TaxTMI 
TaxTMI 
1955 (10) TMI 50
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....bar Jain Vidyalaya. In between the building of the said temple and the school i.e. on the back and the two sides of the temple other than the front side, there is vacant land and that is the subject of dispute between the parties. On 16-1-1946, Shri Parshwanath Digamber Jain Vidyalaya Society through its General Secretary, Shri Gulabchand son of Shivlal Taya brought a suit which has given rise to the present appeal. It was averred by the plaintiff that the land, whose boundaries were given in the plaint, was in the owner-ship and possession of the plaintiff, that the defendants were trying to make illegal encroachment on its Chowk and Chabutra, that on the southern side near the temple the defendants had constructed a room for Pujari and were further going to construct some Tibaris, that on the western side adjoining the wall of the temple, the defendants had dug out the ground without the plaintiffs' permission, that on the northern side, the defendants had removed some stones from the Chowk and, therefore, it was prayed that the defendants should be directed, to remove the buildings which they had constructed, to fill up the pits which they had dug out to level the grou....
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....nts' favour and the plaintiffs' suit was dismissed. No appeal has been filed against this judgment in this Court. But ft; is on the-basis of this judgment that the respondents' learned advocate has urged that the appeal before us is barred by res Judicata. It is contended that the main issues in both the cases were the same and since the appellants' suit was dismissed, they should have brought an appeal against that judgment. It has been argued that since the decree dated 25-5-1953 has not been appealed against, it has become final and this Court should not, therefore, hear the appeal because if it comes to a contrary decision, there would be two inconsistent decrees. Learned counsel for the appellants has urged in reply that the Additional Civil Judge ought to have kept the suit pending so long as the present appeal was not decided, that the appellants had a right to file an appeal against the decree in the second suit, but their failure to do so does not bar the hearing of the present appeal because the learned Additional Civil Judge has not really decided anything and he has dismissed the suit on the simple ground that it was barred by res judicata. We have....
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....rty. It is clear from the judgment of the Additional Civil Judge that he has not said a single word so far as the merits of the case are concerned. As pointed out above, one issue which was later on framed in that Court on 11-3-1953 was whether the suit was barred by res judicata. The learned Judge applied his mind simply to this question and dismissed the suit on that basis. Thus, what he has really decided is the question whether he was competent to try the suit and decide the issues arising therein or not. We should not be understood to mean that his decision on the question of res judicata was correct. On the other hand, we are of opinion that he should not have gone into the matter when it was brought to his notice that an appeal against the judgment in the first suit was pending in this Court. He should have kept the case pending and waited for the decision of this Court. The trial of the suit was already stayed and he should not have hastened the decision so long as the same matter was sub judice before the appellate Court. It appears that the learned Judge was anxious to reduce the number of cases in his Court and, therefore, he decided the case with the remark ....
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....ed. 'A' preferred an appeal from one of those decrees. The appeal from the other decree was filed after the period of limitation had expired. In those circumstances, it was held by the High Court of Hyderabad that 'A' should have filed separate appeals within the period of limitation and that the first appeal was barred by res Judicata. This view was not approved by their Lordships of the Supreme Court and it was held that since there was only one suit and the appeals had been disposed of by one judgment, it was not necessary to file two separate appeals and the fact that one of the appeals was time-barred did not affect the maintainability of the other appeal. It is true that the facts of the case cited above are a bit different from the facts of the case before us inasmuch as there were two suits and two different judgments in the present case, but the principle involved in the two cases is the same as explained hereafter. In the above case, it was observed by their Lordships that "the estoppel is not created by the decree but it can only be created by the judgment." In the present case also what is very much stressed by learned counsel for the r....