NARHARI Vs. SHANKER

JUDGEMENT

(1.) The suit out of which these appeals arise was one for possession of two-thirds of the land covered by survey No. 214 and for mesne profits. The plaintiffs claim possession on the ground that survey No. 214 was an inam land and according to the family custom, belonged to them exclusively as members of the senior line as against the defendants who were of the junior lines. There are two sets of defendants; Nos. 1 to 4 belong to one branch of the family and Nos. 5 to 8 to another. Each set claim that they are in possession of onethird of the land and maintain that they are entitled to it as their share of the family property. They deny the custom of exclusive possession by, the senior branch, alleged by the plaintiffs. The trial court decreed the suit. From this decree, two separate appeals were taken by the two sets of the defendants to the Sadar Adalat, Gulbarga, each claiming onethird portion of the land and each paid the court-fee to the extent of their share. The first appellate court, i.e., the Sadar Adalat, allowed both the appeals and dismissed the plaintiffs' suit by one judgment dated 30th Bahman 1338 fasli and ordered a copy of the Judgment to be placed on the file of the other connected appeal. On the basis of this judgment, two decrees were prepared by the first appellate court. The plaintiffs preferred two appeals to the High Court. The first was filed on 23rd Aban 1345 fasli and with it was attached the decree passed in the appeal of defendant Nos. 1 to 4. Later, on 17th Azur 1346 Fasli, another appeal was filed and with it the decree passed in the appeal of defendant Nos. 5 to 8 was attached.

(2.) The High Court in its judgment relied on the decision given in - 'Jethmal v. Ranglal', 17 Deccan LR 322 (A). That was a case of a money suit where the plaintiff's claim was partially decreed and from this judgment both the parties had appealed, the plaintiff to the extent of the suit dismissed and the defendant to the extent of the suit decreed. The first appellate court dismissed the plaintiff's suit 'in toto' thus allowing the defendant's appeal and dismissing the plaintiff's appeal, and two separate decrees were made. The plaintiff appealed from one decree only which was passed against him and it was held that the principle of res judicata applied.

(3.) Notwithstanding this ruling of the Judicial Committee of the State, the High Court in several cases, i.e., - 'Nandlal v. Mohiuddin Ali Khan'. 22 Deccan LR 100 (B); - 'Nizamuddin v. Chatur Bhuj', 23 Deccan LR 457 (C); Gayajee Pant v. Habibuddin', 28 Deccan LR 1094 (D) and -'Jagannath v. Sonajee', 29 Decean LR 108 (E), has held that when the suit is one and two appeals arise out of the same suit, it is not necessary to file two separate appeals.