# LONANKUTTY v. THOMMAN & ANOTHER

- **Citation:** [1976] Supp. 1 S.C.R. 74
- **Court:** Supreme Court of India
- **Decided:** 1976-04-15
- **Bench:** Y. V. Chandrachud, V. R. Krishna Iyer, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lonankutty-v-thomman-another-7217
- **Pages:** 8

## Headnote

Civil Procedure Code, s. 11, Res judicata, scope of-Co'mmon iudg111ent in
cross appeals from two suits on identical questions-Second appelll from only
one suit, whether barred by res judicata.
Practice and procedure-Remanding judgment not appealed against, whether challen1reab/e in appeal from final decision.
,
Two suits were filed in the tria·l court, one by the respondents, claiming
a prescriptive ea~ment OVeil." 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, ;i.nd 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 ¥.ras barred by res ;udicata,
as
the qu"6tion 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 a11owed a second appeal by the respondents, up·
holding their easementary right both for agriculture and prawn fishing.
In
appeal therefrom the plea of res iudicata 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 iudicata.
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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 appeliant and the other by the respondents. The failure of
the respondents to chaUenge the decision of the District Court in so fa·r as it
pertained to their suit, attracts the application of section 11, ExpJanatio!1 I,
Civil Procedure Code, because to the extent to which the District Court decided
issues arising in the respondents' suit against them, that decision \VOU]d operale
as res judicata since it v;ras not appealed against.
[81A-B]
Sheodan Singh v. Smt. Daryao Kunwar [1966] 3 S.C.R. 300; Badri '!•larayan
SinRh 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 cha1lenging 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.
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LONANKUTTY v. THOMMAN (Chandrachud, !.)
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## Text

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LONANKUTTY
v.
THOMMAN & ANOTHER
April 15, 1976
[Y. V. CHANDRACHUD, V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.]
Civil Procedure Code, s. 11, Res judicata, scope of-Co'mmon iudg111ent in
cross appeals from two suits on identical questions-Second appelll from only
one suit, whether barred by res judicata.
Practice and procedure-Remanding judgment not appealed against, whether challen1reab/e in appeal from final decision.
,
Two suits were filed in the tria·l court, one by the respondents, claiming
a prescriptive ea~ment OVeil." 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, ;i.nd 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 ¥.ras barred by res ;udicata,
as
the qu"6tion 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 a11owed a second appeal by the respondents, up·
holding their easementary right both for agriculture and prawn fishing.
In
appeal therefrom the plea of res iudicata 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 iudicata.
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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 appeliant and the other by the respondents. The failure of
the respondents to chaUenge the decision of the District Court in so fa·r as it
pertained to their suit, attracts the application of section 11, ExpJanatio!1 I,
Civil Procedure Code, because to the extent to which the District Court decided
issues arising in the respondents' suit against them, that decision \VOU]d operale
as res judicata since it v;ras not appealed against.
[81A-B]
Sheodan Singh v. Smt. Daryao Kunwar [1966] 3 S.C.R. 300; Badri '!•larayan
SinRh 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 cha1lenging 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.
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LONANKUTTY v. THOMMAN (Chandrachud, !.)
75
CIVIL APPELLATE JURISDICTION :
Civil Appeal No. 1283 of
A
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 .
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Survey No. 673 of Kadamkudi, District Ernakulam, measuring
about 11 acres originally belonged to the Cochin Government but by
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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
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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
E
of survey No. 673 belong to the respondents : T'homman 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 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 becaus~,
for prawn-fishing it is necessary that the rrver-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,
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SUPREME COURT REPORTS
[1Q76] SUPPLEMENTARY
·to the river on the south.
the parties.
This is the genesis of the dispute between
The appellant filed Civil Suit No. 666 of 1954 against the respondents for a perpetual injunction restraining them from !Clking w~r
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 olose 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 1ight 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 t!hrough 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 !he 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 dismbsed
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 pn 15th Vrischigam of each year.
From the decree passed in the appellant's suit, two cross-appeals
werll filed in the court 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.
Similarly, two
cross-appeals were filed by the parties as against the decree paBsed
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.
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LONANKUTTY v. THOMMAN (Chandrachud, J.)
77
No further appeal was filed by either side fro mthe decrees passed
by the learned Subordinate Judge in Appeal~ N~s. 1 of 1959 and 17
-0f 1959, which arose out of the respondents. smt.
But respondents
filed a Second appeal in the High ·Court agamst the decree ~assed 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 Noc 1149 of 1960.
Before the High Court it was contended on .be~alf of the ~espoi:
dents that the subordinate Judge had faded to consider the entire evidence in the case and therefore his judgment ·Was vitiated. On the other
hand, the appellants, w)lo were defendii:g the.judgments of the Subordinate Judge, contended. that the quest10n 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
judica/a was rejected by the learned Judge on the ground that since in
the four appeals the Subordinate Judge had passed only one judgment
aud 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 res
judicata 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. 1I90 of I 965 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 the result, the High Court
dismissed the appellant's suit (No. 666 of 1964), giving rise to this
appeal by special leave.
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SUPREME COURT REPORTS
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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 t!he 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 t!herefore, 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 ne.cessary 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 ot!her.
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 schednle 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. Whetlher defendants 1 to 3 have acquired any right
of ea11ement 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.
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LONANKUTTY v. THOMMAN (Chandrachud, !.)
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672 and 667 openly as of right and continuously
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and for the prescribed period?
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
B
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 plillltiffs 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?
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3. Whether the plaintiffs are entitled to the iniunction
prayed for?"
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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
E
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
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an appeal in the District Court against the two decrees.
The learned
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Subordinate Judge, sitting in appeal, had thns 4 appeals before him,
2 arising from each suit.
He confirmed the decrees under appeal and
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dismissed all 11he appeals.
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Respondents did not file any further appeal against the decree
passed by the District Court in the appeals arising out of their suit.
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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 t:he 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
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whether respondents had the easementary right to the flow of water
through the appellant's land for fislhing purposes was directly and substantially .in issue in the respondent's suit.
That issue was heard and
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SUPREME COURT REPORTS
[1976) SUPPLEMENTARY
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 "as given
in an appeal arising out of a suit, which though instituted subs~quently,
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 "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 conrt-fee.
The High Court held that A should
have filed 2 separate appeals and since one of the appeals was timebarrcd, 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( 2 ). 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
(1) [1950] S. C. R. 754.
(2) [1966] 3 S. C. R. 300,
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LONANKUTTY v. THOMMAN (Chandrachud, J.)
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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 sti11 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-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.,(')
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 appea:l 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 ban-ed by res judicata, it must be held that the High Court
was in en-or in allowing the respondents' appeal and acceptin~ 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.
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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 I 5th
_;.
Vrischigam every year.
M.R.
(1) [!9621 3 S. C. R. 759.
\1) \1%1){ 1 S. C.R. 590.
8-833 SCI/76
Appeal allowed.
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