PRABHU SONA Vs. POONMA

JUDGEMENT

(1.) THIS is a second appeal brought by the unsuccessful defendants against the judgment and decree of the Additional Commissioner, Jodhpur whereby the judgment and decree of the trial court were reversed and the suit of the plaintiffs decreed.

(2.) A preliminary objection has been raised by the learned counsel for the respondents that this appeal is not entertainable. The facts are that the present respondents had brought a suit on 28. 8. 1953 for declaration of right and grant of permanent injunction against the present appellants in respect of certain agricultural land and well in dispute between the parties. For their part the present appellants had brought a suit about the same property on 13. 3. 1956 in the same trial court. The suit of the present appeallants was decreed by the trial court on 2. 7. 1957, while the suit of the present respondents was dismissed on 14. 5. 1957. The present respondents brought two separate appeals against the judgment and decrees of the trial court in the two separate suits. The learned Additional Commissioner accepted both the appeals by two separate judgments. The judgment in the suit brought by the present respondents was given on 31. 3. 1959, while the judgment in the suit brought by the present appellants was given on 2. 5. 1959. The present appeal before us is against the judgment dated 31. 3. 1959. The present appellants have not brought any second appeal against the judgment of the Additional Commissioner announced on 2. 5. 1959. The learned counsel for the respondents has argued that the judgment and decree of the learned Additional Commissioner bearing the date 2. 5. 59 have become final against the appellants and that if we entertain and accept the present appeal, the result might be two inconsistent decrees. He thus pleaded that the present appeal should be thrown out on the principle of res judicata. At the bar three rulings have been cited, the learned counsel on both sides claiming support for their own respective cases from these rulings. These are A. I. R. 1953 S. C. 419, I. L. R. Raj. 1956, Page 127, and A. I. R. 1953, Mad. P. 139. Before we discuss the application of these rulings to the present case, it is necessary to note that the appellate judgment of the learned Additional Commissioner dated 2. 5. 1959, against which the present appellants have not preferred an appeal merely follows the judgment given by him in the first appeal brought by the present respondents in the present case. For a proper appreciation of the nature of the judgment of the Additional Commissioner dated 2. 5. 1959 we reproduce it in full here: - "this is an appeal against the order of the Assistant Collector, Jalore, which he passed on 2nd July, '57 in Revenue suit No. 54/1954. In this case it is necessary to state that a decision had already been passed in Revenue appeal No. 99/1957 on 31st March,1959, which is equally applicable to this case because the parties are the same and the subject matter is also the same. The learned counsel for both the parties have agreed that the arguments advanced and the decision given in Revenue appeal No. 99/1957 of this court shall equally apply to this appeal. A copy of that decision is attached to this judgment. Poonma and Harji, appellants in this court, were the plaintiffs in original suit No. 22/1956 (Rev. appeal No. 99/1957) while they were defendants in original suit No. 54/1954. As their appeal No. 99/1957 in original suit No. 22/1956 has been accepted, the natural consequence in this appeal is that the appellants succeed. ORDER The appeal is accepted. The order of the lower court is set aside. The decision given in appeal No. 99/1957 stands in this appeal also. The parties to bear their own costs. " It will be seen that by the consent of the counsel for the parties it was agreed that the judgment given in the appeal decided on 31/3/1959 would apply to the appeal decided on 2. 5. 1959, and now that the present appellants have appealed against the judgment dated 31. 3. 1959 and not 2. 5. 1959, the learned counsel for the respondents turns round to say that the appellate judgment given on 2. 5. 1959 operates as res judicata against the present appeal. It was in somewhat similar circumstances that their Lordships of the Rajasthan High Court dismissed an identical preliminary objection in ILR. Rajasthan 1956 P. 127. Their Lordships observed that this sort of preliminary objection meant arguing in a circle and that if it were allowed to stand, the result would be a travesty of justice. The judgment given in appeal in the other case on 2. 5. 1959 is not a separate adjudication of the subject matter in controversy between the parties, but is a mere application of the decision pronounced in the first appeal in the present case on 31. 3. 1959. In no sense can the judgment of 2. 5. 1959 be deemed to be a final determination of the controversy because that determination was done in the first appeal decided on 31. 3. 1959 which the present appellants have assailed before us. In AIR 1947 Madras, P. 143, it was laid down that when the judgment in one case was based on and followed the judgment in the other, though separate decrees were drawn up, an appeal against one of these decrees is not barred by res judicata by reason of the fact that no appeal was filed against the other decree. Again in AIR 1943 S. C. P. 419 their Lordships of the Supreme Court laid down that estoppel is not created by the decree but by the judgment. In the present case, the appellate judgment given by the learned Additional Commissioner on 2. 5. 1959 is not a separate judgment but merely an act of adoption of the judgment given by the same court on 31. 3. 1959 on the same subject matter in controversy between the same parties. Therefore, if no appeal has been brought before us by the appellants against the judgment of 2. 5. 1959 this does not create an estoppel against present appeal. The result of the foregoing discussion is that the preliminary objection against this appeal fails. The appeal will now be heard on merits on the date to be separately appointed for the purpose. .