V.M. Jain, J.
1. This regular second appeal has been filed by defendant-appellant Smt Satya Devi against the judgments and decrees of the Courts below whereby the two suits, one filed by Partap Singh and the other Smt. Suhli Devi were decreed and the sale deed in favour of Smt. Satya Devi was held to be illegal and void and the appeal filed by Smt. Satya Devi, was dismissed by the learned District Judge.
2. The facts which are relevant for the decision of the present appeal are that two suits were filed before the trial Court. One suit was filed by Partap Singh plaintiff against Smt. Suhli Devi Smt. Satya Devi and Milkhi Ram, as defendants. It was a suit for possession by way of specific performance. The other suit was filed by Smt. Suhli Devi plaintiff against Milkhi Ram, Smt. Satya Devi and Partap Singh as defendants. It was a suit for declaration with consequential relief of permanent prohibitory injunction. Both the suits were consolidated, vide order dated 20.9.1995 and it was directed that the evidence shall be recorded in the suit titled as Partap Singh v. Suhli Devi etc. and that the evidence recorded in the said suit shall also be read as evidence in the other suit filed by Smt. Suhli Devi against Milkhi Ram etc. After hearing both sides, the learned trial Court decreed both the suits. A decree for possession by way of specific performance of the agreement to sell dated 14.12 1996 was passed in favour of Partap Singh plaintiff and against Smt. Suhli Devi, Smt. Satya Devi and Milkhi Ram defendants, on payment of the balance consideration of Rs. 11,000/- and Smt. Suhli Devi was held to be owner in possession of the suit land. Furthermore, the sale deed executed by Milkhi Ram as general attorney of Smt. Suhli Devi in favour of Smt. Satya Devi was held to be illegal and void and without consideration, being the result of undue influence and misrepresentation and defendants Milkhi Ram and Smt. Satya Devi were restrained from interfering with the possession of Smt. Suhli Devi over the suit land by way of decree for permanent prohibitory injunction and the revenue entries to the contrary were also held to be illegal.
3. Aggrieved against the aforesaid judgments and decrees dated 16.12.1997 passed by the trial Court decreeing both the suits, Smt. Satya Devi defendant filed only one appeal before the District Judge, Hamirpur. In the memorandum of appeal, it was alleged that it was an appeal against the judgment and decrees dated 16.12.1997 in the civil suits Partap Singh v. Smt. Suhli Devi etc. and Smt. Suhli Devi v. Milkhi Ram etc. In the said memorandum of appeal filed by Smt. Satya Devi, Partap Singh was shown as plaintiff-respondent, whereas Smt. Suhli Devi and Milkhi Ram were shown as defendants, while Smt.Satya Devi was shown as the appellant. In the said memorandum of appeal, when the particulars of the suit against which the appeal was filed were mentioned, Smt. Satya Devi appellant had mentioned the particulars of only civil suit No. 305 of 1993 RBT 382/ 1994, which was the suit filed by Partap Singh against Smt. Suhli Devi etc. and the particulars of the other suit filed by Smt. Suhli Devi, had not been given in the memorandum of appeal, where the particulars of the suit appealed against are required to be given. However, in the prayer clause it was prayed that the judgment and decrees in both the suits be set aside and the appeal be accepted. Along with the said memorandum of appeal, Smt. Satya Devi had filed certified copy of the common judgment dated 16.12.1997 and also the certified copy of the decree framed by the trial Court in the civil suit Smt. Suhli Devi v. Milkhi Ram etc. The certified copy of the decree sheet in the other suit filed by Partap Singh against Smt. Suhli Devi etc. had not been filed along with the memorandum of appeal. After hearing both sides, the learned District Judge dismissed the said appeal filed by Smt. Satya Devi, on merits. Aggrieved against the same, Smt. Satya Devi filed the present regular second appeal in this Court, showing Partap Singh and Smt. Suhli Devi as the plaintiffs-respondents. In the memorandum of appeal, reference was made to the judgment and decree dated 26.5.2004 passed by the learned District Judge affirming the judgment and decrees dated 16.12.1997 passed by the trial Court in both the suits. In the prayer clause it was prayed that the appeal be allowed, the judgments and decrees of the Courts below be set aside and the suits filed by Partap Singh and Smt. Suhli Devi plaintiff be dismissed.
4. Notice was ordered to be issued to respondents No. 1 and 2 and the records were also requisitioned. On April 1, 2005 when the appeal came up for hearing before this Court, a preliminary objection was raised by the learned Counsel appearing for the contesting respondents, with regard to the maintainability of the appeal on the ground that out of the two decrees passed by the trial Court by a single judgment, only one was assailed before the lower appellate Court whereby the decree in the other suit had become final and in the face of such a decree, the present appeal can not be maintained. Accordingly, the case was adjourned for hearing the parties on the said preliminary objection. On 28.12.2005 when the matter came up for hearing before me, part arguments were heard and the case was adjourned for remaining arguments.
5. I have heard the learned Counsel for the parties and have gone through the records carefully.
6. As referred to above, there were two suits, one filed by Partap Singh and the other filed by Smt. Suhli Devi. Both the suits were consolidated and it was directed that the evidence recorded in the one suit shall be treated as the evidence recorded in the other suit. Thereafter, both the suits were decreed by a common judgment and decrees dated 16.12.1997. Aggrieved against the same, Smt. Satya Devi, who was the defendant in both the suits, had filed only one appeal before the District Judge. Along with the memorandum of appeal, certified copy of the common judgment dated 16.12.1997 was filed along with the certified copy of one of the decrees i.e. the decree in Civil Suit No. 199 of 91/RBT 18/95 in the suit titled as Smt. Suhli Devi v. Milkhi Ram etc. The certified copy of the decree sheet in the other suit, bearing Civil Suit No. 305 of 1993/RBT 382/94 in the suit titled as Partap Singh v. Smt. Suhli Devi etc. was not filed along with the memorandum of appeal. The said appeal was filed on 27.1.1998 i.e. prior to the coming into force of the Code of Civil Procedure (Amendment) Act, 1999, which came into force with effect from 1.7.2002. Thus, the Code of Civil Procedure, 1908, prior to its amendment in 1999 and 2002, was applicable at the relevant time according to which the memorandum of appeal was required to be accompanied by a certified copy of the decree appealed from arid unless the appellate Court dispenses with the same, also the certified copy of the judgment on which it was founded. In Jagat Dhish Bhargava v. Jawahar Lal Bhargava and Ors. : [1961]2SCR918 , the Hon'ble Supreme Court after considering the aforesaid provisions of Order 41 Rule 1 CPC had held as under:
7. 'Therefore there is no doubt that the requirement that the decree should be filed along with memorandum of appeal is mandatory, and in the absence of the decree the filing of the appeal would be incomplete defective and incompetent'.
8. In view of the provisions of Order 41 Rule 1 CPC, as applicable at the relevant time and in view of the law laid down by the Hon'ble Supreme Court in the aforesaid authority, in my opinion, it would be clear that the appeal which was filed by Smt. Satya Devi before the District Judge, Hamirpur could be treated as an appeal only against the decree passed by the trial Court in the suit filed by Smt. Suhli Devi, inasmuch as, only the copy of the decree passed by the trial Court in the suit filed by Smt. Suhli Devi was filed along with common judgment and the memorandum of appeal and the copy of the decree passed by the trial Court in the other suit filed by Partap Singh was not filed along with the memorandum of appeal and the copy of the common judgment.
9. Once it is found that the appeal filed by Smt. Satya Devi before the District Judge was only against the decree passed by the trial Court in the suit filed by Smt. Suhli Devi against Milkhi Ram etc. and no appeal was filed against the decree passed by the trial Court in the other suit filed by Partap Singh against Smt. Suhli Devi etc., in my opinion, it would be clear that the decree passed by the trial Court in the civil suit Partap Singh v. Smt. Suhli Devi etc. had become final between the parties, since the decree passed in the suit filed by Partap Singh was not appealed against by Smt. Satya Devi and the appeal was filed only against the decree which was passed in the suit filed by Smt. Suhli Devi.
10. Once it is found that the decree passed by the trial Court in the civil suit filed by Partap Singh was not appealed against by Smt. Satya Devi and the said decree had become final between the parties, the next question that comes up for consideration is as to whether the present regular second appeal filed by Smt. Satya Devi against the judgments and decrees of the Courts below would be maintainable, especially when in this Court as well only one appeal has been filed, against the judgment and decree dated 26.5.2004 passed by the District Judge, whereby the appeal filed by Smt. Satya Devi was dismissed. As referred to above, this appeal shall be treated as the appeal filed by Smt. Satya Devi against the decree passed in favour of Smt. Suhli Devi and not against the decree in the other suit filed by Partap Singh.
11. In Ram Parkash v. Smt. Charan Kaur and Anr. RSA No. 215 of 1987 decided on 18.9.1996, a similar point had arisen before this Court. In the said case, two suits were filed. One suit was filed by Arjan Singh against Ram Parkash, while the other suit was filed by Ram Parkash against Arjan Singh The suit filed by Arjan Singh was dismissed by the trial Court, but the appeal filed by Arjan Singh was allowed by the first appellate Court and the suit filed by Arjan Singh was decreed. On the other hand, the suit filed by Ram Parkash had also been dismissed by the trial Court and the appeal filed by Ram Parkash was also dismissed by the first appellate Court. Ram Parkash challenged the judgment and decree of the first appellate Court, whereby the suit filed by Arjan Singh was decreed but Ram Parkash did not challenge the judgment and decree passed by the Courts below, whereby his suit was dismissed by the Courts below. While hearing arguments in the appeal filed by Ram Parkash it came up for consideration before this Court as to whether the said appeal filed by Ram Parkash was maintainable and whether the appeal was barred by principles of res judicata. After considering the law laid down by the Hon'ble Supreme Court in the case Premier Tyres Limited v. Kerala State Road Transport Corporation : AIR1993SC1202 and Ors authorities on the subject, it was held by this Court as under:
Thus, on the basis of the aforesaid factual as well as legal proposition, it can safely be said that where two connected suits have been tried together and the findings recorded in one of the suit have become final in absence of an appeal, the appeal preferred against the findings recorded in the other suit would definitely be barred by the principles of res judicata. This is the ratio of the above cited case law decided by the apex Court of the country. Thus, there is absolutely no necessity to go into other aspects of the appeal, especially when on factual side, as detailed above, the decree, not appealed against by the present appellant passed by the first appellate Court, has become final between the parties which has created a legal bar for the maintainability of the present appeal whereby the decree passed in the other suit has been assailed.
12. Aggrieved against the dismissal of the appeal by this Court, aforesaid Ram Parkash filed Special Leave Petition before the Hon'ble Supreme Court, The Hon'ble Supreme Court vide detailed order dated 3.2.1997 dismissed the Special Leave Petition and upheld the aforesaid order passed by this Court. The order passed by the Hon'ble Supreme Court, while dismissing the Special Leave Petition, is reported as Ram Parkash v. Smt. Charan Kaur and Anr. : [1997]1SCR840 . In the said authority, after reproducing the aforesaid concluding paragraph of the judgment passed by this Court, it was held by the Hon'ble Supreme Court that the High Court was right in concluding that the decree of dismissal of the suit against the petitioner would operate as res judicata under Section 11 CPC in the appeal against which the petitioner had filed the second appeal. Similar view was taken by the Hon'ble Supreme Court in : AIR1993SC1202 , holding that the finality of finding recorded in the connected suit, due to non filing of an appeal, precluded the Court from proceeding with the appeal in the other suit.
13. In view of the law laid down by the Hon'ble Supreme Court in the aforementioned authorities and keeping in view the facts and circumstances of the present case, in my opinion, the present appeal filed by Smt. Satya Devi is liable to be dismissed, since Smt. Satya Devi had filed only one appeal against the two decrees, whereby the suits filed by Partap Singh and Smt. Suhli Devi had been decreed by the trial Court and only one appeal was filed against the decree passed in the suit filed by Smt. Suhli Devi and in this manner, the decree passed in the suit filed by Pratap Singh became final between the parties and the findings recorded therein would be res judicata in the appeal filed by Smt. Satya Devi against the decree in the suit filed by Smt. Suhli Devi.
14. For the reasons recorded above, in my opinion, the present appeal filed by Smt. Satya Devi is liable to be dismissed, especially when no question of law much less a substantial question of law arises for determination in this appeal. Hence the present appeal is dismissed.