JUDGMENT.— In the second appeal a question of res judicata is raised in the following circumstances:

2. There were two cross-suits between the same parties in the District Munsif’s Court Tirunelveli. One was for injunction. The other was for possession. The injunction suit O.S. No. 629 of 1972, was filed by one Khaja Moideen against three sons of a tailor called Kader Batcha. The suit tor possession, O.S. No. 613 of 1973, was filed, as a counter blast, by the sons of Khader. Batcha against Khaja Moideen. The subject-matter of both the suits was a tailoring business run in the name of “Star Tailoring Mart”. Khaja Moideen claimed that this business exclusively belonged to him. Khader Batcha’s sons, on the contrary, said that Khaja Moideen was only an erstwhile manager of the business. They claimed that there were the owners of the business by right of inheritance from their father. In his suit Khaja Moideen asked that Khader Batcha’s sons be restrained by a permanent injunction from interfering with his running of the tailoring mart. In the other suit, Khader Batcha’s sons asked for a decree directing Khader Moideen to deliver possession of the tailoring mart to them.

3. Both the suits were tried together by the learned District Munsif. Documents were marked in common. Oral evidence also was called in common. At the end of the joint trial, the District Munsif decreed the injunction suit of Khaja Moideen and dismissed the other cross suit lor possession.

4. The sons of Khader Batcha appealed. They preferred, though only one appeal, A.S. No. 413 of 1974, which was an appeal against the decree in the injunction suit. They did not appeal against the decree dismissing their own suit for possession.

5. Before the Sub Court, Khaja Moideen raised an objection that the appeal in the injunction suit which was the one and only appeal between the parties, was barred by res judicata. It was contended that the other decree passed by the District Munsif, which the appellants had not appealed against, would operate as a bar to a decision in this appeal on merits The learned Subordinate Judge, however, held that there was no res judicata since both the decrees had been passed by the trial Court simultaneously under a common judgment after a joint trial. He then proceeded to entertain the appeal before him on the merits, and held, differing from the trial Court’s finding that Khaja Moideen was not the owner of the tailoring mart.

6. In this second appeal brought by Khaja Moideen, Miss. Sridevi, his learned counsel, pleaded the bar of res judicata. She said that the Sub Court’s decision now has brought about a kind of situation which was the very thing that section 11 of the Code of Civil Procedure meant to provide against. Learned counsel pointed out that with reference to one and the same, subject-matter, namely, the ownership of the tailoring mart, there were now two conflicting decisions by two competent Courts, one holding that Khaja Moideen was entitled to run it and the other holding that he was not entitled. Learned counsel further submitted that although the decision in the two suits was simultaneous in the Court of first instance, the decree which was not carried in appeal become final between the parties, and, by the same token, it came to assume the position of a decree passed in a former suit within the meaning of the Explanation I to section 11 of the Code.

7. Miss Sridevi, cited, among other decisions Koshal Pal v. Mohanlal1. In that case a plea of res judicata was raised at the stage of ultimate appeal before the Supreme Court. The judgment under appeal in that case was a common judgment of a High Court by which two second appeals had been disposed of. There were, accordingly, two decrees. But the appellant before the Supreme Court had filed only one appeal against one of the two decrees of the High Court. In these events, the respondent before the Supreme Court raised the plea of res judicata. The Supreme Court upheld this objection and

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