Judgment:
L. Narasimha Reddy, J.
1. The defendant in O.S. No. 4093 of 1984 on the file of the VI Assistant Judge, City Civil Court, Hyderabad, is the appellant. Late Mohd. Ibrahim Moosa, alone, filed the suit. During the pendency of the proceedings, the sole plaintiff died, and his legal representatives are brought on record. For the sake of convenience, the parties are referred to, as arrayed in the suit.
2. The father of the plaintiff late J. Moosa held vast extent of property, in premises bearing Nos. 4-1-866/1 and 2, at Abids Road, Hyderabad. The plaintiff and three others are his sons. The family partition of the property took place in the year 1978. The shares of the plaintiff and his another brother, by name, Md. Ismail Moosa remained joint. The division between them took place later. It is not necessary to mention, in detail, the items of property, that have fallen to the share of the plaintiff and his other brother. Suffice it to say, that the legal representatives of late Md. Ismail Moosa have leased out the premises, that have fallen to their share, in favour of the defendant, and that a lodge is being run therein.
3. The plaintiff pleaded that the partition between himself and his other brother is complete, in all respects. He stated that there existed a pump room on the southern side of his property and during acute scarcity of supply, water used to be supplied through pumps, from that place to the lodge, run by the defendant. It was alleged that during the absence of the plaintiff, on 11-12-1984, the defendant had laid a pipeline to the sump, from a bore-well, through the open land of the plaintiff. Ultimately, the plaintiff prayed for the relief of declaration, that the defendant had illegally laid the water pipeline, through the plaintiffs property, and sought for mandatory injunction against the defendant, for removal of the same.
4. The defendant filed a written-statement and pleaded that the pump room and sump was common for her lessor and the plaintiff. She pleaded that the plaintiff did not have any exclusive right vis-a-vis the sump, and the laying of pipeline did not infringe his rights in any manner.
5. Through his judgment dated 31-1-1990, the trial Court decreed the suit, in part, to the extent of requiring the defendant to remove that portion of the pipeline, which passed through the entrance to the plaintiffs property, shown in the relevant maps appended to the plaint.
6. The plaintiff filed A.S.No. 67 of 1990, aggrieved by the denial of relief, as to declaration and mandatory injunction, as prayed for; in the Court of Additional Chief Judge, City Civil Court, Hyderabad. The defendant in turn, filed A.S; No. 68 of 1990, assailing the decree granted by the trial Court, against her. Through separate judgments rendered on 11-2-1994, the Lower Appellate Court allowed A.S. No. 67 of 1990 and dismissed A.S. No. 68 of 1990.
7. In the memorandum of second appeal, the defendant had stated as though it was filed against the judgments and decrees in A.S.Nos. 67 and 68 of 1990. However, when it was pointed out, as to how one second appeal can be preferred against the decrees in two first appeals, learned Counsel for the defendant has submitted that the second appeal be restricted to the one, against the judgment and decree in A.S.No. 67 of 1990.
8. Sri T.S. Anand, learned Counsel for the defendant (appellant) submits that though the suit was for the relief of declaration, that the laying of pipeline by defendant, connecting the pump room was illegal, and for mandatory injunction, for removal of the same; the Lower Appellate Court went beyond the scope of the suit and declared that the pump room was the exclusive property of the plaintiff. He contends that when even according to the plaintiff, the water was being supplied through the pump and sumps, in the common room, to the lodge, run by the defendant, there was no justification, either by the trial Court, or for the Lower Appellate Court, in granting the relief of declaration or mandatory injunction for removal of the pipeline.
9. Sri Vilas Afzulpurkar, learned Senior Counsel appearing for the plaintiff has raised an objection, as to the maintainability of the second appeal. He contends that two appeals have arisen out of the decree in O.S.No. 4093 of 1984, and in both the appeals, the judgments were rendered against the defendant. He points out that, when the defendant had suffered decrees, in two separate appeals, arising out of the same suit, it was obligatory on her part, to have preferred two separate second appeals, and failure to do so, would attract the principle of res judicata. On merits also, learned Senior Counsel submits that the decrees passed by the Lower Appellate Court are well, within the scope of the suit.
10. Both the learned Counsel have relied upon several precedents, in support of their contentions, particularly on the issue of maintainability of the second appeal.
11. The facts, leading to the second appeal, have already been stated, with permissible brevity. The relief claimed by the plaintiff was in two parts : The first part was, for declaration, that the laying of water pipeline by the defendant through the open land, lying in between two mulgies, shown in the suit plan; was illegal : and the second was, in the form of mandatory injunction against the defendant, for removal of the said pipeline. The trial Court framed two issues, touching on these two appeals.
12. The plaintiff was examined as PW-1 and he filed Exs.A-1 to A-6. On behalf of the defendant, DW-1 was examined and Exs.B-1 to B-29 were marked. The suit was partly decreed, to the extent of requiring the defendant, to remove that part of the pipeline, which has passed through the open land belonging to the plaintiff. The plaintiff and defendant filed two separate appeals, and both the appeals ended against the defendant.
13. Two points arise for consideration in the second appeal namely:
(a) whether the judgment and decree of the Lower Appellate Court in A.S. No. 68 of 1990 would operate as res judicata, against the judgment and decree in A.S. No. 67 of 1990;
(b) whether the relief, granted by the Lower Appellate Court, had exceeded the scope of the suit.
Ordinarily, the principle of res judicata, contained in Section 11 of the CPC, gets attracted, where an issue, that was decided by the Court, in an earlier set of proceedings, is raised in subsequent proceedings, as between the same parties, and in relation to the same subject-matter. However, instances are not lacking, where the principle would apply, in situations where, out of several proceedings, that have ensued between the same parties, the aggrieved party had chosen to avail the relief only as regards some of them. The left-over decree, order or proceedings, if it had a bearing on the adjudication, in the other set of proceedings, would operate as res judicata. For instance, if two suits, in relation to the same subject-matter, and as between the same parties, were tried and decided, through a common judgment, resulting in two separate decrees, and appeal is filed only against one such decree, the left-over decree would operate as res judicata in the appeal. Similarly, if one suit has given rise to two appeals, and the decrees passed therein are not identical, the party against whom such decrees have been passed, would be exposed to the consequences, flowing from res judicata, in case, he omits to file appeal against one of them. Two judgments rendered by the Supreme Court on this aspect would provide adequate guidance.
14. In Narhari v. Shankar : [1950]1SCR754 , a suit was filed for recovery of possession of 2/3rds of the suit schedule property. The relief in respect of 1 /3rd was claimed against defendants 1 to 4, and the remaining 1/3rd against defendants 5 to 8. The trial Court decreed the suit. The two sets of defendants filed two separate appeals, before the first appellate Court. Both the appeals were allowed. The plaintiff filed second appeal in time against the decree passed in the appeal preferred by defendants 1 to 4. Against the decree in the first appeal filed by defendants 5 to 8, the plaintiff presented a second appeal with delay. The High Court refused to condone the delay and thereby, the corresponding second appeal came to be dismissed. The High Court dismissed the second appeal filed against defendants 1 to 4 also, on the ground that the rejection of the other second appeal operates as res judicata. The Supreme Court took the view, that the purport of the decrees passed by the first appellate Court was identical in all respects, and in that view of the matter, one second appeal filed by the plaintiff was maintainable.
15. In Badri Narayan v. Kamdeo Prasad : [1962]3SCR760 , a different situation, which, however, involved the application of the same principle; fell for consideration. The election of a returned candidate was challenged before the Election Tribunal, by a defeated candidate, alleging grounds of corrupt practices. A further prayer was made, to declare him as elected. The Tribunal allowed the Election Petition and set aside the election of the returned candidate, on the ground that he resorted to corrupt practices. However, it rejected the second limb of the prayer. Both the parties filed appeals before the High Court. Appeal No. 7 of 1958 preferred by the returned candidate was dismissed on a different ground, namely, that he held the office of profit. Appeal No. 8 of 1958 preferred by the Election Petitioner, i.e., defeated candidate, was allowed and he was declared as elected. Though the returned candidate suffered these two judgments in these two appeals, he preferred appeal before the Supreme Court only against the judgment of the High Court in the appeal No. 8 of 1958. The Supreme Court held that failure of the returned candidate to prefer appeal against the judgment of the High Court in the Appeal No. 7 of 1958, attracts the principle of res judicata and dismissed his appeal. The ratio of the judgment in Narhari's case (supra), was distinguished. The Supreme Court held as under:
Para 15 :-It is true that both the appeals Nos. 7 and 8 before the High Court arose out of one proceeding before the Election Tribunal. The subject-matter of each appeal was, however, different. The subject-matter of appeal No. 7 filed by the appellant related to the question of his election being bad or good, in view of the pleadings raised before the Election Tribunal. It had nothing to do with the question of right of respondent No. 1 to be declared as duly elected candidate. The claim on such a right is to follow the decision of the question in appeal No. 7 in case the appeal was dismissed. If appeal No. 7 was allowed, the question in appeal No. 8 would not arise for consideration. The subject-matter of appeal No. 8 simply did not relate to the validity or otherwise of the election of the appellant. It related to the further action to be taken in case the election of the appellant was bad, on the ground that a Ghatwal holds an office of profit. The decision of the High Court in the two appeals, though stated in one judgment, really amounted to two decisions and not to one decision common to both the appeals.....We are therefore of opinion that so long as the order in the appellant's appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a property nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that that finding is incorrect.
16. These two judgments in turn, came to be dealt with by the Division Bench of this Court in Natesa Chettiar v. Krishnaiah : AIR1971AP179 . On finding that the facts of that case were similar to those, in Narhari's case (supra), the principle laid therein was applied.
17. Reverting to the facts of the present case, it is evident that two appeals arose out of the same suit, and the judgments therein went against the defendant. Had the subject-matter of both the appeals been one and the same, there would not have been any difficulty in applying the principle laid down in Narhari's case (supra). However, it is not so. A.S. No. 67 of 1990 was directed against the denial of the relief of declaration, whereas A.S. No. 68 of 1990 was filed challenging the decree of mandatory injunction granted by the trial Court. The Lower Appellate Court disposed of two appeals through separate judgments. The parties and subject-matter are common. Therefore, the principle laid down in Badri Narayan 's case (supra), squarely applies to the facts of this case. In that view of the matter, the second appeal is barred by the principle of res judicata, on account of the failure of the defendant, to prefer a second appeal against the judgroent and decree in A.S.No. 68 of 1990.
18. Strictly speaking, nothing should remain, once the second appeal is found to be barred by res judicata. However, this Court is of the view that the second point can still be dealt with, to find out whether the judgment of the Lower Appellate Court in A.S.No. 67 of 1990 had exceeded the scope of the suit. It is possible for the respondent, to dissuade the Court, to address itself to that issue, which has become final, by operation of the principle of res judicata. But the second appeal as a whole, may not become barred or without jurisdiction. It is in this context, that the question as to whether the Courts below exceeded the scope of the suit, while granting the relief.
19. As noticed in the previous paragraphs, the declaration sought for, by the plaintiff, was, as to the legality of the action of the defendant in laying the pipeline. If the pleadings and evidence supported the contentions of the plaintiff, the maximum that can be done is, to declare that the laying of pipeline by the defendant, at the place indicated in the plaint map; is illegal. The trial Court rejected this part of the relief to the plaintiff. It proceeded as though the pump room is common to both the parties. The Lower Appellate Court reversed the decree of the trial Court in this regard and granted the said relief. However, in that process, it proceeded to make certain observations in its judgment, indicating that the common room, where the sump was existing, is the exclusive property of the plaintiff. The relevant observation of the Lower Appellate Court reads as under :
Para-10: '...When Ex.A. 5 itself is verified, it is clear that the property including the pump room was allotted to the plaintiff herein, as it is in one clairii allotted to his share. The entire property, (which has) fallen to the share of the plaintiff is mentioned in red colour including the pump room. Therefore, it cannot be said that the plaintiff is not the exclusive owner of the pump room. Therefore, the plaintiff is entitled to remove the pipe line from the point where it enters into the pump room.
It is obvious that this observation travels beyond the scope of the suit, its pleadings and prayer. So is the case, with the assumption of the trial Court that the facility is common to both. It hardly needs any emphasis that no Court can grant a relief to a party beyond what is claimed in the proceedings. Therefore, the judgments of the Courts below, need to be corrected in this regard, though the decree as such, may not warrant any interference.
20. For the foregoing reasons, the second appeal is dismissed, however, by directing that the observations of the trial Court and the Lower Appellate Court, as to the entitlement of the parties, vis-a-vis the common room in Exs.A-1 and A-4 is the exclusive property of the plaintiff, shall stand deleted. It is also made clear that it shall be open to the parties to seek the relief of declaration, as to title over the said common room, in a properly constituted proceedings, if they are so advised. There shall be no order as to costs.