LONANKUTTY versus THOMMAN & ANOTHER

Citation: [1976] SUPP. 1 S.C.R. 74 · Decided: 15-04-1976 · Supreme Court of India · Bench: Y.V. CHANDRACHUD · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
c 
D 
E 
74 
LONANKUTTY 
v. 
THOMMAN & ANOTHER 
April 15, 1976 
[Y. V. CHANDRACHUD, V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.] 
Civil Procedure Code, s. 11, Res judicata, scope of-Co'mmon iudg111ent in 
cross appeals from two suits on identical questions-Second appelll from only 
one suit, whether barred by res judicata. 
Practice and procedure-Remanding judgment not appealed against, whet-
her challen1reab/e in appeal from final decision. 
, 
Two suits were filed in the tria·l court, one by the respondents, claiming 
a prescriptive ea~ment OVeil." the appellant's land for the ingress and egress 
of water, -for agriculture and prawn fishing, and the other by the appellant, 
seeking to restrain the respondents from using his land for the above purposes. 
Due to the time-lag between their respective institution, the two suits, although 
involving common questions, were tried and disposed of separately. 
The res-
pondents' easementary right was upheld in regard to agricultural user but not 
for prawn fishing. 
Cross appeals were filed by the parties against both the 
decrees, ;i.nd the Subordinate~ Judge dismissed all the appeals confirming the 
decrees by a common judgment. Neither side challenged the decrees in appeals 
arising from the respondents' suit, but the respondents moved the High Court 
against the decree in appeals arising from the appellant's suit. The second 
appeal was contested on the ground that it ¥.ras barred by res ;udicata, 
as 
the qu"6tion in it had already been finally decided by the unchallenged decrees 
in the appeals arising out of the other suit. This contention was rejected and 
the appeal was remanded for a fresh hearing. The matter was thereafter dis-
posed of on merits by the Subordinate Judge, and the pre-remand view stood 
confirmed. The High Court a11owed a second appeal by the respondents, up· 
holding their easementary right both for agriculture and prawn fishing. 
In 
appeal therefrom the plea of res iudicata Was raised before this Court, and 
was contested on the ground that the remanding judgment had not been 
appealed against, and the contention was, therefore, barred by res iudicata. 
F 
Allowing the appeal, the Court 
G 
H 
HELD : ( 1) The appeals filed in the District Court arose out of two different 
suits, one by the appeliant and the other by the respondents. The failure of 
the respondents to chaUenge the decision of the District Court in so fa·r as it 
pertained to their suit, attracts the application of section 11, ExpJanatio!1 I, 
Civil Procedure Code, because to the extent to which the District Court decided 
issues arising in the respondents' suit against them, that decision \VOU]d operale 
as res judicata since it v;ras not appealed against. 
[81A-B] 
Sheodan Singh v. Smt. Daryao Kunwar [1966] 3 S.C.R. 300; Badri '!•larayan 
SinRh v. Kamdeo Prasad Singh & Anr. [1962] 2 SCR 759, referred to. 
Narhari v. Shanker [1950] SCR 754, distinguished. 
(2) The circumstance that the remanding judgment of the High Court was 
not appealed against, assuming that an appeal lay therefrom. cannot preclude 
the appellant from cha1lenging the correctness of the view taken by the High 
Court in that judgment. [81 D·E] 
Satyadhan. Ghosal & Ors. v. Smt. Deorajin Debi & Anr. [1960] 3 S.C.R. 
590, followed. 
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LONANKUTTY v. THOMMAN (Chandrachud, !.) 
75 
CIVIL APPELLATE JURISDICTION : 
Civil Appeal No. 1283 of 
A 
1973 
(Appeal by special leave from the judgment and order dated the 
8.4.1971 of the Kerala High Court in S. A. No. 1190/65) 
D. V. Patel and A. S. Nambiar, for the appellant. 
T. C. Raghavan and S. Balakrishnan, for respondents. 
The Judgment of the Court was delivered by 
CHANDRACHUD, J.-This 22-year old litigation concerns the right 
of two adjacent owners to catch prawns on their respective lands . 
B 
Survey No. 673 of Kadamkudi, District Ernakulam, measuring 
about 11 acres originally belonged to the Cochin Government but by 
C 
diverse transfers the title thereto is now vested in the appellant, Lonan-
kutty. 
The land is bounded on the West and South by a river. 
A 
portion of the land on the North-East can be put to agricultural use 
for a part of the year but the land, by and large, is water-logged and 
can profitably be used for prawn-fishing. 
In order to make fishing 
feasible, the appellant has constructed a bund on the western side of 
the land for arresting the flow of the river water. 
The contrivance 
D 
is calculated to permit colle
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