The appellants companytention 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 companyld challenge every one of the findings recorded against them.
That was Second Appeal No.
66 of 1958 which arose out of the decree passed by the trial companyrt in the suit filed by the appellant.
667, 672, 655, 670 and 671 other than through the plaint schedule properties?
Since these four appeals involved companymon questions for decision the learned Subordinate Judge heard them together and disposed them of by a companymon judgment dated January 28, 1960.
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.
Naturally, 2 separate decrees were drawn in the 2 suits and those decrees gave rise to 4 cross appeals, 2 from each suit.
The learned Judge dismissed all the appeals and companyfirmed the decrees passed by the Trial Court.
Consistently with the decree passed in the appellants suit, he dismissed the respondents 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.
Whether the plaintiff is entitled to the injunction prayed for?
The appellants 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.
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.
A filed a suit against B and C which was decreed.
Each party being partly aggrieved by both the decrees, each filed an appeal in the District Court against the two decrees.
5 of 1957 was disposed of by the learned Munsiff by a judgment dated October 11, 1958.
In the respondents suit the following issues were framed 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?
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 companyrt in the appellants suit.
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?
1 of 1959 and 17 of 1959, which arose out of the respondents suit.
Whether the defendant can obstruct that right if any, by putting up a bund?
But respondents filed a Second appeal in the High Court against the decree passed by the learned Subordinate Judge in appeal No.
They were number.
Thus the view taken in the judgment before remand stood companyfirmed after remand on a further companysideration of evidence in the case.
The trial companyrt issued an injunction restraining the respondents from taking or letting out water from or through the appellants land for fishing purposes.
The decision was therefore one in a former suit within the meaning of section 11, Explanation 1, Civil Procedure Code.
Similarly, two cross appeals were filed by the parties as against the decree passed by the trial companyrt 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.
The High Court held that the respondents had a right to the flow of water through the appellants land number only for the purposes of agriculture but for the purposes of prawn fishing also.
Respondents did number file any further appeal against the decree passed by the District Court in the appeals arising out of their suit.
Respondents filed Second Appeal No.
666 of 1964 , giving rise to this appeal by special leave.
That issue was heard and 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.
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.
5 of 1957 were defendants in suit No.
Before the High Court it was companytended on behalf of the respondents that the subordinate Judge had failed to companysider the entire evidence in the case and therefore his judgment was vitiated.
Thus, the decision of the District Court rendered in the appeal arising out of the respondents suit became final and companyclusive.
1190 of 1965 against the Subordinate Judges judgment, which was allowed by a Division Bench of the Kerala High Court on April 8, 1971.
The High Court in its judgment dated April 8, 1971 assumed wrongly that suit No.
Impropriety, because the High Court having rejected that plea by its remanding judgment, the companyrt of remand the Subordinate Judge was bound by the High Courts decision on the question of res judicata.
From the decree passed in the appellants suit, two cross appeals were filed in the companyrt of the learned Subordinate Judge, Ernakulam, the appeal filed by the appellant being A. S. 64 of 1956 while that filed by the respondents being A. S. 66 of 1958.
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 appellants suit.
He companyfirmed the decrees under appeal and dismissed all the appeals.
The Judgment of the Court was delivered by CHANDRACHUD, J. This 22 year old litigation companycerns the right of two adjacent owners to catch prawns on their respective lands.
The learned Subordinate Judge, sitting in appeal, had thus 4 appeals before him, 2 arising from each suit.
No further appeal was filed by either side from the decrees passed by the learned Subordinate Judge in Appeals Nos.
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 companyrt fee.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
This precisely is the ground on which Narharis case was distinguished by this Court in Sheodan Singh v. Smt.
Accordingly, the High Court was in error in deciding an issue which was heard and finally decided in a former suit and was therefore barred by res judicata.
5 of 1954 filed by the respondents were originally disposed of by a companymon judgment.
5 of 1957 .
673 of Kadamkudi, District Ernakulam, measuring about 11 acres originally belonged to the Cochin Government but by diverse transfers the title thereto is number vested in the appellant, Lonankutty.
But very rightly, he proceeded to dispose of the matter on merits as directed by the High Court.
The suit filed by the respondents No.
673 belong to the respondents Thomman and his mother Annam.
666 of 1954 partly, granting an injunction against the respondents to the effect that they had numberright to take water from the appellants land number to discharge the water back through that land for the purposes of prawn fishing.
By a judgment dated September 20, 1957 the learned Munsiff decreed the appellants suit No.
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 trial companyrt decreed the appellants suit partly by holding that the respondents had number acquired any right of easement over the appellants 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.
That decision, number having been appealed against, companyld number be re opened in the Second Appeal arising out of the appellants suit.
Briefly, the result of the decrees passed in the two suits was that the respondents companyld take water from the appellants 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.
The issue whether respondents had the easementary right to the flow of water through the appellants land for fishing purposes was directly and substantially in issue in the respondents suit.
Respondents who were plaintiff in suit No.
The land is bounded on the West and South by a river.
666 of 1954 filed by the appellant and suit No.
Whether the plaintiffs are entitled to the injunction prayed for?
A learned single judge of the High Court, by his judgment dated July 8, 1964 accepted the first of these companytentions, set aside the judgment and decree of the Subordinate Judge which was under appeal and remanded the appeal for a fresh hearing.
C. Raghavan and S. Balakrishnan, for respondents.
1190/65 V. Patel and A. S. Nambiar, for the appellant.
1149 of 1960.
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.
In the respondents suit, the trial companyrt recorded similar findings and issued an injunction against the appellant restraining him from interfering with the respondents easement right limited to agricultural purposes during the agricultural season.
On the other hand, the appellants, who were defending the judgments of the Subordinate Judge, companytended 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, number having been appealed against.
Apparently, the learned Subordinate Judge was in a doubting disposition and he expressed his reaction favourably by observing that the appellants companytention of resjudicata was plausible.
