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PETITIONER: RAM GOBINDA DAWAN & ORS.

       Vs.

RESPONDENT: SMT.BHAKTABALA

DATE OF JUDGMENT08/01/1971

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. SHELAT, J.M.

CITATION:  1971 AIR  664            1971 SCR  (3) 340  1971 SCC  (1) 387

ACT: Practice-Res judicata- Land acquisition proceedings-Claim of one party to compensation dismissed for  default-Acquisition of other plots -Interest of parties same-Claim of  title-If earlier decision operates as Yes judicata.

HEADNOTE: Certain plots in a Municipality were acquired under the Land Acquisition Act, 1894, and the predecessor of the appellants and  the  predecessor of the respondents, each  claimed  the compensation. amount on the basis of title.  The matter  was referred  to the Court of the District Judge.  The claim  of the predecessor of the respondents was dismissed for default and  the  claim  of the predecessor of  the  appellants  was therefore  upheld.   Certain other plots pertaining  to  the same  title  and  interest  were  later  .acquired  and  the question arose as to whether appellants or respondents  were entitled  to  the  compensation.   Since  the  test  of  res judicata is the identity of title in the two litigations and not  the  identity  of the  actual  property  involved,  the appellants pleaded that the earlier decision by the District Judge operated as res judicata. HELD : The earlier decision did not operate as res  judicata against the  respondents inasmuch as the  matter  was  not heard  and  finally decided on merits after contest.   If  a matter was heard and finally decided on merits, then such  a decision  operates  as res judicata, even though  an  appeal against  the decision was dismissed on a preliminary  ground such  as  limitation  default in  printing,  or  default  of appearance,  because, it amounts to the appeal  having  been heard and finally decided on the merits whatever might  have been  the  ground of dismissal of the appeal,  and  has  the effect  of  confirming the decision of the  trial  court  on merits.   But if there had been no contest, no  hearing  and final  decision  by any court, at any  stage,  the  decision would not operate as res judicata. [350 A-E] Rai  Lakshmi  Dasi  & Ors. v. Banamali Sen  &  Ors.,  [1953] S.C.R.  154, Putavarthi Benkata Subba Rao & Ors  v.  Valluri Jagannadha  Rao & Ors [1964] 2 S.C.R. 310 and Sheodan  Singh v. Smt.  Daryao Kunwar, [1966] 3 S.C.R. 300, referred to.

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 436 and 437 of 1967. Appeals  from the judgment and decrees dated March 27,  1962 ,of  the Calcutta High Court in First Appeals Nos.  311  and 312 of 1956. D. N. Mukherjee, for the appellants (in all the appeals). The respondent did not appear. 341 The Judgment of the Court was delivered by Vaidialingam,  J.  These  two  appeals  on  certificate  are directed  against  the judgment of the Calcutta  High  Court dated  March  27, 1962 in First Appeals  from  the  Original Decree Nos. 311 and 312 of 1956. Two plots of land bearing No. 936 of Mouza Asansol and  plot No.  9202 of Monza Asansol Municipality were acquired  under the  Land Acquisition Act.  The notification under s.  4  of the  Land  Acquisition  Act  dated  December  13,  1947  was published  in the Calcutta Gazette of 25th  December,  1947. The  declaration  under  s. 6 dated December  30,  1947  was published in the Calcutta Gazette on 8th January, 1948.  For plot No. 936 of Monza Asansol measuring about 31 acres,  the Land  Acquisition Collector awarded a total compensation  of Rs.  1707/-  including  Rs.  13/  1/6  on  account  of   the landlord’s interest.  The entire compensation in respect  of this  plot was directed to be paid to Bhaktabala, Dasi,  the sole respondent in Civil Appeal No. 436 of 1967.  In respect of  plot  No. 9202 of Mouza Asansol Municipality,  the  Land Acquisition  Officer  awarded as compensation a sum  of  Rs. 825/15/6  including Rs. 6/5/6 on account of  the  landlord’s interest.   This entire amount of compensation was  directed to be paid to Bhaktabala Dasi and her sister Subasini Dasi. It  may  be  mentioned that Bhaktabala  Dasi  is  the  first respondent and on the death of Subasini Dasi, her son  Sunil Kumar Roy, who has been impleaded in the proceedings is  the second  respondent in Civil Appeal No. 437 of 1967.   Before the  Land  Acquisition Collector, in respect of  both  these plots, one Kashi Nath Dawn claimed title to the land and  as such  to the entire compensation amount.’ The appellants  in these  two  appeals are the legal representatives  of  Kashi Nath Dawn. The case of Kashi Nath Dawn was that both the plots of  land belonged to Panchanan Roy, husband of Subasini Dasi, against whom  a  money decree had been obtained by one  Jatin  Kumar Roy.   In execution of the money decree (Execution Case  No. 120  of  1929,  Subordinate  Judge’s  Court,  Asansol),  the decree-holder  brought  these two items  and  certain  other properties  to  sale.   Kashi  Nath  Dawn  claimed  to  have purchased  these  items in the Court sale and  obtained  the sale  certificate Ex. 2. The sale was confirmed on  November 27,  1930  and  delivery of possession  was  also  taken  on December 10, 1930.  It was on the strength of this  purchase in  Court auction that Kashi Nath Dawn claimed title to  the two plots. The  case of Bhaktabala Dasi, who alone contested the  claim of  Kashi Nath Dawn was briefly as follows :  Panchanan  Roy had 342 no  title to the properties and that on the other hand  they belonged  to  Ramanugraha Roy, who died leaving  his  widow. Manmohini  and  three  daughters,  Santabala,  Subasini  and Bhaktabala.   On  the death of Ramanugrah a Roy,  his  widow Manmohini  succeeded to the property as life estate  holder. As  Santabala  died shortly after her  father’s  death,  the

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properties  devolved  on  the  other  two  sisters   namely, Subasini   and  Bhaktabala,  on  the  death  of   Marnmohini Panchanan  Roy  had married Santabala and on  her  death  he married her sister Subasini.  Panchanan Roy during the  life time  of his mother-in-law Manmohini was allowed  to  manage the properties.  In the settlement proceedings of 1918-21 he surreptitiously  got his name recorded as owner of one  half share  in the ,estate of his father-in-law in Monza  Asansol and  of the entire interest in Monza  Asansol  Municipality. Panchanan  Roy was never in possession and enjoyment of  the properties  whereas Manmohini Dasi during her life time  and on  her death her ’daughter Subasini and Bhaktabala were  in possession and enjoyment.  There was a partition between the two  sisters  of Monza Asansol property and  in  consequence plot  No. 936 of Monza Asansol was obtained as her share  by Bhaktabala Dasi.  It was on this basis that Bhaktabala  Dasi claimed  exclusive  title to plot No. 936 and the  right  to receive  the entire compensation amount for that land.   She claimed  that in respect of plot No. 9202 of  Mouza  Asansol Municipality, she and her sister Subasini Dasi, had a  title to  half share each and asserted the right to  receive  com- pensation on that basis. In  view  of  the dispute regarding  right  to  receive  the compensation amount, the Land Acquisition Collector referred the  matter  to the Additional District Judge,  Burdwan  for determination  of the said dispute.  The stand taken  before the  Land  Acquisition Collector was reiterated  before  the learned Additional District Judge.  With. reference to  plot No.  936 of Monza Asansol, the learned  Additional  District Judge   held   that  Panchanan  Roy   had   wrongfully   and fraudulently  got  recorded his name as owner  of  the  half share  when  he was managing the property on behalf  of  his mother-in-law Manmohini widow of Ramanugraha Roy.  The Court further held that Panchanan Roy was never in possession  and enjoyment of both the plots in question.  Regarding plot  No 9202  of Monza Asansol Municipality, it was held  that  long before  the  sale  in Execution Case No. 120  of  1929,  the Katiyans   and  the  maps  had  been  published   and   they conclusively  show  that Monza Asansol  Municipality  was  a Monza  different  from  Monza Asansol  with  different  J.L. number.   The sale certificate Ex. 2 under which Kasbi  Nath Dawn  claimed title was scrutinized by the Court which  held that  the  description of the various items  clearly  showed that  no  land of Monza Asansol  Municipality  was  included therein.  The Court did not also I accept the claim of Kashi Nath 343 Dawn that for the purpose of C. S. operation only the  lands within  Mouza Asansol Municipality were separately  recorded and  that they were also included within Monza Asansol.   In this  view the learned Additional District Judge  held  that Kashi Nath Dawn did not purchase in the court sale any  plot of land within Monza Asansol Municipality and as such he had no  title to plot No. 9202.  The court accepted the plea  of Bhaktabala  Dasi that she and her sister Subasini Dasi  were entitled  to  the  compensation  amount  in  equal   shares. Finally  the Additional District Judge held that Kashi  Nath Dawn   was  not  entitled  to  claim  any  portion  of   the compensation amount in respect of the two plots. Kashi  Nath Dawn filed two appeals before the Calcutta  High ,Court,  being First Appeals Nos. 311 and 312 of  1956.   As the Land Acquisition Collector had made separate  references in  respect of each of the plots and as the  two  references were  disposed of separately, though by a  common  judgment, two appeals were filed in the High Court.  The First  Appeal

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No. 311 of 1956 related to plot No. 936 and First Appeal No. 312 of 1956 related to plot No. 9202.  At this stage it  may be  mentioned  that Civil Appeals No. 436 and  437  of  1967 against the decision of the High Court in First Appeals Nos. 311  and 312 of 1956 respectively.  The High Court  did  not -agree  with  the  learned Additional  District  Judge  that Panchanan  Roy had fraudulently got his name entered in  the settlement register as owner of half share in plot No.  936. It  is  the view of the High Court that the plea set  up  by Bhaktabala Dasi that she was absolutely entitled to the said item  has not been substantiated.  The High Court held  that the  settlement  register established that  Panchanan  Roy’s name has been recorded as owner of half share and  Manmohini as  the owner of another half share in the properties  owned by  Ramanugraha Roy in Monza Asansol and that there  was  no fraud  on  the part of Panchanan Roy in having his  name  so entered.   The  High Court further held that  in  the  court sale, Kashi Nath Dawn had purchased the half share owned  by Panchanan  Roy in Monza Asansol and as such he had title  to half  share  in plot No. 936 notwithstanding the  fact  that Kashi Nath Dawn was not able to establish that Pancbanan Roy was  in possession and actual enjoyment of his half  share. In  this  view  the High Court modified the  decree  of  the learned  Additional District Judge and held that in  respect of  plot  No. 936 both Kasbi Nath Dawn and  Bhaktabala  Dasi were entitled to half share each and in that proportion were also entitled to the compensation amount.  As the full right of  Kashi Nath Dawn in plot No. 936 was not  recognised  by the High Court, Civil Appeal 436 of 1967 has been filed. Regarding plot No. 9202 the High Court agreed with the  Land Acquisition Court and held that in the court sale, Kashi 344 Nath  Dawn had not purchased any property in  Mouza  Asansol Municipality  and therefore he had no. title  thereto.   The claim that Panchanan Roy was in possession of this plot  was also  rejected. A plea of res judicata raised by Kashi  Nath Dawn  based  upon Ex. 7 the decree of the  Land  Acquisition Case  No. 242 of 1938, with reference to plot No. 9202,  was also  rejected by the High Court. The request for  adducing additional  evidence made on behalf of Kashi Nath  Dawn  was also  rejected  by  the High Court.   In  consequence  First Appeal  No.  312 of 1956 was dismissed against  which  Civil Appeal No. 437 of 1967 has been filed. We  will first take up the claim of full ownership  made  by Kashi Nath Dawn in respect of plot No. 936 of Monza Asansol, which is the subject of Civil Appeal No. 436 of 1967. Mr.  Dr. N. Mukherjee, learned counsel for  the  appellants, who,   as   we   have  stated   earlier,   are   the   legal representatives of deceased Kashi Nath Dawn, urged that  the High Court should have accepted the plea made by Kashi  Nath Dawn  that  he was entitled to the full  ownership  of  this plot.   The counsel urged that the relevant entries  in  the settlement  registers’ have not been properly construed  ’by the  High  Court.   According to him all  the  rights  which Ramanugraha  Roy  had in plot No. 936 of Monza  Asansol  had accrued to Panchanan Roy, whose rights had been purchased by Kashi  Nath Dawn in court sale.  The High Court having  held that  there  was no fraud perpetrated by  Panchanan  Roy  in having  his  name entered in the settlement  registers,  the full rights of Panchanan Roy in plot No. 936 as the original owner  and  of Kashi Nath Dawn as purchaser  in  court  sale should have been upheld. We  are  not  inclined to accept  this  contention  of  the learned counsel.  No doubt, the learned District Judge  held that Panchanan Roy fraudulently got his name entered in  the

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settlement  registers  when  he was  in  management  of  the properties  during  the  life time of  Manmohini,  widow  of Ramanugraha Roy.  This finding was not accepted by the  High Court.   The High Court has considered the recitals  in  Ex. A,  the Settlement Khatian No. 16 of Mauza Asansol which  is also  a  khatian in respect of the  permanent  tenure  Jagir Nakari Ramakrishna Roy.  The High Court has adverted to  the fact  that in Ex.  A the holders are divided into 17  groups but  the holders of ’ka’ group were described  as  Manmohini wife of Ramanugraha Roy and Panchanan Roy s/o Umesh  Chandra Roy.   These  two  persons  were  also  described  as  being entitled  to 8 g. 1 k. 5 tils each.  Plot No. 936  has  been found to be one of the plots recorded as in khas  possession of  ’ka’ group in Ex.  A. It is on this basis that the  High Court  differing from the learned District Judge  held  that Panchanan Roy had been the owner of half 345 share in this plot and Kashi Nath Dawn as purchaser of  this half  share  of Panchanan Roy was entitled to  half  of  the compensation amount.  Mr. Mukherjee was not able to  satisfy as to how Kashi Nath Dawn was entitled to full ownership  of plot No. 936.  We are in agreement with the decision of  the High Court on this point, and as such hold that there is  no merit in Civil Appeal No. 436 of   1967. Coming to plot No. 9202 of Monza Asansol Municipality Mr. D. N. Mukherjee raised two contentions : (i) the High Court was in   error in holding that Ex. 2, the sale certificate  does not  take in this item and (ii) the claim of the  respondent was  barred  by  res judicate, by the  decree  of  the  Land Acquisition  Court  Ex. 7 and the High Court  was  again  in error in holding that there is no bar of res-judicata. So far as the first contention is concerned, it is an attack on  a finding of fact recorded by the High Court.   We  have already  pointed  out that even the Land  Acquisition  Court held that Kashi Nath Dawn did not purchase in the court sale any property of Panchanan Roy in Mouza Asansol Municipality. The  High Court has agreed with this finding.   The  entire claim of title in respect of both the items was based on the sale certificate Ex. 2. Both the District Judge and the High Court  have held that what was sold in court sale  was  only the  interest  of Panchanan Roy in the permanent  tenure  in respect  of  Mouza Asansol and not in respect of  any  other Mouza.   The High Court has further held that Mouza  Asansol Municipality and Mouza Asansol were different entities  even from  about 1896 and the court sale which took place  in  or about 1930 related only to the properties in Mouza  Asansol. The  description  of  the  properties  given  in  the   sale certificate  Ex.  2, according to the  High  Court,  clearly establishes  that  what  was  sold  in  court  auction   and purchased by Kashi Nath Dawn was only the property that  was situated  in  Mouza  Asansol as defined  by  the  District Settlement  Operations and not a different Mouza Asansol  as it  might  have existed prior to 1896.  The High  Court  has -one  more  elaborately into this aspect than  the  District Court and held that Kasbi Nath Dawn did not purchase in  the court auction any property of Panchanan Roy in Mouza Asansol Municipality.   We find no flaw in the finding of  the  High Court.   Therefore,  on this finding it follows  that  Kashi Nath  Dawn,  through  whom the appellants  claimed,  had  no right, title or interest in plot No, 9202. Faced  with this situation Mr. Mukherjee raised  his  second contention  that  the  claims of  Bhaktabala  Dasi  and  her sister, Subasini Dasi were barred by res-judicata. 346 The bar of res-judicata is pleaded as follows Certain  other

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plots in Mouza Asansol Municipality were acquired under  the Land  Acquisition Act and there was a dispute regarding  the persons  entitled to compensation amount.  Kashi  Nath  Dawn made  a-claim  for payment of the full compensation  as  the owner  of those plots.  That claim was resisted by  Subasini Dasi and her sons and they claimed in turn to be entitled to the  compensation  amount.  But the Land  Acquisition  Court upheld  the  claim of Kashi Nath Dawn and  that  decree  has become  final.  Under Ex. 7 the title of Kashi Nath Dawn  in the  properties  of Mouza Asansol Municipality  having  been recognised, it was no longer open to the respondents herein to urge that Kashi Nath Dawn had no title to plot No.  9202, which  is situated in Mouza Asansol Municipality.  The  High Court  had rejected this plea on the ground that the  claims of  Subasini Dasi in the prior land acquisition  proceedings having  been  dismissed for default, would not  prevent  her from claiming title to other plots pertaining to the  same interest  inasmuch  as  the question  of  ownership  of  the interest as a whole was ’not heard and decided. Mr.  Mukherjee, learned counsel for the  appellants  attacks this  reasoning of the High Court as fallacious.   He  urged that  Subasini Dasi and her sons having made a claim  before the  Land Acquisition Court for payment of  compensation  on the  basis  of  their  title, which  was  rejected  are  not entitled  to,  put forward any further claim to  this  item. This plea of res-judicata raised by Mr. Mukherjee has to  be approached  from two points of view : (i) as a  bar  against Bhakta  bala Dasi and (ii) as a bar against  Subasini  Dasi. We  have already referred to the case set up  by  Bhaktabala Dasi  regarding  the  interest of  herself  and  her  sister Subasini Dasi in plot No. 9202.  This case has been accepted by  both  the courts.  From the nature of the claim,  it  is clear  that  Bhaktab-ala  Dasi was not  claiming  any  title through  Subasini Dasi, on the other hand she  was  claiming half  share in her own right as the daughter of  Ramanugraha Roy and according to her, her sister Subasini Dasi was  also entitled  to an equal share.  Bhaktabala Dasi, it is  admit- ted,  was  not a party to the decree Ex. 7. If that  is  so, there  is no question of any bar of res-judicata so  far  as half  share  of  Bhaktabala Dasi  is  concerned.   Then  the question is whether the claim of Subasini Dasi to half share in this item is barred by Ex. 7.   If    the     appellants’ contention in this regard is accepted they will be  entitled to at least claim the half share of Subasini Dasi in plot No. 9202.   Now  it is necessary to refer to the nature  of  the proceedings covered by Ex. 7. Nine plots of land referred to therein and situate in Monza Asansol Municipality appear  to have  been acquired under the Land Acquisition Act  for  the expansion  of a road level crossing.  There appear  to  have been  disputes amongst various parties with regard to  right to receive compensa- 347 tion  and therefore the matter was referred to the Court  of the District Judge.  Burdwan in Land Acquisition Case No. 42 of 1938.  Neither the actual pleadings in order to ascertain the nature of the claim that was made by the parties nor the judgment  in  the land acquisition case have been  filed  in these proceedings.  The only document that has been filed is the decree Ex. 7. From the decree it is seen that Kashi Nath Dawn  was  party No. 7 and Subasini Dasi and her  sons  were parties  Nos.  9  to  12.  Parties  Nos.  9  to  12  claimed compensation amount as against party No. 7, and the claim of Subasini  Dasi  was  dismissed for default  by  the  learned District  Judge  under  Ex. 7 dated March 3,  1939  and  the result of the decision was that the claim of Kashi Nath Dawn

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was  upheld  and  that of Subasini Dasi  and  her  sons  was rejected, though on default. Mr. Mukherjee, learned counsel for the appellants has  urged that the same title to the property which was in dispute and decided  in Ex. 7 in favour of Kashi Nath Dawn again  arises for  consideration  in  these  proceedings.   The  title  of Subasini Dasi having been once rejected by the court  cannot again be the subject matter of a fresh adjudication.  We are not inclined to accept the contention of Mr. Mukherjee  that Ex. 7 operates as res-judicata in respect of the claim  even of  Subasini  Dasi  and her sons in respect  of  half  share claimed  in plot No. 9202.  Though it is true that  Subasini Dasi appears to have contested the claim of Kashi Nath  Dawn in  the proceedings leading up to Ex. 7, in our opinion,  it cannot  be  said that in those proceedings the issue  as  to title  was  heard  and finally  decided.   We  have  already pointed  out that the claim of Subasini Dasi  was  dismissed for default. Mr.  Mukherjee drew our attention to certain  decisions  and urged  that  the  decision of  the  Land  Acquisition  Court operates as res judicata.  He further urged that even though the  property in the previous land  acquisition  proceedings may have been of a very small extent, when once the title to the  compensation amount which really relates to the  nature of  the title to the property has been raised and  decided, that decision will operate as res-judicata.  The proposition enunciated  by Mr. Mukherjee and set out, above as such  are beyond controversy but we are of the opinion that the  facts before us are totally different. We will now advert to the decisions cited by Mr.  Mukherjee. In Raj Lakshmi Dasi and others v. Banamali Sen and others(1) this  Court had to consider the question whether a  previous decision  on title in land acquisition proceedings  operated as resjudicata in a subsequent suit between the same parties when the (1)  [1953] .CR. 154. 348 question of title was again raised.  The facts in that  case were  briefly as follows : Certain properties were  acquired in  land acquisition proceedings and there was a  triangular contest  about the right to receive compensation  between  A and  B, the rival claimants, and C, a mortgagee from B.  All the  parties  required the question of apportionment  to  be referred  to the Land Acquisition Court.  The court  decided the  question of title in favour of B after  contest.   This decision  was confirmed by the High Court on  appeal.   That means  that  the title of B and his mortgagee C  to  receive compensation amount was upheld by the Land Acquisition Court and the High Court.  A took the matter to the Privy Council, which  reversed the decision of the High Court and the  Land Acquisition  Court and the title of B and C were  negatived. In  a subsequent suit between the same parties the  question of  title  was  again raised and this Court  held  that  the decision  of the Privy Council operated as  res-judicata  in respect  of the subsequent proceedings  notwithstanding  the fact  that B and his mortgagee C did not appear  before  the Privy  Council  and  their claim was  rejected  in  default. Considerable  reliance has been placed by Mr.  Mukherjee  on this decision in support of his contention that Ex. 7 though a  decision  given against Subasini Dasi and  her  sons  ill default of their appearance operates res-judicata.  In  our  opinion, the decision of this  Court  referred  to above  does  not  assist the appellants.   It  is  now  well established  that  where a dispute as to  title  to  receive compensation  amount has been referred to a court, a  decree

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thereon not appealed from renders the question of title res- judicata in a suit between the same parties to the  dispute. A  party in such circumstances cannot be heard to  say  that the value of the subject matter on which the former decision was pronounced was comparatively so trifling that it was not worth  their while to appeal from it.  It is true  that  the test  of  resjudicata is the identity of title  in  the  two litigations  and  not the identity of  the  actual  property involved in the two cases but the previous decision must  be one on a title in respect of which a dispute has been raised and  which  dispute  was heard and finally  decided  by  the court. It is interesting to note that though it was urged that  the decision  of  the  Privy Council was  given  in  default  of appearance  of B and his mortgagee C and therefore the  said decision  will not operate as res-judicata, this  Court  did not hold that a decision given even in the first instance in default  of  appearance  of a party  will  operate  as  res- judicata.  On the other hand, this Court categorically  held that C, the mortgagee had fought out the title of  mortgagor B, both before the Land Acquisition Court and the High Court and had  obtained a judgment in his favour  after  a  full contest. 349 It  is  the view of this Court that the mere fact  that  the mortgagee did not choose to appear before the Privy  Council and  the  decision  of the Privy Council was  given  in  the absence  of  the  mortgagee, is of  no  consequence  as  the decisions of the High Court and the District Court have been given  after  contest.  Therefore it will be seen  that  the decision  of  this Court relied on by Mr.  Mukherjee  is  no authority  for the wide proposition that even if  there  has been  no  hearing  and final decision by any  court  at  any stage,  after  contest, the decision will  operate  as  res- judicata. For  an earlier decision to operate as res-judicata  it  has been held by this Court in Pulavarthi Venkata Subba Rao  and others v. Valluri Jagannadha Rao and others(1) that the same must  have  been on a matter which was  ’heard  and  finally decided’. In  Sheodan  Singh v. Smt.  Daryao  Kunwar(2)  the  question whether  a  decision  given by  the  High  Court  dismissing certain appeal on the ground of limitation or on the ground that  the party had not taken steps to prosecute the  appeal operates  as resjudicata, was considered by this Court.   In that  case A had instituted against B two  suits  asserting, title  to a certain property.  B contested those claims  and also  instituted two other suits to establish his  title  to the  same property as against A. A’s suits were decreed  and B’s suits were dismissed.  B filed four appeals, two appeals against  the  decision given in A’s suits  and  two  appeals against the dismissal of his two suits.  It is seen that all the appeals were taken on the file of the High Court but the two  appeals  filed by B against the decision in  the  suits instituted  by him were dismissed by the High Court  on  the grounds  that one was filed beyond the period of  limitation and the other for non-prosecution.  At the final hearing the High  Court  took  the view that the dismissal  of  B’s  two appeals,  referred to above, operated as resjudicata in  the two appeals filed by B against the decision in A’s suits  on the question of title to the property.  It was urged  before this Court on behalf of B that the dismissal of his  appeals on the grounds of limitation and non-prosecution by the High Court  does  not operate as res-judicata as the  High  Court cannot be considered to have ’heard and finally decided’ the

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question of tit,--.  This contention was not accepted.  This Court  referred  to  instances  where  a  former  suit   was dismissed  by a trial court for want of jurisdiction or  for default of plaintiff’s appearance etc. and pointed out  that in respect of such class of cases, the decision not being on merits, would not be res-judicata in a subsequent suit.   It was  further pointed out that none of  those  considerations apply  to a case where a decision is given on the merits  by the  trial court and the matter is taken in appeal  and  the appeal is dismissed on some (1) [1964] 2.S.C.R.310. (2) [1966] 3 S.C.R. 300. 350 preliminary ground, like limitation or default in  printing. It  was held that such dismissal ’by an appellate court  has the effect of confirming the decision of the trial court  on merits,  and that it amounts to the appeal being  heard  and finally  decided on the merits whatever may be  the  ground. for dismissal of the appeal". It  will be seen from the above reasoning that in  order  to operate  as  res-judicata, the previous decision  must  have been given after the matter was heard and finally decided on merits.   This Court has further held’ that the High  Court, in  that  case,  when  it  dismissed  the  two  appeals  in’ question,  though on a preliminary ground of  limitation  or default  in  printing must be considered to have  heard  and finally   decided  on  merits.   Far  from  supporting   Mr. Mukherjee’s  contention that a decision given in default  of appearance under any circumstance, operates as res-judicata, the  above  decision  lays  down  clearly  that  a  previous decision  to operate as res-judicata must be one in  a  case heard and finally decided on merits. To conclude Ex. 7, in our opinion, does not operate as  res- judicata  even  against the claim of Subasini Dasi  and  her sons  inasmuch  as  the matter was  not  heard  and  finally decided  on  merits after contest by  the  Land  Acquisition Court.  We have already pointed out that if the plea of res- judicata  is not accepted the decision of the  two,  courts, regarding Subasini Dasi’s having in plot No. 9202 half share will have also to be sustained. In the result the appeals fait and are dismissed.  As  there is  no  appearance  for the respondents, there  will  be  no order, as to costs. V.P.S.                                               Appeals dismissed. 351