Where a suit in which a counterclaim was made was disposed of and two appeals were filed form the decree and the two appeals after consolidation were disposed of by a single judgment, is a single second appeal challenging the decisions in both appeals maintainable ?

2. The appellate filed a suit for a perpetual injunction in respect of 3.83 Acres of land against the respondent. The respondent raised a counterclaim for a perpetual injunction against the appellant in respect of the very same property. Both of them claimed possession of the property. The trial court found that the appellant is in its possession, and accordingly, it decreed the suit and dismissed the respondent’s counterclaim. This was challenged by the respondent in two appeals. Both appeals were disposed of by a common judgment. The decree of the trial court was reversed. Now the appellant has filed a single second appeal. Learned counsel for the respondent raised the question of its maintainability as a preliminary objection.

3. Heard the learned senior counsel Sri. T. Krishnan Unni appearing for the appellant and Sri. M. Narendra Kumar, the learned counsel appearing for the respondent.

4. In Narhari and others v. Shanker and others (AIR 1953 SC 419), which is one of the several decisions relied on by the appellant, two separate appeals were filed by two sets of defendants against the decree passed in a suit. One of the appeals was dismissed as it was filed beyond the prescribed period of limitation. It was contended that the other appeal was barred by the principle of res judicata. The Supreme Court approved the decision of the Lahore High Court in Mst. Lachmi V. Mst. Bhuli (AIR 1927 Lah. 289) 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. The determining factor is not the decree but the matter in controversy.

5. Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332) was a case where more than one suit were disposed of, from which different appeals were preferred. It has no application to the facts of this case.

6. In P.N. Kesavan and another v. Lekshmy Amma Madhavi Amma (1968 Kerala 154) two defendants preferred separate appeals challenging the decree passed in a suit. The appellate court passed two decrees. A single second appeal was filed. A Division Bench of this court took the view that if two appeals have been filed by two parties in a litigation arising out of one suit, one second appeal alone need be filed against both the decisions, for which it relied on the decision of the Supreme Court in Sheodan’s case (supra). Another decision that has been brought to my notice by the learned senior counsel if of the Madras High Court Packirisamy Mudaliar and another v. Sri. Ranganathan Perumal and others (1998 (2) MLJ 42). Two suit were filed by the same party in respect of the very same property against the very same defendant. The first one was for a perpetual injunction and the second one for return of the amount paid in advance towards the sale consideration pursuant to an agreement for sale. The suits were disposed of by a common judgment. A single appeal was filed. The High Court of Madras took the view that the decrees in both suits may by challenged in a single appeal.

7. A counterclaim set up the defendant in a suit shall have the same effect as a cross-suit, Order VIII Rule 6A declares. But that does not make the counterclaim a separate suit. It is only a claim made in a suit. The relief granted in respect of the counterclaim shall be incorporated in the decree in the suit and shall not be made subject matter of another decree, which is mandate in Order XX Rule 19 C.P.C. Rule 20 in the said Order provides that notwithstanding the incorporation in the decree of the relief in respect of the counterclaim, the decree shall be subject to same provisions in respect of appeal to which it would have been subject if no counterclaim had been made.

8. When a counterclaim