Where two suits are tried together and are disposed of by the same judgment, but two decrees are drawn up and there is an appeal in only one suit, the appeal is barred as the appellant did not prefer an appeal against the other decree which was against him.

Judgement

P. V. B. RAO, J. :- This appeal is by the plaintiff against the judgment and decree of the learned Additional Subordinate Judge of Cuttack, reversing the decision of the learned First Munsif of Cuttack decreeing the plaintiffs suit for partition of 6 annas interest in Ka schedule property and 8 annas interest in Kha schedule property and for separate possession.

2. The case of the plaintiff is that Nityananda and Raghu were brothers; that the plaintiff is the daughter of Nityananda and the defendant is the son of Raghu; that Gandharba, son of Nityananda died issueless leaving a widow Hemalata since deceased; that Nityananda and Raghu were separate in status though the properties had not been divided by metes and bounds; that the defendant and Nityananda were possessing a 10 annas and a 6 annas share in Ka schedule property and 8 annas share each in kha schedule property; that thereafter Gandharba jointly possessed the properties in respective shares along with the defendant; and that the plaintiff had inherited the properties after the death of Gandharba and had been in joint possession thereof with the defendant and hence filed the suit for partition of her share in the Ka and Kha properties.

3. The defendants contention is that Nityananda and Gandharba were members of a joint family along with himself; that they died in a state of jointness; that Hemalata was not a legally married wife of Gandharba; that on the death of Gandharba the defendant became the sole owner of the property by survivorship and had been in possession thereof; and that the plaintiff had no title and possession of the suit properties and was not entitled to claim any partition of the suit properties.

The defendant also alleged that he filed a title suit No. 278 of 1949 against Hemalata and one Gangadhar Naik and the plaintiff Sumi Debi, for setting aside a kabala executed by Hemalata and for a declaration that Hemalata was not the legally married wife of Gandharba. This suit, title suit No. 278 of 1949 and the present suit in appeal were taken up together for trial and were disposed of by one judgment.

4. The learned Munsif decreed the title suit No. 226 of 1949, that is the suit under the present appeal and dismissed title suit No. 278 of 1949, that is the suit filed by the defendant for declaring the sale deed executed by Hemalata as invalid and not binding and that she was not the legally married wife of Gandharba.

The learned Munsif found that there was a severance of status between Nityananda and the defendant; that the defendant was not the sole survivor of Nityananda and Gandharba; and that the plaintiff succeeded to the properties after the death of Gandharba as his heir, and had been in possession of the suit properties and was therefore entitled to partition.

5. The defendant in title suit No. 226 of 1949 filed an appeal. There was no appeal filed by the defendant Prankrushna against the judgment and decree of the suit tried along with this suit and in which he was the plaintiff.

6. Sumi Debi as a respondent in the appeal before the learned Subordinate Judge raised a preliminary objection to the appeal tht it was barred by res judicata, on the ground that Prankrushna the appellant had not preferred an appeal against the decree dismissing his title suit No. 278 of 1949 and that the question of title to the suit properties was res judicata between the parties to the appeal before the lower appellate Court as the decision in title suit No. 278 of 1949 had become final.

The learned Subordinate Judge overruled this contention relying on the decisions reported in - Lachhmi v. Bhulli, AIR 1927 Lah 289 (A); - Panchanada Velan v. Vaithinatha Sastrigal, 29 Mad 333 (B); - Pappammal v. Meenammal, AIR 1943 Mad 139 (FB) (C); - Shankar Sahai v. Bhagwat Sahai, AIR 1946 Oudh 33 (FB) (D); - Manomohan Das v. Firm Shib Chandra Saha, AIR 1931 Cal 353 (E), in which it was held that there could be no res judicata on the ground that the defendant had not preferred an