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PETITIONER: LONANKUTTY

       Vs.

RESPONDENT: THOMMAN & ANOTHER

DATE OF JUDGMENT15/04/1976

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. KRISHNAIYER, V.R. UNTWALIA, N.L.

CITATION:  1976 AIR 1645            1976 SCR   74  1976 SCC  (3) 528

ACT:      Civil Procedure  Code, s.  11, Res  judicata, scope of- Common judgment in cross appeals from two suits on identical questions-Seond appeal from only one suit, whether barred by res judicata.      Practice and  procedure-Remanding judgment not appealed against,  whether   challengeable  in   appeal  from   final decision.

HEADNOTE:      Two suits  were filed  in the  trial court,  one by the respondents,  claiming  a  prescriptive  easement  over  the appellant’s land  for the  ingress and  egress of water, for agriculture  and   prawn  fishing,  and  the  other  by  the appellant, seeking  to restrain  the respondents  from using his land for the above purposes. Due to the time-lag between their  respective   institution,  the  two  suits,  although involving common  questions,  were  tried  and  disposed  of separately. The respondents’ easementary right was upheld in regard to agricultural user but not for prawn fishing. Cross appeals were  filed by the parties against both the decrees, and  the   Subordinate  Judge   dismissed  all  the  appeals confirming the  decrees by  a common  judgment. Neither side challenged  the   decrees  in   appeals  arising   from  the respondents’ suit,  but the respondents moved the High Court against the  decree in  appeals arising from the appellant’s suit. The  second appeal was contested on the ground that it was barred  by res  judicata, as  the  question  in  it  had already been  finally decided by the unchallenged decrees in the appeals  arising out  of the other suit. This contention was rejected  and  the  appeal  was  remanded  for  a  fresh hearing. The  matter was thereafter disposed of on merits by the  Subordinate   Judge,  and  the  pre-remand  view  stood confirmed. The  High Court  allowed a  second appeal  by the respondents, upholding  their  easementary  right  both  for agriculture and  prawn fishing. In appeal therefrom the plea of res  judicata was  raised  before  this  Court,  and  was contested on  the ground that the remanding judgment had not been appealed  against, and  the contention  was, therefore, barred by res judicata.      Allowing the appeal, the Court

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^      HELD :  (1) The  appeals filed  in the  District  Court arose out  of two  different suits, one by the appellant and the other by the respondents. The failure of the respondents to challenge the decision of the District Court in so far as it pertained  to their  suit, attracts  the  application  of section 11,  Explanation I, Civil Procedure Code, because to the extent  to  which  the  District  Court  decided  issues arising in the respondents’ suit against them, that decision would operate  as res  judicata since  it was  not  appealed against. [81A-B]      Sheodan Singh  v. Smt.  Daryao Kunwar  [1966] 3  S.C.R. 300; Badri  Narayan Singh  v. Kamdeo  Prasad  Singh  &  Anr. [1962] 2 SCR 759, referred to.      Narhari v. Shanker [1950] SCR 754, distinguished.      (2) The circumstance that the remanding judgment of the High Court  was not appealed against assuming that an appeal lay  therefrom,   cannot   preclude   the   appellant   from challenging the  correctness of  the view  taken by the High Court in that judgment. [81 D-E]      Satyadhan Ghosal  & Ors.  v. Smt.  Deorajin Debi & Anr. [1960] 3 S.C.R. 590, followed. 75

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1283 of 1973      (Appeal by  special leave  from the  judgment and order dated the  8.4.1971 of  the kerala  High Court  in S. A. No. 1190/65)      D. V. Patel and A. S. Nambiar, for the appellant.      T. C. Raghavan and S. Balakrishnan, for respondents.      The Judgment of the Court was delivered by      CHANDRACHUD, J.-This  22-year old  litigation  concerns the right  of two  adjacent owners  to catch prawns on their respective lands.      Survey  No.   673  of  Kadamkudi,  District  Ernakulam, measuring about  11 acres  originally belonged to the Cochin Government but by diverse transfers the title thereto is now vested in  the appellant, Lonankutty. The land is bounded on the West  and South by a river. A portion of the land on the North-East can  be put to agricultural use for a part of the year but  the land,  by and  large, is  water-logged and can profitably be  used for  prawn-fishing.  In  order  to  make fishing feasible,  the appellant  has constructed  a bund on the western  side of  the land for arresting the flow of the river  water.   The  contrivance  is  calculated  to  permit collection of  water on  the land,  almost to  the point  of submerging it. The prawns enter the land with the high tide, they breed  and multiply  on the  land, and  the water while receding  leaves  the  prawns  behind.  The  appellant  then catches them, presumably under a licence from the Government of Kerala.      Survey Nos. 672, 677, 655/4 and 670 which sprawl on all sides of  survey No. 673 belong to the respondents : Thomman and his mother Annam. We are concerned with the prescriptive rights claimed by them in respect of survey No. 672 which is situated towards  the north-east  of survey  No. 673. Survey No. 672 is almost landlocked and between it and the river on the  south  stands  the  vast  expanse  of  survey  No.  673 belonging to the appellant.      Prawns have  an export  value and  catching them  is so much  more  profitable  than  growing  food-crops.  But  the

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respondent’s land  being land-locked,  they have  no  direct access to  the river  on the  west or the south. They cannot therefore do  any fishing  operations  because,  for  prawn- fishing it  is necessary  that the  river-water  must  enter their land,  and collect on it so that after the prawns have bred, the  water can  be released  back to  the  river.  For achieving this  result, respondents  constructed a bund with sluice-gates on the border between their land and survey No. 673. Their case is that they have a prescriptive easement to take water  from the  appellant’s land and to divert it back through the same land, both for fishing and agriculture. The appellant has  grave objection to permitting the respondents to engage thus in prawn-fishing because along with the water which would  pass from  his land  (survey No.  673)  to  the respondents’ land  (survey No. 672), prawns also would pass. And when  the water  would be  released back from survey No. 672 through  the sluice  gates, survey  No.  673  would  get flooded, carrying back the prawns left on his land, 76 to the  river on  the south.  This is  the  genesis  of  the dispute between the parties.      The appellant  filed Civil Suit No. 666 of 1954 against the respondents  for a perpetual injunction restraining them from taking  water from survey No. 673, from discharging the water back  through survey  No.  673  and  for  a  mandatory injunction directing them to demolish the bund and close the sluice gates.  The appellant  disputed the  right claimed by the respondents in its entirety, contending that they had no right to  the flow  of water  either way for either purpose- fishing or agriculture.      The respondents  filed Civil  Suit No. 5 of 1957 for an injunction restraining the appellant from trespassing on the bund constructed  by them  and for  preventing the appellant from interfering  with their right to take water from Survey No. 673  and to  discharge the water back through that land. Respondents claimed  this prescriptive  right for fishing as well as for agricultural purposes.      Both the  suits were  instituted in  the court  of  the Munsiff of  Cochin but in view of the time-lag between their respective institution,  they were  tried  and  disposed  of separately. By  a judgment  dated  September  20,  1957  the learned Munsiff  decreed the  appellant’s suit  (No. 666  of 1954) partly, granting an injunction against the respondents to the  effect that they had no right to take water from the appellant’s land  nor to  discharge the  water back  through that land  for the  purposes of  prawn-fishing. The  learned judge,   however,    expressly   upheld   the   respondents’ easementary right  to the  two-way flow  of water  from  and through the  appellants  land  for  agricultural  operations during the agricultural season.      The suit  filed by  the respondents (No. 5 of 1957) was disposed of  by the  learned Munsiff  by  a  judgment  dated October 11, 1958. Consistently with the decree passed in the appellant’s suit,  he dismissed  the respondent’s suit in so far as  it related to the fishing rights claimed by them but decreed it  to the  extent of  the right  claimed by them in regard to  agricultural user.  Briefly, the  result  of  the decrees passed  in the  two suits  was that  the respondents could take  water from  the appellant’s  land and  discharge water back  through that land for agricultural purposes only and during  the agricultural season which begins on the 15th Meenam and ends on 15th Vrischigam of each year.      From the  decree passed  in the  appellant’s suit,  two cross-appeals  were  filed  in  the  court  of  the  learned Subordinate  Judge,  Ernakulam,  the  appeal  filed  by  the

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appellant being  A. S.  64 of  1956 while  that filed by the respondents being  A. S.  66 of  1958. Similarly, two cross- appeals were  filed by  the parties  as against  the  decree passed  by  the  trial  court  in  the  suit  filed  by  the respondents, A.  S. 1  of 1959  being the  one filed  by the respondents while  A. S.  17 of  1959 being the one filed by the appellant.  Since these  four  appeals  involved  common questions for  decision the  learned Subordinate Judge heard them together  and disposed  them of  by a  common  judgment dated January  28, 1960. The learned Judge dismissed all the appeals and confirmed the decrees passed by the Trial Court. 77      No further  appeal was  filed by  either side  from the decrees passed  by the  learned Subordinate Judge in Appeals Nos. 1  of 1959  and 17  of 1959,  which arose  out  of  the respondents’ suit.  But respondents filed a Second appeal in the High  Court against  the decree  passed by  the  learned Subordinate Judge  in appeal  No. 66 of 1958 which arose out of the decree passed by the trial court in the suit filed by the appellant. That was Second Appeal No. 1149 of 1960.      Before the High Court it was contended on behalf of the respondents  that   the  subordinate  Judge  had  failed  to consider the  entire evidence  in the case and therefore his judgment was  vitiated. On  the other  hand, the appellants, who were  defending the  judgments of the Subordinate Judge, contended that  the question  raised by  the respondents  in their Second  Appeal  was  barred  by  res-judicata  as  the decrees passed  by the  Subordinate Judge in appeals arising out of  the respondents’  suit had  become final, not having been appealed  against. A  learned single  judge of the High Court, by his judgment dated July 8, 1964 accepted the first of these  contentions, set aside "the judgment and decree of the Subordinate  Judge which  was under appeal" and remanded the appeal  for a  fresh hearing. The appellant’s contention of res  judicata was  rejected by  the learned  Judge on the ground that  since in the four appeals the Subordinate Judge had passed  only one  judgment and one decree, it was enough for the  respondents to  file one appeal in which they could challenge every one of the findings recorded against them.      On  remand,   the  appeals   were  heard   by   another Subordinate Judge  before whom the appellant, once again and with some  impropriety, pleaded  the bar  of  res  judicata. Impropriety, because  the High  Court having  rejected  that plea by  its remanding  judgment, the  court  of  remand-the Subordinate Judge-was  bound by the High Court’s decision on the  question  of  res  judicata.  Apparently,  the  learned Subordinate Judge  was in  a  doubting  disposition  and  he expressed his  reaction favourably  by  observing  that  the appellant’s contention  of resjudicata  was  plausible.  But very rightly,  he proceeded  to dispose  of  the  matter  on merits as  directed by the High Court. By his judgment dated December 22,  1964 he  dismissed A.  S. 66 of 1958 which was filed by  the respondents  against the  decree passed by the Trial Court  in the appellant’s suit. Thus the view taken in the judgment before remand stood confirmed after remand on a further consideration of evidence in the case.      Respondents  filed  Second  Appeal  No.  1190  of  1965 against the  Subordinate Judge’s judgment, which was allowed by a  Division Bench  of the  Kerala High  Court on April 8, 1971. The  High Court  held that the respondents had a right to the  flow of  water through the appellant’s land not only for the  purposes of  agriculture but  for the  purposes  of prawn-fishing also.  Appellant raised once again the plea of res judicata  but it  was rejected  on the  ground, rightly, that the  plea was  concluded by  its remanding judgment. In

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the result,  the High  Court dismissed  the appellant’s suit (No. 666  of 1964),  giving rise  to this  appeal by special leave. 78      Learned counsel  appearing on  behalf of  the appellant contends that  the High  Court exceeded  its jurisdiction in interfering with  the  findings  of  fact  recorded  by  the Subordinate  Judge   and  that  it  had  overlooked  certain fundamental principles  of law  while adjudicating  upon the prescriptive  claim   made  by   the  respondents.   It   is unnecessary to  go  into  these  questions  because  another submission made  on behalf of the appellant goes to the root of the  matter and  if that submission is accepted, the High Court’s  judgment   would  be  impossible  to  sustain.  The contention is  that the  issue as  regards the  respondents’ right to  the flow of water through the appellant’s land for fishing purposes  is barred  by res judicata, and therefore, the High  Court could  not try  and decide that issue in the Second Appeal which came before it.      This contention  is well-founded  and must be accepted. By section  11, Code  of  Civil  Procedure,  in  so  far  as relevant, 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 and  has been heard and finally decided. Explanation I to  the section provides that the expression "former suit" shall denote a suit which has been decided prior to the suit in question  whether or not it was instituted prior thereto. The only  other aspect  of the rule of res judicata which on the facts  before us must be borne in mind is that it is not enough to  constitute a  matter res  judicata that it was in issue in  the former  suit. It  is further necessary that it must have  been in  issue directly  and substantially. And a matter  cannot   be  said   to  have   been  "directly   and substantially" in  issue in  a suit unless it was alleged by one party  and denied  or admitted,  either expressly  or by necessary implication, by the other.      In the  instant case, two suits were filed in the trial court:  one   by  the   appellant  and   the  other  by  the respondents.  The  plaintiff  in  the  first  suit  was  the defendant in  the second  suit while  the defendants  in the first suit  were plaintiffs  in the second. To particularize in the  interests of clarity, appellant who was plaintiff in the earlier  suit (No.  666 of 1954 was the defendant in the later suit  (No. 5  of 1957). Respondents who were plaintiff in suit  No. 5  of 1957  were defendants  in suit No. 666 of 1954. In  the appellant’s  suit, the  trial Court framed the following issues for decision in so far as relevant:           "1.  Whether the  defendants have  trespassed into                the  north-eastern  boundary  of  the  plaint                schedule property and have begun construction                of a  bund there  as alleged in para 3 of the                plaint ?           2.   How long has the bund on the western boundary                of S. No. 672 been in existence?           3.   Whether defendants  1 to  3 have acquired any                right of  easement over  the plaint  schedule                properties as  contended for in paras 4 and 5                of the written statement?           4.   Whether the  defendants enjoyed  such a right                against schedule  properties  as  owners  and                occupiers of S. Nos. 79                672  and   667  openly   as  of   right   and                continuously and for the prescribed period?

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         5.   Whether defendants 1 to 3 have no out-let for                water from S. Nos. 667, 672, 655, 670 and 671                other  than   through  the   plaint  schedule                properties?           6.   Whether the right to let in and let out water                for purpose  of prawn-fishing  operation is a                right of  easement capable  of being acquired                in law?           7.   Whether the  plaintiff  is  entitled  to  the                injunction prayed for?"      In the  respondents’ suit  the  following  issues  were framed:           "1.  Whether the  plaintiffs have got any easement                right to  let in  and let  out water from the                plaint  A   schedule  properties   through  B                schedule property?                2. Whether  the defendant  can obstruct  that                right if any, by putting up a bund?                3. Whether the plaintiffs are entitled to the                injunction prayed for?"      The trial  court decreed the appellant’s suit partly by holding that  the respondents  had not acquired any right of easement over  the appellant’s  land  for  the  ingress  and egress  of   water  for   fishing  purposes   but  they  had established such  a right  for agricultural  purposes during the  agricultural   season.  The   trial  court   issued  an injunction  restraining   the  respondents  from  taking  or letting out  water from  or through the appellant’s land for fishing purposes.  In the respondents’ suit, the trial court recorded similar  findings and  issued an injunction against the appellant  restraining him  from  interfering  with  the respondent’s easement right limited to agricultural purposes during the agricultural season.      Each party  being partly aggrieved by both the decrees, each filed  an appeal  in the District Court against the two decrees. The  learned Subordinate  Judge, sitting in appeal, had thus  4 appeals before him, 2 arising from each suit. He confirmed the  decrees under  appeal and  dismissed all  the appeals.      Respondents did not file any further appeal against the decree passed  by the  District Court in the appeals arising out of  their suit.  They filed  a Second Appeal in the High Court, only  as against  the decree  passed by  the District Court in  A. S.  66 of  1958 which  arose out  of the decree passed by the trial court in the appellant’s suit. Thus, the decision of  the  District  Court  rendered  in  the  appeal arising out  of  the  respondents’  suit  became  final  and conclusive. That decision, not having been appealed against, could not  be re-opened  in the Second Appeal arising out of the appellant’s  suit. The issue whether respondents had the easementary  right   to  the   flow  of  water  through  the appellant’s land  for  fishing  purposes  was  directly  and substantially in  issue in the respondent’s suit. That issue was heard and 80 finally decided  by  the  District  Court  in  a  proceeding between the  same parties  and  the  decision  was  rendered before  the  High  Court  decided  the  Second  Appeal.  The decision of  the District  Court  was  given  in  an  appeal arising out of a suit, which though instituted subsequently, stood finally  decided before the High Court disposed of the Second Appeal.  The decision  was therefore one in a "former suit" within the meaning of section 11, Explanation 1, Civil Procedure Code.  Accordingly, the High Court was in error in deciding an  issue which  was heard and finally decided in a

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"former suit" and was therefore barred by res judicata.      The High  Court in  its judgment  dated April  8,  1971 assumed wrongly  that suit  No. 666  of 1954  filed  by  the appellant and  suit No.  5 of  1954 filed by the respondents were "originally  disposed of  by a  common judgment".  They were not. The appellant’s suit was disposed of by a judgment dated September  20, 1957  while the  respondents’ suit  was disposed of by a judgment dated October 11, 1958. Naturally, 2 separate  decrees were  drawn in  the 2  suits  and  those decrees gave rise to 4 cross-appeals, 2 from each suit.      In its  remanding judgment  dated July 8, 1964 by which the plea of res judicata was repelled, the High Court relied principally on  the decision  of this  Court in  Narhari  v. Shanker. That  decision is  in our  opinion  distinguishable because in  that case only one suit was filed giving rise to 2 appeals. A filed a suit against B and C which was decreed. B and  C preferred  separate appeals which were allowed by a common judgment,  but the  appellate court  drew 2  separate decrees. A  preferred an  appeal against  one of the decrees only and  after  the  period  of  limitation  was  over,  he preferred an appeal against the other decree on insufficient court-fee. The  High Court  held that  A should have filed 2 separate appeals  and since  one of  the  appeals  was  time barred, the  appeal filed  within time  was  barred  by  res judicata. This  Court held that "there is no question of the application of the principle of res judicata", because "When there is  only one  suit, the  question of res judicata does not arise  at all".  This was  put on the ground that "where there has  been one  trial, one  finding, and  one decision, there need  not be  two appeals  even though two decrees may have been  drawn up."  In our  case, here  were 2  suits and since the  appellate decree  in one  of the suits had become final, the  issues decided therein could not be re-opened in the Second  Appeal filed  against the  decree passed  in  an appeal arising  out of  another suit.  This precisely is the ground on  which Narhari’s  case was  distinguished by  this Court in  Sheodan Singh  v. Smt.  Daryao Kunwar. It was held therein that  where the  trial court  has  decided  2  suits having common issues on the merits and there are two appeals therefrom the  decision in  one appeal  will operate  as res judicata in the other appeal.      The circumstance  that the  District Court  disposed of the 4  appeals  by  a  common  judgment  cannot  affect  the application of  section 11  because  as  observed  in  Badri Narayan Singh v. Kamdeo Prasad Singh 81 and  Anr.,(1)   even  where  2  appeals  arise  out  of  one proceeding and  even if  the appeals  are disposed  of by  a common judgment, the decision in that judgment may amount to 2 decisions  and not  to one  if the  subject-matter of each appeal is  different. The  case before  us is stronger still for the  application of section 11 because the appeals filed in the  District Court  arose not  out of one proceeding but out of 2 different suits, one by the appellant and the other by the  respondents.  The  failure  of  the  respondents  to challenge the decision of the District Court in so far as it pertained to  their suit attracts the application of section 11 because to the extent to which the District Court decided issues arising  in the  respondents’ suit against them, that decision would  operate as  res judicata  since it  was  not appealed against.      It is  necessary to  add that  the decision rendered by the High  Court by its judgment of remand dated July 8, 1964 in Second Appeal No. 1149 of 1960 that the contention raised by the  respondents is not barred by res judicata can be re-

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opened in this appeal against the final judgment of the High Court. The  decision of  this Court in Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr.,(2) is directly in point on this  question. Relying  upon certain  decisions  of  the Privy  Council   it  was   held  by   this  Court   that  an interlocutory order  which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not  taken, could  be challenged  in an  appeal from the final decree  or order.  Accordingly, the  circumstance that the remanding  judgment of  the High  Court was not appealed against, assuming  that  an  appeal  lay  therefrom,  cannot preclude the  appellant from  challenging the correctness of the view taken by the High Court in that judgment.      In view  of our  decision that the contention raised by the respondents  is barred  by res judicata, it must be held that  the   High  Court   was  in   error  in  allowing  the respondents’   appeal    and   accepting   his   contention. Accordingly, we allow this appeal, set aside the judgment of the High  Court and  restore that  of the District Court. In the circumstances, there will be no order as to costs.      We would like to state by way of clarification that our judgment will  not affect the respondents’ right to the flow of water  through  the  appellant’s  land  for  agricultural purposes from 15th Meenam to 15th Vrischigam every year. M.R.                                         Appeal allowed. 82