Objection on the ground of being barred by res judicata due to the decree in two other suits getting finality upheld.

V. Ramaswami, J.

1. The plaintiff in O.S. No. 175 of 1968 is the appellant in this second appeal. That was a suit filed by him as trustee of Dharmaraja Koil, Arkonam, for a declaration that he is the trustee of the said temple and for an injunction restraining one Murugesa Chettiar, the first defendant in that suit, from interfering with his management of the temple properties. A little earlier than that, the defendant Murugesa Chettiar himself had filed O.S. No. 170 of 1967 praying for a declaration that he is the lawfully constituted trustees of the said temple and for an injunction or in the alternative for delivery of possession of the endowed property. The said Murugesa Chettiar also filed O.S. No. 100 of 1968 as a trustee against one Kanna Pandithar for recovery of rest due to the temple.

2. As the common question to be decided in all these three suits was whether Murugesa Chettiar was lawfully constituted trustee or Kandaswami Chettiar, the appellant herein, was a lawfully constituted trustee, of the suit temple, the suits were tried together and by a common judgment, dated 30th April, 1971, the learned Additional Subordinate Judge of Vellore granted a declaration that Murugesa Chettiar is a lawfully constituted trustee and accordingly decreed O.S. Nos. 179 of 1967 and 180 of 1968, filed by him and dismissed O.S. No. 175 of 1968, filed by the appellant herein. Though the judgment was common, three separate decrees were made in the three suits. The appellant preferred A.S. No. 227 of 1971, on the file of the District Court, North Arcot at Vellore, against the decree in O.S. No. 175 of 1968 alone. That appeal was allowed on merits by the learned District Judge holding that the appellant herein was the lawful trustee and not the first respondent, Murugesa Chettiar. The first respondent preferred Second Appeal No. 512 of 1973. On the ground that the judgment of the learned District Judge was too scrappy and too summary amounting to a non-application of the mind to the controversies raised between the parties, this Court allowed the appeal and remanded the matter for fresh disposal. When the matter again came up on remand, the learned District Judge again went into the merits and held that the finding of the trial Court that Murugesa Chettiar, the first respondent herein, was the lawful trustee is correct and that finding does not call for any interference and accordingly dismissed the appeal. It is against this judgment, the present second appeal has been filed.

3. Mr. V. Krishnan, the learned Counsel for the first respondent raised a preliminary objection as to the maintainability of the appeal on the ground that in the first respondent's suit O.S. No. 170 of 1967, a declaration that the first respondent is the lawfully constituted trustee has been given and the suit itself has been decreed, that since the defendant, was a party to that suit and that decree not having been appealed against, that finding had become final and would operate as res judicata in these proceedings taken against the suit filed by the appellant himself though both were tried together. In support, of this contention, he relied on the decision of the Supreme Court in Lomankutty v. Thomman. The learned Counsel for the appellant on the other hand contended relying on the decision in Panchanada Velan v. Vaithinatha Sastrigal (1906) I.L.R. 29 Mad. 333 : 16 M.L.J. 63, and certain other decisions that since the same question as to whether the appellant or the first respondent is the lawfully constituted trustee is agitated in his appeal before the District Court and in this Court, the question is kept alive and it could not be said that any finality could be attached to the earlier judgment, and if on merits this Court were to agree and set aside the judgment of the Courts below, it will supersede automatically the decree made in O.S. No. 170 of 1967 and there was no need for him to file any separate appeal against O.S. No. 170 of 1967. It may be ment