Appeal filed only in one case barred by res judicata.

1. This appeal is preferred against the judgment of the Subordinate Judge, Arani rendered in O.S.No.27 of 1985 and the question raised herein is one of res judicata.

2. There were two cross suits between the same parties in the Subordinate Judge's Court, Arani. One was for recovery of possession and the other was for declaration and permanent injunction. The possession suit was filed by the respondent herein in O.S.No.27 of 1985 against the appellants herein. The declaration and permanent injunction suit was filed by the first appellant herein in O.S.No.20 of 1986 against the respondent herein.

3. The subject matter of both the suits was a storeyed house and adjoining vacant site. The respondent herein, in his suit, claimed ownership of the suit property by virtue of sale deed dated 19.5.1983 alleged to have been executed by the appellants herein and sought for recovery of possession from them. The first appellant herein, in her suit, asked for a decree declaring the sale deed dated 19.5.1983 as void and inoperative and for permanent injunction restraining the respondent herein from interfering with their possession of the suit property.

4. Both the suits were tried together by the learned Subordinate Judge. Documents were marked in common and the oral evidence was let in common. At the end, the Subordinate Judge decreed the suit for recovery of possession filed by the respondent herein and dismissed the other suit of the first appellant herein for declaration and permanent injunction.

5. The appellants herein preferred only one appeal, i.e., the present appeal, against the decree in the suit for recovery of possession filed by the respondent. The first appellant did not prefer appeal against the decree dismissing her suit for declaration and permanent injunction.

6. Mr. M.N. Padmanabhan, learned Senior Counsel for the respondent herein, raised a preliminary objection as to the maintainability of the appeal on the ground that in the suit filed by the first appellant in O.S.No.20 of 1986, finding that the sale deed dated 19.5.1983 is valid and operative has been given and the suit is dismissed and the first appellant had not appealed against and that finding has become final and it would operate as a bar to a decision in this appeal on merits by the principles of res judicata. In support of this contention, he relied on the decisions of the Supreme Court and this Court.

7. The first decision on which reliance is placed is Lonankutty v. Thomman and another, AIR 1976 SC 1645 and in that, the Supreme Court has held as follows:

"Thus, the decision of the District Court rendered in the appeal arising out of the respondents' suit became final and conclusive. That decision, not having been appealed against, could not be reopened in the second appeal arising out of the appellant's suit. The issue whether respondents had the easementary right to the flow of water through the appellant's land for fishing purposes was directly and substantially in issue in the respondents' suit. That issue was heard and finally decided by the District Court in a proceeding between the same parties and the decision was rendered before the High Court decided the second appeal. The decision of the District Court was given in an appeal arising out of a suit, which though instituted subsequently, stood finally decided before the High Court disposed of the second appeal. The decision was therefore one in a 'former suit' within the meaning of Section 11, Explanation I C.P. Code. Accordingly, the High Court was in error in deciding an issue, which was heard and finally decided in a 'former suit' and was therefore barred by res judicata."

8. Following the above decision of the Apex Court, V. Ramaswami, J (as the learned Judge then was) held in S. Kandaswami Chettiar as trustee of Dharmaraja Koil, Arakonam v. R.A. Murugesa Chettiar and another, AIR 1983 Mad. 131 as follows:

"It may be pointed out that the judgment of the Supreme Court was followed by