized by Abdur Rahim and Krishnaswami Iyer, JJ., in the latest of the three cases wherein they say that the appeal hes only against the decree and not against a mere finding.” Certainly both in Krishna, Chandra Goldar v. Mohesh Chandra Saha and in Nagalla Kotaya v. Nayalla Mallayya the learned Judges are at pains to explain most dearly in what way the mere existence of the decree, apart from any finding in the judgment, prejudiced the appellant. It may be admitted that this point is not so clear in the case reported in Yusuf Sahib v. Durgi, but on the other hand, the opinion there expressed is a mere obiter diotum and the decision of the case proceeded on other grounds altogether.
6. The only case which has been quoted to us in which the right to appeal can be said to have been based on the findings behind the decree rather than on the decree itself is that reported in Jamna Das v. Udey Ram(4), and it is to be noted that the decision proceeded on the basis that the finding was necessarily implied in the decree.
7. Now, in the present case, the only way in which it is suggested that defendant 2 is adversely affected by the decree is that, in the finding on issue 2, operates as res judicata against him, it prevents him from setting up in future any proprietary right to the fishery in the suit channels. The said issue runs “whether defendant 2 has the right of fishery in the two plaint channels.”
8. It may be pointed out at once that the decree certainly “does not necessarily imply this finding” to quote the wording of Jamna Das v. Udey Ram. The Munsif recorded no finding on issues 2, 6 and 7, but based his dismissal of the suit on other grounds.
9. The Subordinate Judge called for findings on all the three issues above named. The Munsif returned findings adverse to the plaintiff on all three, and the Subordinate Judge accepted them as well as the findings originally recorded on the other issues. The plaintiff's claim for damages had already been decided against him under issue and the Subordinate Judge finds in addition (para. 8 of his judgment) that “the loss sustained by reason of his non enjoyment of the fishery is not separately ascertained and must be very slight.” Under issues 6 and 7 the Subordinate Judge agreeing with the Munsif found (a) that plaintiff was out of possession and had no right to sue for an injunction, (b) that as a lessee of one year he had no right to ask for a permanent injunction. The decision of these issues affords a perfect and independent basis for the dismissal of the suit apart from the question involved in issue 2. This circumstance at once distinguishes the case from that of Jamna Das v. Udey Ram, quoted above.
10. Again the prejudice to defendant 2 is solely dependent on the assumption that the decision of issue 2 will operate as res judicata against him in future litigation. The respondent's vakil has quoted more than one case to show that no appeal would lie even if the matter were res judicata, a view which seems to obtain a certain amount of support even from Yusuf Sahib v. Durgi. But as a matter of fact we do not think that the decision in this case would operate as res judicata, and we may note for what it is worth that the learned vakil for the respondents himself argues that it motion not, and even expressed himself as willing to undertake to raise no such contention in future litigation.
11. We have already given reasons for holding that the determination of issue 2, was not necessary to decision of the suit, and an examination of the pleadings and of the judgment of the lower Court shows that it cannot be said that the question raised therein was directly and substantially at issue between defendant. 1 and defendant 2. Para. 8 of the plaint, in putting forward the alternative claim against defendant 2 (that he should be liable to pay the said damages, of Rs. 520) says: “For this reason defendant 2 is made a party. Defendant 2, while admitting the allegations in the plaint to the effect that the ownership of the fishery lies with him, puts the plaintiff to proof of damages, and simply prays that the relief claimed against him be dismissed with costs. So far as can be ascertained defendant 2 adduced no evidence in the case, and as the Munsif remarks in para. 11 of the judgment, “the suit is not one by or on behalf of Government, and it is in fact one against Government.”
12. We must therefore hold that defendant 2 is not adversely affected in any way by the decree in the suit or by any finding necessarily implied therein and that he his no right of appeal. The appeal is dismissed with costs.
S.N/R.K
13. Appeal dismissed.