JUDGMENT Raman Nayar, J. 1. These appeals arise out of five suits instituted by the same plaintiff against virtually the same defendant, the karnavan of a joint family, who is the sole defendant in two of the suits and the 1st defendant in the remaining three wherein his two sisters, who have no interest in the dispute except as members of the family and may well be ignored, have also been impleaded as defendants. Four of these suits, O. S. Nos. 211 of 1948, 249 of 1948, 279 of 1948 and 312 of 1948, were instituted in the court of District Munsiff of Althur and the fifth, O. S. No. 29 of 1949, in the court of Subordinate Judge of Palghat. The four suits in the Munsiff's Court were tried together and disposed of by a common judgment, the evidence being recorded in the earliest, O. S. No. 211 of 1948. That suit was, in effect, decreed in part while the remaining three were dismissed. From the decision in O. S. No. 211 of 1948 both the plaintiff and the defendant appealed, and against the dismissal of the remaining three suits the plaintiff appealed. The appeals were to the Sub-Court, Palghat, the plaintiff's appeal from O. S. No. 211 of 1948 being A. S. No. 49 of 1951, and the defendants A. S. No. 39 of 1951, and the plaintiff's appeals from O. S. Nos. 279 of 1948, 289 of 1948 and 312 of 1948 being A. S. Nos. 51 of 1951, 48 of 1951 and 50 of 1951 respectively. Meanwhile, the Sub-Court suit O. S. No. 29 of 1949 became ripe for trial, and at the request of the parties the suit and the five appeals were tried together, the evidence already recorded by the District Munsiff in O. S. No. 211 of 1948 being treated as evidence in the Sub-Court suit and being supplemented by the further examination of the one witness examined for the plaintiff in the Munsiff's Court and by the marking of a few additional documents. The Subordinate Judge by a common judgment dismissed all the five appeals as well as the suit, and the plaintiff has come up on appeal to this court against the decision in all the cases, S. A. Nos. 708, 710, 707 and 709 of 1952 being her second appeals in the Munsiff's Court suits, O. S. Nos. The Subordinate Judge by a common judgment dismissed all the five appeals as well as the suit, and the plaintiff has come up on appeal to this court against the decision in all the cases, S. A. Nos. 708, 710, 707 and 709 of 1952 being her second appeals in the Munsiff's Court suits, O. S. Nos. 211, 289 and 312 of 1948 respectively, and A. S. No. 592 of 1952 being her appeal in the Sub Court suit O. S. No. 29 of 1949. In S. A. No. 708 of 1952 arising from O. S. No. 211 of 1948 the defendant (or rather his legal representatives, the defendant having died meanwhile) has filed a memorandum of cross objections. We have heard all the appeals together, and counsel on both sides have agreed that not merely the evidence but also the pleadings may be regarded as common to all the cases; in other words, that the five suits may be consolidated and treated as one single suit. 2. The dispute is primarily an irrigation dispute, and for a proper understanding of the facts it might be as well to describe the topography of the area concerned with reference to the commissioner's plan, Ext. A1. (All reference will be to the evidence as recorded in the Munsiff's Court suit, O. S. No. 211 of 1948, and if any reference is made to the supplemental evidence recorded in the Sub Court suit, O. S. No. 29 of 1949, special mention will be made). The source of irrigation is a river called the Meenkara river which as will be seen from the plan, flows roughly speaking, from north - east to south - west. The river and the lands on either side of it belong in jenm to the Vengunad Kovilakam. The land immediately adjoining the river on the west, called the Kalluketti Challa land, is held on kanom by the defendant under the kovilakam. To the west of Kalluketti Challa is the land known as Thirukolambu, and to the south and west of Thirumikolumbu is the land known as Kallankuzhi Vattam, these lands also being held by the defendant. West of Kallankuzhi Vattam, on the northern side, is the Thanneerpandal Challa land held on kanom by the plaintiff, and on the southern side is the land known as Devaswom Pattarpallom. To the west of Devaswom Pattarpallom is Kovilakom Pattarpallom. West of Kallankuzhi Vattam, on the northern side, is the Thanneerpandal Challa land held on kanom by the plaintiff, and on the southern side is the land known as Devaswom Pattarpallom. To the west of Devaswom Pattarpallom is Kovilakom Pattarpallom. Devaswom Pattarpallom and Kovilakam Pattarpallom lie to the south of Thanneerpandal Challa and are separated from it by a road running east-west. The Devaswom Pattarpallom and the Kovilakam Pattarpallom are also being cultivated by the defendant on lease. The entire block of lands comprising Kallankuzhi vattam, Thanneerpandal Challa, Devaswom Pattarpallom and Kovilakom Pattarpallom is known compendiously as pattarpallom and, in describing the several lands, they are generally distinguished by the addition of their special names either before or after the name Pattarpallom. (There are some lands belonging to third parties in the midst of the lands named above, but with those lands or their owners we are not concerned.) 3. As already mentioned, the flow of the river is from north-east to southwest, and, as is to be expected, the slope of the lands is from north to south and east to west. The waters of the river are impounded at two places by the construction, from time to time, of tholanas or temporary dams made of brush wood and mud and are then taken to the lands through channels. The upper dam, namely, the northern dam, is known as the Parakkal dam and it is primarily intended for taking water to the Parakkal lands, lying on the eastern side of the river, through a channel running southwards from the dam. The southern dam is called the Ayyappanpara dam and is marked D in the commissioner's plan. From this dam a channel, starting at the point Y, proceeds westwards. At D1 it crosses a water course known as the Kavarathodu by means of a culvert, and at Y2 it is joined by another channel coming from the Kavarathodu. At Y3 the channel branches into two, the northern branch, referred to in the evidence and in the judgments of the courts below as the upper chal, running along Y3 to Y7 where it joins the tank, El, called the Thirumikolumbu Eri. At Y3 the channel branches into two, the northern branch, referred to in the evidence and in the judgments of the courts below as the upper chal, running along Y3 to Y7 where it joins the tank, El, called the Thirumikolumbu Eri. From Y8 which is an opening in the South - western corner of the Thirumikolumbu Eri (but is wrongly marked in the plan a little further to the west) a channel Y8 to Y11 runs southwards with a branch going eastwards from Y10. In the plaintiff's land, Thanneerpandal Chalia, lying a little distance to the east of this channel, is the tank E2, known as the Puthen Eri, and it is the plaintiff's case (as set out in the evidence but not specifically in the pleadings) that the channel has another branch, Y9 Y12 to Y16, following westwards from Y9 and leading into her tank, E2. Further, that there is a channel from Y7 to Y8 along the bund of the tank, E1, so that water can be taken direct from the river to the plaintiff's tank E. 2. (without first emptying itself into the tank El) by means of the channel Y to Y9 Y12 to Y16. This is, however, denied by the defendant. 4. The southern branch called the lower chal proceeds westwards from Y3 along Y17 to Y33 and between Y18 and Y19 if flows through a small tank known as the Man than Eri. This branch it will be noticed flows through the southern portion of the plaintiff's land and serves that portion. 5. The plaintiff, it is no longer in dispute, is also entitled to a portion of the water from the Parakkal dam. This water, it would appear, is taken across the river to the point Y where it enters the channel running westwards from that point. 6. In O. S. No. 211 of 1948 the plaintiff sought a permanent injunction restraining 'the defendant from interfering with the plaintiff's right to water and use of the channels in the manner set forth in the jenmi's demise deeds admitted and acknowledged by the defendant in the partition dated 15-4-1921 and in the kychit dated 29-6-1939.' In support of her prayer the plaintiff alleged that she was entitled to take the Parakkal and Ayyappanpara waters to her lands thought the upper and lower channels running through the defendant's lands. She further claimed that the right to the water from the Parakkal dam and the Thirumikolumbu Eri (namely, the tank, El which, she alleged, lay outside the defendant's holding) belonged exclusively to her and that the defendant had no manner of right whatsoever to either of these two sources. All that he was entitled to was a portion of the water from the Ayyappanpara dam and to the water in the tanks situated in his own holdings. The plaintiff's rights had been acknowledged and vouch-safed by the defendant in the partition deed of his family in 1921 and also in the kychit executed by him to the kovilakam in 1939. Contrary to these undertakings the defendant had filled up the channels leading to the plaintiff's land and also begun to empty the water from the dam and the channels into the river thus, denying water to the plaintiff's land. After exchange of notices in 1946, the defendant in his reply denying the wrongs complained of, the plaintiff's husband inspected the lands in May 1948, and he found that the defendant had, by destroying the channels leading to the plaintiff's land and draining the Thirumikolumbu Eri of its water by diverting it to unauthorised uses, deprived the crops and trees in the plaintiff's land of their due supply of water and thus caused severe loss to the plaintiff. Hence the suit to restrain the defendant from interfering with the rights of the plaintiff. 7. The defendant in his written statement denied all the allegations made by the plaintiff and claimed exclusive title to the water from both the Parakkal and Ayyappanpara dams as also of the Thirumikolumbu Eri which he averced was within his holding. The plaintiff had no right whatsoever to these waters and the direction in the demise by the Kovilakam in his favour 'to the effect that the water from the dams flowing through the chals lying above and below of defendant's lands may be given for the use of the adjoining Pattarpallom lands after fully meeting the requirements of the defendant's lands' vests no legal right in the plaintiff and is unenforceable in law. The upper chal, in fact, does not extend to the plaintiff's land but ends with the defendants Thirurnikolumbu Eri. The upper chal, in fact, does not extend to the plaintiff's land but ends with the defendants Thirurnikolumbu Eri. The plaintiff's land has a plentiful supply of water from the three tanks situated in that land itself and fed by the water flowing from the northern rocky slopes. In any case, the defendant had not filled up any channel, or in any way prevented the flow of water to the plaintiff's land, or caused any damage to her crops. Although the directions in his demise were unenforceable, he had abided by them and the plaintiff had no legitimate grievance whatsoever. 8. The trial court found that the plaintiff had no right over the Thirurnikolumbu Eri but that she had a right to the excess water of the Parakkal and Ayyappanpara dams running through the upper and lower chals after satisfying the defendant's needs in respect of his Thirurnikolumbu land. It found against the plaintiff's case of a direct channel from Y7 to Y8 along the bund of the Thirurnikolumbu Eri and it gave the plaintiff an injunction restraining the defendant from interfering with the plaintiff's use and enjoyment of the water flowing through the channels Y3 to Y7, Y8 to Y16 and Y3 to Y33 after meeting his requirements and without prejudice to the plaintiff's use and enjoyment of the water coming from the Parakkal dam. The findings of the trial court were, for all practical purposes, affirmed by the lower appellate court which, as we have seen dismissed the appeals filed both by the plaintiff and by the defendant. 9. In O. S. No. 279 of 1948 the plaintiff complained that the defendant had trespassed on the eastern portion of her holding, and she claimed recovery of that portion with mesne profits. Her suit was dismissed, and both the lower courts have concurred in upholding the defendant's case that the plaintiff has neither title nor possession within the statutory period. 10. In O. S. No. 289 of 1948 the plaintiff's complaint was that, although according to his demises, the defendant was entitled to irrigate only 263 u paras seed area of land in Thirurnikolumbu holding with the water brought from the river he was in fact irrigating nearly 400 paras seed area with consequent diminution of the water available for the plaintiff. Therefore, the plaintiff wanted an injunction restraining the defendant from using the Ayyappanpara dam water for irrigating more than 263 u paras seed area of land. The defendant denied that there was any such restriction on the use of the water by him and repeated his claim of exclusive title to the dams and the channels and the waters as also his denial of the plaintiff's rights. The courts below have found that there is no restriction on the use of the water by the defendant for his Thirurnikolumbu land and accordingly dismissed the suit. 11. In O. S. No. 312 of 1948, the plaintiff alleged that the defendant had removed a palmyrah pipe which acted as a conduit for taking the river water coming through the two chals to a land called the Puzhayoram Challa land lying south of the Devaswom Pattarpallom and held by the plaintiff of kanom from the Kovilakam. This prevented the plaintiff from raising paddy on that land in the year 1124. The plaintiff asked for a mandatory injunction requiring the defendant to restore the pipe or, in the alternative, for a decree requiring him to pay her Rs. 25 as the cost of the restoration, and also for damages to the tune of Rs. 173-14-6 being the price of 105 paras of paddy, the rent fetched by the land. Here again, the defendant repeated his exclusive right to the river water coming through the two chals and further alleged that the pipe in question was only for the purpose of carrying water from one to another of his own fields, that the pipe had not been removed but was still intact, and that in any case, the plaintiff had no right either to the pipe or to the water flowing through it. The Puzhayorarn Challa land was never irrigated with this water. In dismissing the plaintiff's suit the courts below have come to the concurrent finding that the plaintiff has no rights in respect of the pipe or the water carried by it. 12. The Puzhayorarn Challa land was never irrigated with this water. In dismissing the plaintiff's suit the courts below have come to the concurrent finding that the plaintiff has no rights in respect of the pipe or the water carried by it. 12. In O. S. No. 29 of 1949 the plaintiff repeated the allegations made by her in O. S. No. 211 of 1948 and added that when on the 6th August 1948 her husband went with some coolies and began reopening a part of the channel leading to the plaintiff's land, the defendant obstructed him and that the plaintiff's husband stopped the work on getting a written undertaking from the defendant holding himself responsible for all loss and damage that may accrue to the plaintiff for want of water. Under the demises in his favour the defendant is bound to put up the dam at Ayyappanpara from year to year and to maintain the channels leading from it, for the benefit of himself and the plaintiff and others entitled to the water, levying contribution from them. But contrary to this, the defendant had, in the year 1124 (1948-49) deliberately abstained from constructing the dam at Ayyappanpara and had instead impounded the waters lower down at a place called Thannikundu and diverted it to lands not entitled to the water. He had filled up and destroyed the channels leading to the plaintiff's land, and was using the water of the Thirumilkolumbu Eri for lands not entitled to it. By these acts he had deprived the plaintiff's land of its due supply of water with the result that, in place of the usual yield of 3200 paras of paddy and 25000 bundles of straw, the plaintiff's land in that year yielded only 1622 paras of paddy and 10000 bundles of straw. The plaintiff had to pay Rs. 40 as wages for the coolies she employed on 6-8-1948, and in December 1948 she had to put up a dam at Ayyappanpara at a cost of Rs. 275 of which the defendant was bound to pay his share of Rs. 240. The plaintiff also estimated the cost of restoring the channels filled up by the defendant at Rs. 350, and under all these heads she claimed a total sum of Rs. 5236-5-0 as damages from him. 13. 275 of which the defendant was bound to pay his share of Rs. 240. The plaintiff also estimated the cost of restoring the channels filled up by the defendant at Rs. 350, and under all these heads she claimed a total sum of Rs. 5236-5-0 as damages from him. 13. The defendant set up the same defence as in O. S. No. 211 of 1948 and while repeating that the plaintiff had no right either to the Ayyappanpara dam or to the channels leading from it, denied that there was any entrustment of this dam or the channels to him as alleged in the plaint and denied further that he was under any obligation to maintain them for the benefit of the plaintiff. With regard to the written undertaking mentioned in the plaint his case was that on 6-8-1948 the plaintiff's husband with a large number of followers attempted to open a new channel from the channel flowing southwards from the Thirumikolumbu Eri (namely from Y9 to Y16) and that when the defendant objected there was an altercation. The defendant was overpowered and the letter referred to in the plaint was wrested from him by the plaintiff's husband. 14. The court below has dismissed the plaintiff's suit holding that the plaintiff has no right to the Thirumikolumbu Eri, that the defendant was under no obligation to put up the dam or maintain the channels for the plaintiff's benefit, that there was no evidence to show that the defendant had in any manner interfered with the plaintiff's rights and that, that being so, the mere fact that plaintiff's husband was able to obtain the undertaking referred to could not sustain her claim for damages. 15. S. A. Nos. 709 and 710 of 1952 arising out of O. S. Nos. 312 and 279 of 1948 respectively need not detain us long. No question of law arises in either. The appeals must therefore be dismissed. 16. Turing now to the remaining three appeals, the first question is, 'What are the respective rights of the parties, and, in particular of the plaintiff, with regard to the irrigation system?'. 312 and 279 of 1948 respectively need not detain us long. No question of law arises in either. The appeals must therefore be dismissed. 16. Turing now to the remaining three appeals, the first question is, 'What are the respective rights of the parties, and, in particular of the plaintiff, with regard to the irrigation system?'. We might here observe that, although it was at one stage disputed, it is now conceded that the entire irrigation system, like the land, belongs in jenm to the Kovilakam and that the rights of the parties, to the water as to the land, derives from the grants made by the Kovilakam under the several demises. The best way of determining the right would, therefore, be to study these grants the oral evidence in the case consisting of the testimony of the plaintiff's husband on the one hand the defendant himself on the other is, in any event, of little value except for admissions made and for the purpose of understanding the documents. [Paragraphs 17 to 58 inclusive relating to the discussion of evidence on the irrigation dispute are omitted in this report -- Editor.] 59. We shall now consider two legal objections taken by the defendant. The first is that, sitting in second appeal, we cannot interfere with the findings of fact of the lower appellate court. This objection, of course, does not apply to A. S. No. 592 of 1952 which is a first appeal. Even with regard to the second appeals the findings cannot be regarded as pure findings of fact, for, we have arrived at them by considering the legal effect of the documents of title of the parties. This is a question of law and if in such a matter the lower courts have erred, the error is liable to correction at our hands in second appeal. We do not think that, in this case at any rate, we are driven to the extremely anomalous position of being compelled to accept, in the second appeals disposed of by the same judgment, a finding different from what we have ourselves arrived at in the first appeal concerning the same dispute between the same parties. 60. We do not think that, in this case at any rate, we are driven to the extremely anomalous position of being compelled to accept, in the second appeals disposed of by the same judgment, a finding different from what we have ourselves arrived at in the first appeal concerning the same dispute between the same parties. 60. The second is that the present suits are barred by res judicata by reason of the decision in A. S. No. 96 of 1954 on the file of the Subordinate Judge of Palghat in appeal from O. S. No. 478 of 1953 on the file of the District Munsiff of Palghat. This plea of res judicata could not be taken in the courts below since A. S. No. 96 of 1954, the decision relied upon as constituting res judicata, was rendered only on 26th March 1956 whereas the judgment of the lower appellate court in the present suits was delivered on the 10th August 1951. In C. M. P. No. 802 of 1957 the defendant applied for the reception of copies of the judgment of the trial and the appellate courts in O. S. No. 478 of 1953 as additional evidence in A. S. No. 592 of 1952 for the purpose, expressly stated, of raising the plea of res judicata. That application was allowed by consent and the additional evidence received. Subsequently in C. M. P. No. 992 of 1957 in A. S. No. 592 of 1952 leave was sought to take this plea res judicata and in the circumstances, we are allowing this application despite the objection, more or less formal in nature, taken by the plaintiff. 61. O. S. No. 478 of 1953 on the file of the District Munsiff of Palghat (Originally O. S. No. 284 of 1952 on the file of the District Munsiff, Alathur) was a suit instituted by the present plaintiff against the Kovilakam, as also against all the persons holding lands under it in the locality, irrigable from the Meenkara river, for the enforcement of her water rights. There were 14 defendants in all and defendants 2 and 3 therein are the successors of the defendant in the present suits. (He had died meanwhile and they had succeeded him as managers of the family). There were 14 defendants in all and defendants 2 and 3 therein are the successors of the defendant in the present suits. (He had died meanwhile and they had succeeded him as managers of the family). The pleadings in the suit have not been filed but we find from the judgments that the prayers in the plaint in so far as they are relevant for our purpose were for: (a) a declaration that the plaintiff is entitled to take water from Thirumikolumbu Eri, a share of the water of Ayyappanpara dam and Kavarathodu besides the whole of the Parakkal dam water and Meankara river water on 5th, 6th, 20th, 21st and 22nd days of every Malayalam month as also on Thiruvathira, Punartham and Pushyam days in the month of Makaram every year, bring the same along the suit upper and lower chals exclusively for her benefit, free from obstruction, interruption or interference of any kind whatsoever from defendants 2 to 14 or any one of them; (b) a mandatory injunction against the tarwad of defendants 2 and 3 (namely the tarwad of the defendant in the present suits) to construct and maintain at Ayyappanpara a dam capable of taking, containing and holding the whole of Parakkal dam water and Meenkara river water coming on the said days, to restore and repair the suit upper and lower chals to their original condition right up to their termini in plaintiff's Pattarpallam Thanneerpandal Challa, close sluices, vents and subsidiary chals calculated to divert water from the suit chals, or in any other way diminish the supply of water to the plaintiff's lands on the days aforesaid against defendants 2, 3, 5, to 9 and 14 ; (c) ........................................ (d) ............................................ (d) ............................................ (e) a mandatory injunction against the tarwad of defendants 2 and 3 to close the granite sluice in R. S. No. 277/A and also the vents and chals through which Thirumikolumbu Eri water and suit chal waters are diverted to Kallankuzhi Vattam and Devaswom Pattarpallam holdings; (f) a permanent injunction against the tarwad of defendants 2 and 3, their agents, servants and tenants from taking any portion or Thirumikolumbu Eri water or the water in the suit chals to Kallankuzhi Vattam or Devaswom Pattarpallam; (g) determining the nature and extent of the rights and obligations of the plaintiff and such of the defendants as are found entitled to take the aforesaid river and chal waters and specifying the duties cast on each in the matter of keeping the dams and the chals in proper repair, the extent of contribution to be made by each and the way in which these things have to be done. 62. It will be seen that the suit was a comprehensive suit duplicating in some measure the present suits so far as the defendant's family (which is the real defendant) is concerned. The family (namely defendants 2 and 3 therein) took, among other defences, the plea that the suit was not maintainable in that it was barred by res judicata on account of the decision in O. S. No. 211 of 1948 and the appeal therefrom, A. S. No. 39 of 1951 in the Sub Court, Palghat, namely, the suit which is now in appeal in second appeal No. 708 of 1952. In the trial, the following issue was framed as issue No. 5 : "Whether the suit is barred by the decree in O. S. No. 211 of 1948 of this court and O. S. No. 29 of 1949 of the Sub Court, Palghat". On this issue the trial court held as follows, 'The present suit is barred by the decree in O. S. No. 211 of 1948 and O. S. No. 29 of 1949 of the Sub Court, Palghat to the extent of the findings in those suits.' Nevertheless it proceeded to decree to a substantial extent the reliefs sought by the plaintiff even as against defendants 2 and 3 therein. Defendants 2 and 3 as also most of the other defendants in the suit appealed to the Sub Court, Palghat (the appeal by defendants 2 and 3 being A. S. No. 96 of 1954) and the appeals were heard together. Dealing with issue 5, the learned Subordinate Judge held as follows: 'Differing from the lower court on this issue I find that the suit, so far as it is against defendants 2 and 3 and their tarwad is barred by the decision in O. S. No. 211 of 1948 of the lower court and the appeal therefrom and the decision in O. S. No. 29 of 1949 of this court.' In the result he allowed the appeal, A. S. No. 96 of 1954, and dismissed the suit as against defendants 2 and 3 although, presumably by mistake, in granting a decree in modification of the decree passed by the trial court, in the appeals by the remaining defendants (A. S. Nos. 93 and 99 of 1954) he gave the plaintiff reliefs as against defendants 2 and 3 as well. We are told that the plaintiff has not appealed from the decision in A. S. No. 96 of 1954 dismissing her suit against defendants 2 and 3, although second appeals have been filed to this court by some of the other defendants against the decisions in A. S. Nos. 93 and 99 of 1954. The decision in A. S. No. 96 of 1954 has thus become final and in relation to the present suit that suit, though instituted later, has become the former suit for the purpose of section 11 of the Code of Civil Procedure by reason of Explanation I to that section. 63. We must first observe that there could have been no question of the decision in O. S. No. 211 of 1948 on the file of the District Munsiff of Alathur or in O. S. No. 29 of 1949 on the file of the Sub Court, Palghat, being res judicata under section 11 C. P. C. in the suit, O. S. No. 478 of 1953 on the file of the District Munsiff, Palghat, for, even at the time of the trial of that latter suit the present appeals from the earlier mentioned suits were pending. Those suits had therefore not been finally heard and decided. Those suits had therefore not been finally heard and decided. This was in fact, recognised by the learned Subordinate Judge and it seems to us that his dismissal of A. S. No. 96 of 1954 was not on the principle of res judicata as embodied in section 11 of the C. P. C., but was, on general principles, a refusal to entertain the suit as against defendants 2 and 3 therein (namely the family of the present defendant) on the ground that it was a mere duplication of the earlier suits, O. S. No. 211 of 1948 and O. S. No. 29 of 1949. This is apparent from what he has said in paragraph 31 of his judgment. After showing that the suit as against defendants 2 and 3 was largely a repetition of the earlier suits he goes on to observe; "The appellate court had also defined her rights in respect of both sources of water supply to the plaintiff's lands. Because she was not satisfied with the decree of the appellate court, she has taken up the matter in second appeal. The decision in second appeal is going to finally conclude all points in dispute in respect of these chal waters. If, in the meanwhile, there was any violation of the injunction as given to her by the first court her only remedy was to execute that decree and claim appropriate relief. There was no necessity to drag defendants 2 and 3 also in this suit .................... If she was aggrieved by any infringement of her rights by the other defendants, she had only to file the suit against these defendants. Against the tarwad of defendants 2 and 3, she could have proceeded by executing the decree in the previous suit ........................... At the same time, in para 30 of his judgment, the learned District Munsiff is seen to have observed that in view of the fact that this suit is an offspring of the other former suits and that the contentions now put forward by the plaintiff could have been raised and settled in the former suits he did not propose to give any costs in this suit to the plaintiff. This is practically conceding the position that this suit was an unnecessary repetition of the previous suits. This is practically conceding the position that this suit was an unnecessary repetition of the previous suits. Differing from the lower court on this issue, I find that the suit, so far as it is against defendants 2 and 3 and their tarwad is barred by the decision in O. S. No. 211 of 1948 of the lower court and the appeal therefrom and the decision in O. S. No. 29 of 1949 of this court". Of course an erroneous dismissal of a suit on the ground of res judicata can be res judicata in a subsequent suit. But, in the present case, the dismissal was a mere refusal to entertain the suit because it was a repetition of a former suit which was still pending final decision. It cannot be said that the matter directly and substantially in issue in the present suits and which was directly and substantially in issue in A. S. No. 96 of 1954 was heard and finally decided in that suit. On the contrary what was said was that the decision of the High Court in the present appeals was going to finally conclude the dispute in respect of these matters, in other words that whatever the decision, in that suit (A. S. No. 96 of 1954) that decision in so far as this matter was concerned, was subject to the decision of the High Court in the present appeals. For this reason we reject the plea of res judicata, and we might also say that it cannot, in any case, avail in A. S. No. 592 of 1952 (the only suit in which it is expressly raised), because that is a Sub Court suit which the court which tried the suit, the appellate decision in which it relied upon as res judicata, namely, the court of the District Munsiff, Palghat, was not competent to try. 64. We shall now proceed to give our decision in each appeal in accordance with our findings. 65. Second appeals Nos. 709 and 710 of 1952 from O. S. No. 312 and 279 of 1948 respectively are dismissed with costs. 66. Second appeal No. 708 of 1952 from O. S. No. 211 of 1948 is allowed in part. 64. We shall now proceed to give our decision in each appeal in accordance with our findings. 65. Second appeals Nos. 709 and 710 of 1952 from O. S. No. 312 and 279 of 1948 respectively are dismissed with costs. 66. Second appeal No. 708 of 1952 from O. S. No. 211 of 1948 is allowed in part. In place of the injunction granted by the courts below there will be a permanent injunction restraining the defendant from interfering with the plaintiff's right to the exclusive use of the Parakkal dam water on the 5th, 6th, 20th, 21st and 22nd days of every Malayalam month and on the Thiruvathira, Punartham and Pushyam days in the month of Makaram every year (the days mentioned in Ext. A5 have been modified by a latter demise) and to the exclusive use, for this purpose, of both the upper and lower chals from Y to Y16 inclusive of Y7 to Y8 and Y9 to Y16, and from Y to Y33 on these days as also to the use of the Ayyappanpara dam and Kavarathodu water left after satisfying the defendants needs in respect of his Kallu Ketti chella and Thirumikolumbu lands through the said upper and lower chals. But since in respect of the Ayyappanpara and Kavarathodu water the defendant's Thirumikolumbu land and Eri have precedence over the plaintiff's land and Eri for the irrigation of 263 3/4 paras seed area of land, the plaintiff is content, for a proper working of their respective rights, that she need be allowed during what might be called the non Parakkal days, to take only such of the water of the upper chal as flows out through Y8 after entering the Thirumikolumbu Eri without making use of the direct channel from Y7 to Y8. The plaintiff will not therefore have the use of this direct channel from Y7 to Y8 during the non Parakkal days. The plaintiff will have three-fourths costs throughout in accord, more or less, with the measure of her success. The memorandum of cross objections in this appeal is dismissed with costs. 67. The plaintiff will not therefore have the use of this direct channel from Y7 to Y8 during the non Parakkal days. The plaintiff will have three-fourths costs throughout in accord, more or less, with the measure of her success. The memorandum of cross objections in this appeal is dismissed with costs. 67. In second appeal No. 707 of 1952 from O. S. No. 289 of 1948 the plaintiff's claim for an injunction restraining the defendant from irrigating any land in excess of 263 3/4 paras seed area in Thirumikolumbu holding has to be disallowed, and, although we have found that the plaintiff's land to the extent of 100 paras seed area must have precedence over any extent in excess of 263 u paras seed area in the Thirumikolumbu land, it is not possible to give a workable injunction for securing this right. This appeal is therefore dismissed, and each party is directed to bear its own costs throughout. 68. A. S. 592 of 1952 from O. S. No. 29 of 1949 is allowed in part. The plaintiff will have a decree for one-third of the value of 1378 paras of paddy at the rate of Re. 1-15-6 per para which is the rate claimed in the plaint and which is not disputed and for further sums of Rs. 40/- on account of the wages paid on 6-8-1948 and Rs. 25 being the defendant's share of the cost of putting up a dam at Ayyappanpara in December 1948, in other words for a sum of Rs. 969-5-0 (Rs. Nine hundred and sixty nine - five annas) in all. She will have interest on this aggregate sum at 5? per cent per annum from the date of the plaint. Each party will bear its own costs throughout.