The principle of res judicata applies when two suits involving substantially the same issue are disposed of under a common judgment and one party fails to appeal the decision in one suit while challenging the decision in the other suit.

JUDGEMENT :- This second appeal raises an interesting question of law about the principle of res judicata.

2. The only question that falls for determination is that when two suits involving substantially the same issue are disposed of under a common judgment, non-filing of an appeal against the judgment and decree in one suit, will operate as res judicata when the decision in the other suit alone is challenged in the appeal.

3. Though in my opinion, the Supreme Court has laid down that the principle of res judicata will be attracted in such cases, vide Koshal Pal v. Mohanlal, AIR 1976 SC 688, followed by Balasubrahmanyam J. in Khaja Mohideen v. Muhaideen Batcha, (1979) 92 Mad LW

28: (AIR 1979 Mad 155) and Lonankutti v. Thomman, AIR 1976 SC 1645, learned counsel for the respondents sought to distinguish these rulings on the ground that the above principle will not be applicable to cases where the two suits were disposed of under a common judgment. Incidentally, the learned counsel claimed support to his above contention from the following observation of the Supreme Court in Narhari v. Shanker, AIR 1953 SC 419 (at p. 420)-

"It is now well settled 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. As has been observed by Tek Chand J. in his learned judgment in AIR 1927 Lahore 289 (FB) (H) mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment. The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When

there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one. Besides, the High Court was wrong in not giving to the appellants the benefit of Sec.5 of the Limitation Act, because there was conflict of decisions regarding this question not only in the High Court of the State but also among the different High Courts in India" (underlining by me).

and the decision of the Andhra Pradesh High Court in K.A. Natesa Chettiar v. Nune Krishnaiah Chetti, AIR 1971 Andh Pra 179. Hence is it, I am persuaded to render a detailed judgment.

4. The facts relevant for the discussion are as hereunder-The appellants before me are the defendants in O.S. No. 874 of 1970, District Munsif Court, Tindivanam. The respondents, the two plaintiffs therein, came forward with the above suit for declaration of their title to the six items of properties and for a permanent injunction against the appellants from interfering with the former's possession and enjoyment of the said property. The defence taken by the first appellant and adopted by the other appellants is that the respondents are not absolute owners, that the first appellant alone is entitled to 4/5th share while the plaintiffs to 1/5th share and that, therefore, the relief for injunction cannot be maintained.

5. Not satisfied with such defence in O. S. No. 874 of 1970, the first appellant before me, brought another suit O.S. No. 154 of 1972 on the file of the same court against the two respondents herein and another, for partition and separate possession of his 4/5th share in the very same six items of properties in respect of which the respondents claimed absolute title and injunction in the other suit O.S. No. 874 of 1970.

6. These two suits were disposed of under a common judgment by the trial