JUDGMENT P. Subramonian Poti, J. 1. These appeals have been referred to the Full Bench because of the importance of the questions arising for decision. Certain interesting aspects of the rule of res judicata call for consideration in these appeals. The facts of the first three appeals may be stated first. They arise out of connected suits. We will deal with the facts which gave rise to S. A. No. 1253 of 1972 later. 2. Three suits, O. S. 53 of 1965, O.S. 313 of 1964 and O. S. 99 of 1965 were tried and disposed of together by the Court of the Munsiff, Attingal. O.S. 53 of 1965 was a suit for partition of 23 items of immovable properties described as items 1 to 23 in the schedule to the suit. This suit was by the members of the tarwad of one Kali Lakshmi claiming these properties as acquired in the names of some members of the tarwad for the tarwad. 12 of those items of properties had been acquired in the name of Kali Lakshmi, 8 items in the name of Kali Lakshmi and 3 of her sons, Mathevan Pillai, Parameswara Pillai and Kochuneelakanta Pillai and 3 other items in the names of Kali Lakshmi and 3 of her sons, Mathevan Pillai, Ayyappan Pillai and Kochunarayana Pillai. All these acquisitions, according to the plaintiffs in O. S. 53 of 1965 enured to the benefit of their tarwad and as members of the tarwad they claim share in these properties. In the meantime O. S. 313 of 1964 had been filed by the heirs of Kochuneelakanta Pillai according to whom some of the properties were acquired in the name of Kali Lakshmi and others in the names of Kali Lakshmi and some of her children and in these properties the acquirers alone had right. 12 items of properties acquired in the name of Kali Lakshmi were shown as A schedule to the plaint in O. S. 313 of 1964. Eight items of properties acquired in the name of Kali Lakshmi and 3 of her children including Neelakanta Pillai were scheduled as B schedule. 3 items of properties acquired in the name of Kali Lakshmi and 3 of her children including Ayyappan Pillai were scheduled as C schedule. Eight items of properties acquired in the name of Kali Lakshmi and 3 of her children including Neelakanta Pillai were scheduled as B schedule. 3 items of properties acquired in the name of Kali Lakshmi and 3 of her children including Ayyappan Pillai were scheduled as C schedule. The case of the plaintiffs in that suit was that those items seen acquired in the name of Kali Lakshmi (A schedule) under Exts. D1 and D2 belonged to Kali Lakshmi, the acquirer and on her death it was inherited by all her eight children of whom Kochuneelakanta Pillai was one and therefore the plaintiffs, as heirs of Kochuneelakanta Pillai had 1/8th share in those items. Since Kochuneelakanta Pillai was one of the four acquirers of the B schedule items, 8 in number, under Ext. D3 sale deed, plaintiffs in O. S. 313 of 1964 claimed that as heirs of Kochuneelakanta Pillai they should get 1/4th share in the properties in B schedule and in addition, since Kochuneelakanta Pillai inherited 1/8th share of the 1/4th of Kali Lakshmi who was a joint acquirer under Ext. D3, the plaintiffs were entitled to 1/8th plus 1/32(9/32) shares in B schedule items. In C schedule items acquired in the names of Kali Lakshmi along with her 3 other children the share claimed by the plaintiffs was only that inherited by Kochuneelakanta Pillai out of the 1/4th that belonged to Kali Lakshmi, namely, 1/32. Thus the suit was laid for partition and recovery of 1/8th share in A schedule, 9/32 share in B schedule and 1/32 share in C schedule in the plaint in O.S. 313 of 1964. 3. Yet another suit was filed by the heirs of Ayyappan Pillai, one of the acquirers for 3 of the items under Ext. P1 sale deed described as items 21 to 23 in the plaint in O. S. 53 of 1965 and as C schedule in O. S. 313 of 1964. That suit was O. S. 99 of 1965. The said 3 items are shown as A schedule in the plaint in that suit. B schedule items in that plaint are the A schedule items in O. S. 313 of 1964, namely the properties acquired in the name of Kali Lakshmi. The C schedule items in the plaint in O. S. 99 of 1965 are the properties taken in by Ext. B schedule items in that plaint are the A schedule items in O. S. 313 of 1964, namely the properties acquired in the name of Kali Lakshmi. The C schedule items in the plaint in O. S. 99 of 1965 are the properties taken in by Ext. D3 sale deed, 8 items described as B schedule in O.S. 313 of 1964 and items 13 to 20 in O. S. 53 of 1965 Thus A to C schedules in O. S. 99 of 1 65 cover all the items in the plaint schedule in the other two suits. In addition there is also a D schedule in that suit. This is described as mortgage right in respect of some suit items to which some special right was claimed. Plaintiffs in O. S. 99 of 1965 claimed that as heirs of Ayyappan Pillai they were entitled to 1/8th share in the properties acquired in the name of Kali Lakshmi, 9/32 share of the properties acquired in the name of Ayyappan Pillai and 3 others and 1/32 share in regard to 8 items acquired in the name of Kali Lakshmi and 3 of her children other than Ayyappan Pillai. Since the properties in all these suits are the same, it is easier to refer to these items of properties with reference to one of the suits and it is agreed at the hearing that reference may be made to the properties as scheduled in O. S. 313 of 1964. The case of the plaintiffs in O. S. 99 of 1965 is similar to the case of the plaintiffs in O. S. 313 of 1964, namely that the items of properties acquired in the name of Kali Lakshmi belonged to her and those items acquired in the name of Kali Lakshmi and her children belonged in equal shares to the specific acquirers. As pointed out, the case of the plaintiffs in O. S. 53 of 1965 is different in that, according to them all these acquisitions enured to the Tarwad and not to the acquirers. Besides these, there is the third case arising out of the contest by another party to these suits. The eldest son of Kali Lakshmi was Mathevan Pillai. He is one of the 4 in whose name the acquisitions were made under Ext. D3 as well as well Ext. D1. Besides these, there is the third case arising out of the contest by another party to these suits. The eldest son of Kali Lakshmi was Mathevan Pillai. He is one of the 4 in whose name the acquisitions were made under Ext. D3 as well as well Ext. D1. The case of the heirs of Mathevan Pillai is that all items of properties seen purchased in the names of Kali Lakshmi as well as Kali Lakshmi and children were acquired with the funds of Madhavan Pillai and therefore those belonged to him and him alone As such, it is said these items were not available for partition either as properties of the tarwad or as properties of the various acquirers. This contention arises on the contest by the 5th defendant in O. S. 313 of 1964 who is the 29th defendant in O. S. 53 of 1965. The three cases were tried jointly and disposed of together. The learned Munsiff found that the properties belonged to the persons in whose names the acquisitions stood. That meant that the plaintiffs in O. S. 313 of 1964 and O. S. 99 of 1965 succeeded. The plaintiffs in O. S. 53 of 1965 lost in their contention that the properties should be divided as properties of the tarwad. But they were entitled to a smaller share since even if the acquisitions were of those in whose names the acquisitions stood the plaintiffs in O. S. 53 of 1965 bad right as members of the tavazhi of Kali Lakshmi to a share in the interest of Kali Lakshmi who figured as an acquirer in all the acquisitions. 4. The plaintiffs in O.S. 53 of 1965 appealed against the decision in that suit as A.S. 159 of 1968. The first plaintiff in O.S. 53 of 1965 was the second defendant in O.S. 313 of 1964. Against the decree in the latter suit she filed an appeal A.S. 161 of 1968. She is also the second defendant in O.S. 99 of 1965. Against the decree in that suit she filed A.S. 160 of 1968. The 29th defendant in O.S. 53 of 1965, the legal representative of Mathevan Pillai, also filed an appeal against the decree in O.S. 53 of 1965 as A.S. 162 of 1968. These four appeals were heard and disposed of together. Against the decree in that suit she filed A.S. 160 of 1968. The 29th defendant in O.S. 53 of 1965, the legal representative of Mathevan Pillai, also filed an appeal against the decree in O.S. 53 of 1965 as A.S. 162 of 1968. These four appeals were heard and disposed of together. The plea of the plaintiffs in O.S. 53 of 1965 that all the properties acquired in the names of the various members of the tarwad belong to the tarwad was accepted by the appellate Court. Necessarily therefore the plaintiffs in the two suits, O.S. 313 of 1964 and 99 of 1965 lost. Since Kochuneelakanta Pillai and Ayyappan Pillai had both died before the commencement of the Hindu Succession Act, the plaintiffs in the two suits did not get even any reduced share as that due to the deceased members which would have been the case had these members died after the commencement of the Act. The plaintiffs in O.S. 313 of 1964 appealed against the decree dismissing their suit in S.A. 911 of 1971. They have challenged the decree in O.S. 53 of 1965 in S.A. 907 of 1971. The 29th defendant in O.S. 53 of 1 65 has challenged the decree in O.S. 53 of 1965 in S.A. 878 of 1971. These are the three Second Appeals, in regard to these suits now pending in this Court. The plaintiffs in O.S. 99 of 1965 whose suit also stood dismissed by reason of the appellate decision did not challenge that decision and that is said to have become final. The plaintiffs in O.S. 313 of 1964 were parties to the suit O.S. 99 of 1965 and they supported the claim of the plaintiffs in that suit, though in regard to the properties in respect of which 9/32 shares was claimed by the plaintiffs in that suit they claimed only 1/32 shares. That was because they too had a case that the acquirers alone were entitled to the items. 5. On the merits, the main controversy that will have to be decided in these Second Appeals is about the title to these properties. The dispute is whether these belonged to the persons in whose name the acquisitions stood or to the tarwad. That was because they too had a case that the acquirers alone were entitled to the items. 5. On the merits, the main controversy that will have to be decided in these Second Appeals is about the title to these properties. The dispute is whether these belonged to the persons in whose name the acquisitions stood or to the tarwad. In the appeal by the 29th defendant in O.S. 53 of 1965, S.A. 878 of 1971, the question is whether these properties belonged to Mathevan Pillai, the eldest son of Kali Lakshmi. In these appeals counsel appearing for the plaintiffs in O.S. 53 of 1965 who are some of the respondents in all the second appeals raises an objection to consideration of the question of title to the properties on the merits. According to him this question cannot be considered on the merits in view of the bar of res judicata. It is said that the decree in O.S. 99 of 1965 having become final by reason of that decree having been left unchallenged ,the plaintiffs in O.S. 313 of 1964 who are also parties to that decree are bound by that decision and the decisions therein that the properties do not belong to the persons in whose names the documents of acquisition stood but to the tarwad operates as res judicata to bar a fresh consideration of the question in these appeals. In answer, it is contended that the bar of res judicata will not operate since the decision in O. S. 99 of 1965 was simultaneous with the decision in O. S. 313 of 1964 and O. S. 53 of 1965 and under such circumstances, as held by the Supreme Court in the decision in Narhari v. Shanker AIR 1953 SC 419 there is no scope for the plea of res judicata. That decision of the Supreme Court has been followed by this Court in Sarah Abraham v. Pyli Abraham AIR 1959 Ker. 75 and Govindan v. Kunhi Kannan Vydier 1963 (1) KLR 400, The correctness of these decisions of this Court was challenged when these appeals came up before the learned single Judge of this Court and later before the Division Bench on reference to that Bench by the single Judge. It is that which led to the reference of these cases by the Division to the Full Bench. 6. It is that which led to the reference of these cases by the Division to the Full Bench. 6. Now we will refer to the facts which has led to the appeal, S. A. 1253 of 1972. That arises from a suit in a different jurisdiction. It has been heard along with these appeal, only because the common question of res judicata arises for decision in all these appeals. That appeal is by the plaintiffs in a suit for recovery of possession of property. The plaintiffs in that suit claimed that the plaint property belonged to them as having been obtained by the deceased father of plaintiffs 1 to 6 and the husband of the 7th plaintiff, one Cherootti. He is said to have obtained the property from the Zamorin of Calicut on a lease. That lease is not evidenced by any record. But it is said that just before the suit the lease was renewed in the name of plaintiffs 2 and 3. Cherutti who was said to be in possession of the property under the lease is alleged to have constructed a house in 1950 in the property and to have let it out to the first defendant. A suit had been filed prior to the institution of this suit as O. S. 317 of 1956 for recovery of the house on the basis of the entrustment by Cherutti to the first defendant. The defendants in that suit were the first defendant in this suit, his brother, the second defendant and the other members of the family. It is while so that the present suit O. S. 399 of 1956 was filed by the same plaintiffs alleging that the plaint property had been trespassed upon by the defendants and therefore the plaintiffs were entitled to recovery of the property. It may be stated here that the suit property in the second suit was the property surrounding the building which was subject matter of the earlier suit. Both the suits were tried together. The defence was that the plaintiffs had no title to the property, that one Govindan Nair was the tenant of the property and that the first defendant had a su tenancy thereof from Govindan Nair under Ext. B3 dated 911948. Whether the plaintiffs had any right to the suit property was an issue in O. S. 317 of 1956. The defence was that the plaintiffs had no title to the property, that one Govindan Nair was the tenant of the property and that the first defendant had a su tenancy thereof from Govindan Nair under Ext. B3 dated 911948. Whether the plaintiffs had any right to the suit property was an issue in O. S. 317 of 1956. By a common judgment both the suits were decreed finding that the plaintiff had title, that the oral lease, was true, that Ext. B3 relied on by the defendants was not for the plaint property and that the subsequent trespass was true. No appeal was filed by the defendants in the suit O. S. 317 of 1956. Execution was taken out and the house which was the suit property therein was recovered by the plaintiffs in that suit. But an appeal was filed from the decree in O.S. 399 of 1956. The appellate court remanded the suit to the Trial Court and a fresh decree was passed on 17121962. This was again subjected to appeal and the matter was again remanded. Thereafter the suit was decreed against the plaintiffs finding that the plaintiffs had no title and that the plaintiffs' title was, at any rate, lost because the plaintiffs were not shown to have been in possession within 12 years of the suit. The appellate court concurred in this decree and found that the plaintiff had failed to prove title and at any rate, to prove subsisting title. Though in the appellate court the contention that the question of title could not be gone into was raised, based upon the plea of res judicata the court did not accept this plea. It is under such circumstances that the plaintiffs have come to this court in Second Appeal. 7. The plea of title has been concurrently found against the plaintiffs and it may not be open to this Court to go into that question afresh if this Court is called upon to adjudicate this question on the merits. But it is said that title could not have been questioned in the face of the rule of res judicata applicable to the facts and circumstances of the case. But it is said that title could not have been questioned in the face of the rule of res judicata applicable to the facts and circumstances of the case. It is said that the decree in O. S. 317 of 1956 having become final, it was not open to the defendants in O.S. 399 of 1956 to dispute the title of the plaintiffs which had been found in the earlier suit. Though this plea of res judicata cannot operate to debar the consideration of the question whether the plaintiffs should lose for failure to prove possession within 12 years of the suit counsel for the appellants contends that the concurrent findings on this question are liable to be successfully attacked for want of a proper approach by the courts below. It is in this background that the plea of res judicata by reason of failure to appeal against the decree passed simultaneously arises for decision in this case. 8. This Court had occasion to consider the question of res judicata in the context of cross suits, each of the suits relating to the same subject matter, with the same parties and having common issues. The view taken by this Court in Sarah Abraham v. Paily Abraham AIR 1959 Ker. 75 was that in such a case when appeal is preferred against one only of the decisions no rule of res judicata would operate to bar the disposal of such appeal on the merits. This court noticed and approved the view taken in Ragunandan Singh v. Soubhagya Sundari Devi AIR 1947 Pat. 125 that under such circumstances the challenge of one decree in appeal amounts in substance, though not in form, to challenge of the other too and the adjudication in appeal covers the same subject matter in the presence of the same parties. Evidently this Court found support for its view in the decision in Narhari v. Shanker AIR 1953 SC 419 . Another learned Judge of this court, Madhavan Nair J., also expressed the same view and held that a decision rendered simultaneously cannot be a decision in a former suit and therefore cannot constitute res judicata. This was in Govindan v. Kunhi Kannan Vydier 1963 (1) KLR 400. This Court, in observing so, placed reliance upon the decision of the Supreme Court in Narhari's case. This was in Govindan v. Kunhi Kannan Vydier 1963 (1) KLR 400. This Court, in observing so, placed reliance upon the decision of the Supreme Court in Narhari's case. The same view was taken by oar learned brother Viswanatha Iyer J., in an unreported decision, that in A.S. 226 of 1972. If the Supreme Court, in Narhari's case, has laid down the rule as stated in the decisions of this Court, we too have only to follow that decision and there would be no justification to go into the question further. But it has been argued before us that the decision of the Supreme Court adverted to does not finally decide this question and that has been so held by the Supreme Court later so much so this Court is obliged to consider the correctness of the view taken earlier in the decision of this Court adverted to in this paragraph. Narhari's case was a case pending before the Judicial Committee of Hyderabad when the Constitution of India came into force and by virtue of Art.374(4), that appeal came to the file of the Supreme Court of India. Ramachandra Naik and KhaliluzZaman Siddiqui JJ. of the Hyderabad High Court were called as ad hoc Judges to the Supreme Court and a Division Bench of the Supreme Court constituted by Meher Chand Mahajan J. along with the two ad hoc Judges heard the case. The decision is a decision of the Supreme Court and is referred to as such in the later decision of the Supreme Court, Narayan Singh v. Kamdeo Prasad Singh AIR 1962 SC 338 . Narhari's case was one where in the same suit two separate appeals were taken by two sets of defendants from the decree of the Trial Court. Both the appeals were allowed dismissing the plaintiffs' suit. This was by a common judgment. Two decrees were prepared. Plaintiffs preferred two appeals. One became time barred and when the other appeal came up it was not beard on the merits as it was found to be barred by res judicata. The Supreme Court took the view that it was not necessary to file two separate appeals in that case and the question of res judicata would arise only when there were two suits. The Supreme Court took the view that it was not necessary to file two separate appeals in that case and the question of res judicata would arise only when there were two suits. As there was only one suit and as both the decrees were in the same case and were based on the same judgment and further since the matter decided concerned the entire suit the principle of res judicata was held not to apply. If this was the only proposition stated in that case there would have been no scope for controversy. But the reference made in that decision to Mst. Lachmi v. Mst. Bhulli AIR 1927 Lahore 289 by their Lordships and what sounds like approval of the dictum of that decision has led to the controversy as to whether even when two appeals arising from two suits are decided simultaneously and appeal is taken from only one of the decisions, it can be said that there is no bar of res judicata. That was the case before the Lahore High Court is Mst. Lachmi v. Mst. Bhulli. Referring to that case the Supreme Court said thus: "In the Lahore case, there were two cross suits about the same subject matter, filed simultaneously between the same parties, whereas in the present case, there was only one suit and one judgment was given by the Trial Court and even in the first appeal to the Sadar Adalat, there was only one judgment in spite of there being two appeals by the two sets of defendants. The plaintiffs in their appeal to the High Court have impleaded all the defendants as respondents and their prayer covers both the appeals and they have paid consolidated court fee for the whole suit. It is now well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up. As has been observed by Tek Chand J. in his learned judgment in AIR 1927 Lah. 289, mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment. The question of res judicata arises only when there are two suits. 289, mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment. The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one. Besides, the High Court was wrong in not giving to the appellants the benefit of S.5 of the Limitation Act because there was conflict of decisions regarding this question not only in the High Court of the State but also among the different High Courts in India." 9. If the decision of the Supreme Court is to be understood, in the context of the facts of the case, as laying down the rule that when there are appeals arising from the same suit and decision in one is challenged leaving others unchallenged there is no bar of res judicata, that is a principle on which there is no controversy in this case. But several Courts in India including this Court had viewed that decision as one approving the ratio of the decision in Mst. Lachmi v. Mst. Bhulli AIR 1927 Lah. 289 F.B. But it appears to us for reasons which we will presently indicate that this is not the position. Moreover, by the subsequent pronouncements of the Supreme Court to which we will advert immediately, it must be taken that the question is at large still and is not covered by any pronouncement of the Supreme Court. The decision in Narhari's case was cited in the Supreme Court in a later case, Badri Narayan Singh v. Kamdeo Prasad Singh AIR 1962 SC 338 . The decision in Narhari's case was cited in the Supreme Court in a later case, Badri Narayan Singh v. Kamdeo Prasad Singh AIR 1962 SC 338 . One Badri Narain Singh, the appellant before the Supreme Court and four others including one Karn Deo Prasad were candidates for the Bihar Legislative Assembly in the General elections held in 1957. Two of the candidates had withdrawn before the relevant date and the other three candidates contested the election. The appellant was declared elected, he having obtained the largest number of votes. The first respondent, Kam Deo Prasad, filed an election petition under the Representation of the People Act challenging the election of the appellant. He sought not only a declaration that the election of the appellant was void but also that he was duly elected. The Election Tribunal held that the appellant was guilty of corrupt practices and the third candidate who contested was not a holder of office of profit under the State of Bihar. The election of the appellant was set aside, but no declaration was granted that Karn Deo Prasad was the duly elected candidate. An appeal was filed to the High Court of Patna by the appellant. Karn Deo Prasad also filed an appeal since he felt aggrieved by the failure of the Tribunal to declare that he was duly elected. In the appeal he challenged the finding of the election Tribunal that the appellant as well as the other candidate were not holders of office of profit. These were disposed of by the High Court by a common judgment. The plea that the appellant had committed corrupt practices was not found. But the High Court held that the appellant as well as the other candidate held offices of profit. So the appeal by Kam Deo Prasad was allowed declaring him duly elected. Against this the appellant filed only one appeal to the Supreme Court. It was contended before the Court that in as much as the appellant did not file an appeal against the judgment of the High Court in the case in which he was an appellant the order setting aside his election had become final and the sole appeal filed can be considered only as an appeal against the decision declaring Kam Deo Prasad duly elected. It was urged that the said appeal would be barred by res judicata since there was no appeal against the decision in the appeal filed to the High Court by the appellant himself. It was to meet this plea that the appellant relied on Narhar's case as an authority for the proposition that when two decisions involving common issues were simultaneously rendered the failure to appeal against one will not preclude the consideration of the appeal against the other. The decision in Narhari's case was considered by the Supreme Court in this context. The Supreme Court took the view that the appeal filed in that case was a consolidated appeal against the decrees in both the appeals and could have been split up for the purpose of record into two separate appeals. The observations in Narhari's case was explained by the Supreme Court as not applicable to cases which are governed by the general principles of res judicata- "......... which rest on the principle that a judgment is conclusive regarding the points decided between the same parties and the parties should not be vexed twice over for the same cause." The Supreme Court further observed "We are therefore of opinion that both in view of the facts of the case and the provision of law applicable to that case, that case can be no guide for determining the question before us in this appeal". (underlining ours) The decision in Narhari's case was again relied on before the Supreme Court in Sheodon Singh v. Daryao Kunwar AIR 1966 SC 1332 . This was an appeal from the decision of the Full Bench of the Allahabad High Court in Bhagwan Sahai v. Daryao Kunwar AIR 1963 All. 210 . It may be useful to refer to the facts of the case in brief. There were four suits between one Bhagwan Sahai and Daryao Kunwar Suit No. 37 of 1950 was for a declaration that Sahai and his son were the owners of the properties in the suit and for possession in the alternative. The second suit O. S. 42 of 1950 filed by Sahai against Daryao Kunwar and other persons was on the plea that Daryao Kunwar had cut and misappropriated the crops standing on certain sir and Khudkasht plots over which the plaintiff had title. During the pendency of these two suits Daryao Kunwar filed two suits, O. S.Nos. The second suit O. S. 42 of 1950 filed by Sahai against Daryao Kunwar and other persons was on the plea that Daryao Kunwar had cut and misappropriated the crops standing on certain sir and Khudkasht plots over which the plaintiff had title. During the pendency of these two suits Daryao Kunwar filed two suits, O. S.Nos. 77 and 91 of 1959 against Bhagwan Sahai and his son. The former suit was for the price of her share of the crop grown on certain sir and Khudkasht plots which were said to have been cut and misappropriated by Sahai and his son. The latter suit was for her share of the crops cut and misappropriated by defendants during another period. These suits were tried together and one of the common issues concerned the respective rights of the parties to the suit properties. The Civil Judge who tried the suit found on this issue that Daryao Kunwar was entitled to the properties claimed by Sahai in his suit O. S. 37 of 950. Hence that suit was dismissed. Naturally the suit by Daryao Kunwar O.S. 91 of 1950 was decreed. The other two suits were decreed to the extent of half only. Sahai filed appeals against the judgments and decrees in all the tour suits. One of the appeals was dismissed as time barred and another appeal was dismissed by the High Court on the ground that Sahai had failed to apply for translation and printing of the record as required by the rules. When the other two appeals came up for hearing the plea of res judicata was raised and that was based upon the finality of the decisions in two out of the four suits. Though the decision in Narhari's case was relied on in support of the plea that there would be no scope for res judicata as the decisions were rendered simultaneously, the Supreme Court rested its decision on another point. Though the decision in Narhari's case was relied on in support of the plea that there would be no scope for res judicata as the decisions were rendered simultaneously, the Supreme Court rested its decision on another point. Two of the appeals having been disposed of by the High Court earlier, one on the ground of limitation and the other on the ground of default of printing the decisions of the Trial Court were found to have been confirmed by the High Court in those two decisions and the appellate court's decisions thus confirming the Trial Court's decisions were found to operate as res judicata in the appeals which it bad to dispose of later. The Supreme Court said- "Our conclusion on the question of res judicata raised in the present appeals is this: Where the Trial Court had decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the Trial Court's decision stands confirmed, the decision of the appeal court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the Trial Court given on merits, and if that is so the decision of the appeal court will be res judicata whatever may be the reason for the dismissal." The two different views held by the various High Courts in India on the question of a simultaneous judgment operating as res judicata was brought to the notice of the Supreme Court and evidently the Supreme Court did not choose to express its opinion as to the correctness of either view. It noticed the view expressed in Manohar Vinayak v. Laxman Anandrao AIR 1947 Nag. 248 as opposed to the view indicated in Zaharia v. Debia ILR 1911 (33) All. It noticed the view expressed in Manohar Vinayak v. Laxman Anandrao AIR 1947 Nag. 248 as opposed to the view indicated in Zaharia v. Debia ILR 1911 (33) All. 51 F.B. and said "We need not consider the correctness of these rival views as they raise the question as to whether one decision or the other can be said to be former where the two suits were decided by the same judgment on the same date This question does not fall to be decided before us and we do not propose to express any opinion thereon." Referring to the decision in Mst. Lachhmi v. Mst. Bhulli AIR 1927 Lah. 289 and other decisions taking the same view the Supreme Court noticed that the view taken was similar to the view taken in Manohar Vinayak v. Laxman Anandrao and further said "......... and we need express no opinion as to their correctness." The decision in Narhari's case was explained as of no application to the case before the Supreme Court because in Narhari's case there was only one suit which was followed by two appeals heard together and disposed of by the same judgment. An appeal was taken against one only of the decrees and it was in those circumstances that the court held that as there was only one suit it was not necessary to file two separate appeals. The Court observed "In those circumstances this Court held that as there was only one suit, 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 and the question of res judicata did not at all arise. In the present case there were different suits from which different appeals had to be filed." It appears to us that the Supreme Court did not view the decision in Narhari's case as laying down any rule that there would be res judicata even in cases where simultaneous decisions are reached in two different suits tried and disposed of together when appeal is taken against only one of them. It was contended before the Supreme Court in the later case, Ramagya Prasad v. Murli Prasad AIR 1974 SC 1320 that Narhari's case had been followed in various decisions by the different High Courts, that Narhari's case approved the view of the Full Bench of the Lahore High Court in Mst. Lachhmi v. Mst. Bhulli, AIR 1927 Lah. 289 FB , that the correctness of the decision in Nathan's case or of the Full Bench of the Lahore High Court in Sheodan Singh v. Darya Kunwar AIR 1966 SC 1332 and therefore the principle that when there are two suits which have been tried together and disposed of by a common judgment and two appeals are taken therefrom, the judgment appealed against ceases to be res judicata even if one of the appeals is dismissed on the ground of limitation or otherwise because the very judgment, which is sought to be pleaded in bar, is still sub judice must be considered. The Supreme Court pointed out the difference in the facts of the two cases, that of the Full Bench decision of the Lahore High Court referred to in Narhari's case and that of Narhari's case. The Court observed- "Even where two appeals have been taken from the same judgment by two different parties, to which all others are parties either as appellants or respondents and one of the appeals is dismissed either on merits or for any other reason, it has been held by some of the High Courts, but we express pp opinion thereon, that the other appeal has also to be dismissed, because it is barred by the principles of res judicata as otherwise there will be conflict in the decrees. In the Lahore decision there were two cross suits about the same subject matter filed simultaneously between the same parties and two decrees were prepared. An appeal being filed in respect of one decree and not in respect of the other, the question was whether the non filing of the appeal against that decree creates an estoppel against the hearing of the other appeal. An appeal being filed in respect of one decree and not in respect of the other, the question was whether the non filing of the appeal against that decree creates an estoppel against the hearing of the other appeal. In Narhari's case what this court held was, where there has been one trial, one finding and one decision, there need not be two appeals even though two decrees may have been drawn up and consequently the fact that one of the appeals was time barred does not bar the other appeal on the ground of res judicata." Reference is made to the above passage to indicate that the Supreme Court took care to observe that the court expressed no opinion on the question whether even where two appeals have been taken from the same judgment by two different parties to which all others are parties either as appellants or respondents and one of the appeals is dismissed either on merits or for any other reason, the other appeal also has to be dismissed, because it is barred by the principles of res judicata as otherwise there will be conflict in the decrees. Reference was made to the decision in Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332 and it was found that the High Court's decision in the two appeals arising from the respondent's appeals were undoubtedly earlier and, therefore, the condition that there should have been a decision in a former suit to give rise to res judicata in a subsequent suit was satisfied in that case. That the decision in Narhari's case was in no way in conflict with the decision in Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332 was noticed by the Supreme Court and it was further observed that the decision in Narhari's case was distinguished by the Supreme Court in that case. The Court further said: "In appeals arising out of a subsequent suit and an earlier suit where there were common issues, common subject matter and common trial and the appeals arising out of the subsequent suit were dismissed, a question would arise as to whether the appeals from the earlier suit which were pending are barred by res judicata. The Court further said: "In appeals arising out of a subsequent suit and an earlier suit where there were common issues, common subject matter and common trial and the appeals arising out of the subsequent suit were dismissed, a question would arise as to whether the appeals from the earlier suit which were pending are barred by res judicata. A question may also arise where the subject matter is the same and the issues are common in the two suits but some of the parties are different in one suit, whether the bar of res judicata would operate against the parties who are common. All these aspects need not be considered in these appeals ......" It is evident therefore that the question with which we have to deal in these cases has been considered as not finally decided. Hence we think the opposing views expressed on this question by various High Courts in India calls for consideration by this Court. 10. The decisions of Courts seem to be well weighted on both sides. In support of the opposing views reference may particularly be made to the Full Bench decision of the Madras High Court in Panchanada Velan v. Vaithinatha Sastrial ILR 1906 (29) Mad. 333 and Mst. Lachhmi v. Mst. Bhulli AIR 1927 Lah. 289 F.B. in support of the view that there is no bar of res judicata under circumstances indicated, while the decision in Zaharia v. Debia ILR 1911 (33) All. 51 may be cited in support of the opposing view. The High Courts in India which have expressed one or other of these views in their decisions have quite often referred to these decisions in support of their respective views. S.11 of the Code of Civil Procedure leaving out Explanation.2 to 6 which are not necessary for the purpose of these cases, reads thus: "S.11. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation 1: The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto." Stated in simple form the principle of this rule is that when once there has been a decision between the parties to a suit this rule will preclude the trial of a fresh suit for the same relief between the same parties. So is the case with a defendant setting up the same plea in a subsequent suit between the same parties. The suit or issue must have been heard and finally decided in order to constitute res judicata. "Former" in Explanation I denotes a suit which is decided prior to the suit in question irrespective of whether it was instituted earlier or later. The rule applies not only to Original Suits but also to appeal suits. These are matters on which there is no controversy. 11. If there are two suits in which the matter directly and substantially in issue are the same that the earlier decision in one of the suits bars a fresh decision in the other suit is evident from the provisions in S.11 of the Code of Civil Procedure. Therefore, when there are two suits in which substantially the same question arises for decision and they are decided by a common judgment or by judgment in the main case that being incorporated in the second case and when only one of the judgments is subjected to appeal what would be the effect of the failure to appeal against the other judgment? Could it be said that these two judgments, having been rendered at the same time, one cannot be said to be the decision in a former suit? It is true that the party has right of appeal against the decision in both the suits and if such right of appeal is exercised in regard to only one of the decisions, does the other decision become final so as to debar an independent consideration of the appeal so taken? These are the questions which call for examination in these Second Appeals. 12. These are the questions which call for examination in these Second Appeals. 12. In cases where two or more suits between the same parties relating substantially to the same matter are decided and only one of them is challenged by way of appeal, we fail to see how it can be said that the decisions are simultaneous and hence there can be no bar of res judicata. If the party takes up in appeal only one of the decisions, the others become final. The question, then, for consideration would be whether these decisions which have become final operate as res judicata. The question of res judicata would arise for determination only when the appeal against the connected decision is taken up for consideration. That will necessarily be at a subsequent point of time. At that moment there would be earlier decisions which have become final. The question whether the decision from which appeal has been filed and the decisions which have become final were rendered simultaneously would then be really irrelevant. Within the meaning of Explanation I of S.11 of the Code of Civil Procedure the decision which becomes final by being not appealed against becomes an earlier decision in a matter directly and substantially in issue in the former suit and operates as res judicata. This is notwithstanding the very serious consequences that the party who has filed appeal against one only of the two decrees may have to face. It is not as it his right of appeal becomes unavailable to him because of the bar of res judicata. He has the right to have his appeal taken up and considered, but he cannot get relief to the extent the question in issue which calls for decision in the appeal cannot be considered on the merits by reason of the bar of res judicata. The very rule of res judicata is a technical rule which precludes a party who may have a case from prosecuting his case with a view to obtain relief. It serves the larger interest of public policy by promoting the rule that there must be an end to litigation and a security to the litigant. No man should be vexed twice over the same cause is a rule founded on ancient precedents dictated by wisdom. It serves the larger interest of public policy by promoting the rule that there must be an end to litigation and a security to the litigant. No man should be vexed twice over the same cause is a rule founded on ancient precedents dictated by wisdom. If the party to the decree would be bound by the decree if he does not challenge the decree he must face the consequences of his failure to appeal against it, such consequence being the finality thereof. Such finality would debar a decision afresh on the question even if it be in an appeal against a simultaneous decision. We do not see justification to import any rule of expediency to the context. 13. We may now refer to the decisions of the High Courts in India on the question before us. We will refer first to the set of decisions which take the view as in Panchanama Velan v. Vaithinatha Sastrial ILR 1906 (29) Mad. 333. We may notice in this context the decisions in Lakshmi Ammal v. Official Receiver Tinnevelly AIR 1935 Mad. 214 , Papammal v. Meenammal AIR 1943 Mad. 139 F.B., Shankar Shai v. Bhagwat Sahai AIR 1946 Oudh 33 F.B., K. Bivi Ammal v. A. Nadar AIR 1970 Mad. 76 , Manohar Vinayak v. Laxman Anandrao AIR 1947 Nag. 248, Mst. Lachhmi v. Mst. Bhulli AIR 1927 Lah. 289 F.B., Subramonian v. Nagarama AIR 1954 TC 235 , Sarah Abraham v. Pyli Abraham AIR 1959 Ker. 75 , Umrao Sing v. Mst. Munni AIR 1958 Punj. 83 and Govindan v. Kunhi Kannan 1963 (1) KLR 400. These decisions which hold the view that there is no bar for considering the appeal against one only of the decisions seem to support their view on the following reasoning: (1) The very object of the appeal in substance, if not in form, is to get rid of the adjudication and therefore even if only one appeal is filed that would serve the purpose. (2) The decision in the suit, the decree in which has become final, being not by a court competent to hear the appeal against the decree in the connected case there would be a bar of res judicata would lead to startling results. (3) There is in substance one judgment and one decree though there are two cases. The test is whether the Judge has applied his mind twice over. (3) There is in substance one judgment and one decree though there are two cases. The test is whether the Judge has applied his mind twice over. (AIR 1927 Lah. 289 F.B and AIR 1947 Nag. 248). (4) It would be a travesty of justice to stifle the hearing of the appeal. 14. The case in Panchanada Velan v. Vaithinatha Sastrial ILR 1906 (29) Mad. 333 was one where the questions in issue in two suits were identical and that concerned the terms of a patta. The decree to be passed in each suit was in effect the same. But one suit was dismissed and the other decreed. An appeal was preferred against one decree but no appeal was preferred against the other. The appeal was dismissed on the ground that there was no appeal against the other decree. The Full Bench to which the case was referred observed: "Technically, no doubt, the tenant's appeal ought to have been in both suits and the proper course for the District Judge to have taken would have been to require the appellant to amend his memorandum of appeal so as to make it an appeal in both suits ........." The learned Judges dealt with the rule of res judicata applicable to these facts thus: " "The doctrine does not apply when, as here, the very object of the appeal, in substance if not in form, is to get rid of the adjudication which is said to render the question which the Appellate Court is asked to decide res judicata. The tenant's appeal in his suit if successful would have the effect of superseding the adjudication in the landlord's suit; The Full Bench further said It would lead to startling results if we were to hold that an Appellate Tribunal is precluded from dealing with a question which comes before it on appeal because an inferior Court, upon the same facts, but in a case other than the case under appeal, had given a decision which had not been appealed against, at the same time as the decision in the case under appeal." With great respect to the learned Judges of the Full Bench we are unable to see bow the object of the appeal, by an appellant who has failed to file an appeal in the landlord's suit could in any way assist him in answering a plea of res judicata if that plea would otherwise be applicable to the case on the facts. To serve his object he was bound to file an appeal against the decision in the landlord's suit, it is true that he must get the benefit of the decision in his appeal if he is successful. But that would be begging the question, for, he cannot succeed in his appeal unless the appeal could be heard and decided on the merits. If the bar of res judicata operates to preclude such a decision, then, he cannot be successful in his appeal. In such circumstances there will be no question of superseding the adjudication in the landlord's suit. 15. One of the conditions necessary to attract the bar of res judicata is that the decision which is said to operate as res judicata must be that rendered by a competent court. The suit out of which the appeal arises must be a suit which the court was competent to try. It is true that the Trial Court which tried the suit was not competent to dispose of the appeal. If the term 'court competent to try such subsequent suit' is to read as meaning, in the case of a subsequent appeal suit, a court competent to hear such appeal then the decision in any case, we are afraid, will not operate as res judicata in a subsequent suit if. against the decision in that suit an appeal is taken to a larger forum. against the decision in that suit an appeal is taken to a larger forum. Appeal is only a continuation of the suit and the test is whether the court whose decree is said to operate as res judicata could try the subsequent suit from which the appeal was being heard. We do not also find reason to subscribe to the view that startling results would follow if the appellate court is precluded from dealing with a question which comes before it on appeal because an inferior court, upon the same facts, but in a case other than the case under appeal had already decided the question. Of course, the court must be one of competent jurisdiction In the decision in Papammal v. Meenammal AIR 1943 Mad. 139 the Full Bench followed the earlier decision of the Court in Panchanada Velan v. Vaithinatha Sastrial, ILR 1906 (29) Mad. 333. So was the case with Lakshmi Ammal v. Official Receiver, Tinnevelly AIR 1935 Mad. 214 and Narayana Swami Iyer v. Sevadappa Gounder. AIR 1942 Mad 226. An exhaustive discussion has been made by the High Court of Madras in the decision in K. Bivi Amma v. A. Nadar AIR 1970 Mad. 76 and the court took the view that the authority of Panchanada Velan v. Vaithinatea Sastrial is not shaken. The Full Bench of the Lahore High Court approached the same question in a slightly different form. Tek Chand J., sneaking for the Full Bench, in the decision in Mst. Lachhmi v. Mst. Bhulli, AIR 1927 Lah. 289 F. B. said- "Where two suits, having a common issue are by consent of parties or by order of the court, tried together, the evidence being written in one record and both suits disposed of by a single judgment, can it be said that there have been two distinct and independent trials? There being but one finding and one judgment, on what principle can the hearing of the appeal in which this finding and this judgment are under consideration be barred merely because no appeal has been filed in the connected suit which was disposed of by that very judgment? There being but one finding and one judgment, on what principle can the hearing of the appeal in which this finding and this judgment are under consideration be barred merely because no appeal has been filed in the connected suit which was disposed of by that very judgment? There has been, in substance as well in form, but one trial and one verdict, and, I venture to think, it will be a travesty of justice to stifle the hearing of the appeal against such a judgment on the ground that the findings contained in it operate as res judicata. In such a case there can be no question of the successful party being "vexed twice" over the same matter, nor does the hearing of the appeal in any way militate against any rule of public policy, which requires that there must be an end of litigation. There is not only nothing here to attract the principles underlying the rule of res judicata, but, on the other hand, it seems to me that the acceptance of such a plea in such circumstances would strike at the very root of the basic conception of the doctrine which requires that a party must have at least one fair trial of the issue resulting in a decision by the Court of ultimate appeal as allowed by the law for the time being in force." There is no provision in the Code of Civil Procedure for consolidating suits. Nevertheless courts order joint trial of two or more suits for the sake of convenience and, quite often, to avoid conflicting decisions. This is done by the court in the interests of justice in exercise of the inherent powers possessed by it. O.20 R.1 of the Code of Civil Procedure requires that after the case has been heard the court shall pronounce judgment. R.5 of the same Order provides that the court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit. R 6 deals with the contents of the decree which shall agree with the judgment. It shall contain the number of the suit, the names and descriptions of the parties and particulars of the claim and shall specify clearly the relief granted or other determination of the suit. R 6 deals with the contents of the decree which shall agree with the judgment. It shall contain the number of the suit, the names and descriptions of the parties and particulars of the claim and shall specify clearly the relief granted or other determination of the suit. R.7 provides that the decree shall bear date, the day on which the judgment was pronounced and, when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree. S.33 of the Code of Civil Procedure obliges the court after the case has been heard to pronounce judgment and on such judgment a decree shall follow. What is executable is only a decree and the fruits of the litigation is realised by the litigant by executing such decree. S.96 of the Code provides that except where otherwise expressly provided in the body of the Code or by any other law for the time being in force an appeal shall lie from every decree passed by any court exercising original jurisdiction. Thus it is the decree which is the foundation for the appeal. The scheme of the Code of Civil Procedure is to provide for a decree and judgment in every suit. The fact that the court orders joint trial of two suits in exercise of its inherent power does not mean that it dispenses with the passing of judgment and decree in the suit as required by the Civil Procedure Code. Consolidation of two suits need not necessarily be by agreement of parties, for, if a court, after hearing parties, feels that in the interests of justice it is necessary that two or more proceedings should be tried together, it is open to it to order so to avoid repetition of the same evidence in the different cases or to avoid the possibility of conflicting decisions in those cases or for such other justifying reasons. But nevertheless the court is not absolved from the duty of passing a judgment in those cases nor drawing up decrees in those cases. May be that a common judgment is delivered by a court but it is, in essence, a judgment in each and everyone of the cases and decrees have to be drawn up in those different cases. May be that there is only one trial. May be that a common judgment is delivered by a court but it is, in essence, a judgment in each and everyone of the cases and decrees have to be drawn up in those different cases. May be that there is only one trial. But that, with great respect to the opposite view, does not in any way affect the rule that there should be separate appeals. If the consequence of a decree being left unchallenged is to render it final, such consequence will work itself out irrespective of the question whether the decree in the connected suit has been subjected to appeal. When a party has obtained the benefit of the finality of a decision in one suit if proceeding by way of appeal in a connected suit is nevertheless to continue, necessarily the party has to face the same issue twice over. We are unable to see how the rule of res judicata is avoided under such circumstances. We respectfully disagree with the statement of law by the Division Bench of the Nagpur High Court in Manohar Vinaynk v. Laxman Anandrao AIR 1947 Nag. 248 in regard to this question, where the Court stated the rule thus: "In order that a decision should operate as res judicata it should be quite independent of the proceedings to which it is pleaded as a bar. The principle of res judicata cannot apply in the same proceeding in which the decision is given and by parity of reasoning it cannot apply to the consolidated proceedings. When by consent of parties or by an order of the Court the two suits are consolidated they have no independent existence and nothing decided in one of the two consolidated suits can operate as res judicata if that decision was appealed against. This is because there are no two independent decisions." We have already indicated our reasons for differing from the view expressed above. 16. We may also notice a fairly recent decision of the High Court of Delhi in Tulison Traders v. Gurdit Singh AIR 1974 Delhi 190 taking the same view as in Mst. Lachhmi v. Mst. Bhulli AIR 1927 Lah. 289 F.B. Evidently the court assumed that the Supreme Court, in the decision in Narhari's case, had specifically approved the view taken in Lachhmi's case. Lachhmi v. Mst. Bhulli AIR 1927 Lah. 289 F.B. Evidently the court assumed that the Supreme Court, in the decision in Narhari's case, had specifically approved the view taken in Lachhmi's case. We have already pointed out that in view of the decisions of the Supreme Court to which we have adverted it is safe to assume that the Supreme Court has taken the view that the question is still at large and is not concluded by the decision in Narhari's case. The Delhi High Court has also expressed the view that the expression "former suit" in S.11 of the Code of Civil Procedure denotes the suit which has been decided prior to the suit in question and therefore res judicata will not apply to simultaneous decisions. To this aspect also we have adverted. The court has also reiterated what has been said by some of the High Courts, that the effect of the appeal (revision in that case) is in substance to get rid of the decree and the result of consolidation is to combine the controversy. 17. With great respect we agree with the law as stated by Sir John Stanley C. J. in Zaharia v. Debla ILR 1911 (33) All. 51. The learned Chief Justice said in that decision at page 60 thus: "A decree, unless it be a decree which is a nullity by reason of, for example, fraud, cannot be superseded except it be upon appeal in the regular course. This being so, if we acceded to the argument addressed to us, we should have two inconsistent decrees on the files of the Court. This would be a most serious anomaly, and in execution proceedings would cause a complete impasse." The decision of the Madras High Court in Panchanada Velan v. Vaithinatha Sastrial ILR 1906 (29) Mad. 333 was noticed by the learned Chief Justice who, in the course of his judgment, observed that the learned Judges of the Madras High Court did not point out what would be the startling results to which the apprehended contrary conclusion would lead and also observed that the rule of res judicata, even though the decision is the decision of an inferior court, would operate provided that that court was competent to decide the case. Chamier J. in his concurring judgment said "The court of first instance wrote only one judgment, but a copy of that judgment was placed upon the record of the second suit. The case must be treated in my opinion as if two separate judgments had been prepared. There were, of course, two separate decrees. The Code of Civil Procedure requires a separate judgment and decree for each suit or appeal and two or more decrees cannot be challenged by one appeal. In the absence of a provision enabling the Court to consolidate suits and appeals and pass one judgment and one decree instead of as many judgments and decrees as there are suits or appeals, I see no escape from the conclusion that in a case like the one before us or in a case like that of Abdul Basil v. Ashfaq Husain the appellant must file two appeals if he wishes to avoid the bar of res judicata." The High Court of Allahabad has been following this view in the subsequent decisions (Vide Mahammad Mohtashim v. Joti Prasad, AIR 1941 All. 277, Bhagwan Sahai v. Daryao Kunwar, AIR 1963 All. 210 F.B. and Kusum Lata v. Kampta Prasad, AIR 1965 All. 280 ). The case in Ghansham Singh v. Bhola Singh ILR 1923 (45) All. 506 is distinguishable as a case where there were two decrees from the same suit and the party filed only one appeal against the decree to the High Court as he was not aggrieved by the decree in the other. A different note was struck by the Allahabad High Court in the decision in Shri Rant v. Shripat Singh AIR 1957 All. 106 . But that case rested entirely upon the decision of the Supreme Court in Narhari's case and the court assumed that the decision related not only to two appeals arising from the same suit but also appeals arising from different suits. To this aspect of the matter we have already adverted. 18. Sir Asuthosh Mookerjee, J., speaking for the Court, in the decision in Isuh Ali v. Gour Chandra Deb AIR 1923 Cal. 496 expressed the same view. The learned Judge said thus: "A different rule was however adopted in Panchanda v. Vaithinatha. To this aspect of the matter we have already adverted. 18. Sir Asuthosh Mookerjee, J., speaking for the Court, in the decision in Isuh Ali v. Gour Chandra Deb AIR 1923 Cal. 496 expressed the same view. The learned Judge said thus: "A different rule was however adopted in Panchanda v. Vaithinatha. There, cross suits between the same facts, were tried together and judgment was given on the same day, but separate decrees were drawn up, and an appeal was preferred against one of the decrees alone. It was ruled that the decree unappealed did not operate as a bar, so as to preclude the appellate Court from dealing with the decree appealed against, because, it was said, the doctrine of res judicata has no application when the very object of the appeal, in substance, if not in form, is to get rid of the decision with is pleaded in bar. The opinion of the Court states that it would lead to startling results, if the Court were to hold that an appellate tribunal is precluded from dealing with a question, which comes before it on appeal, because an inferior Court, upon the same facts, but in a case other than the case under appeal, had given a decision which had not been appealed against, at the same time as the decision in the case under appeal. Two observations are pertinent in this connection; first, that the requirements of the rules of procedure cannot always be ignored, on the allegation that they are technical and are matters of form, not of substance; secondly, that a non appealable decree may operate as res judicata, as Explanation II to S.11 of the Civil Procedure Code, 1908, prescribes that the competence of a Court shall be determined, irrespective of any provisions as to a right of appeal from the decision of such Court." The High Court of Patna evidently took the same view in Gertrude Oates v. Millicent D' Silva AIR 1933 Patna 78. The High Court of Orissa in Sumi Debi v. Pranakrushna AIR 1956 Orissa 68 has adopted the same reasoning as that of the Full Bench of the High Court of Allahabad in Zaharia v. Debia ILR 1911 (33) All. 51. The High Court of Orissa in Sumi Debi v. Pranakrushna AIR 1956 Orissa 68 has adopted the same reasoning as that of the Full Bench of the High Court of Allahabad in Zaharia v. Debia ILR 1911 (33) All. 51. Evidently this question arose for the first time before the Mysore High Court in Poovamma v. Sumathi AIR 1970 Mysore 81 and after discussing the different views the learned Judges preferred to adopt the view expressed in Zaharia v. Debia. 19. We do not find any logic which compels us to adopt the view that an earlier decision in a former suit may not operate as res judicata in the event that decision was reached simultaneously with the decision in the suit from which the appeal is taken. That would be, it appears to us, against the plain provision in S.11 of the Code of Civil Procedure. The question whether the plea of res judicata is available is to be decided with reference to the time the matter comes up for consideration and if by that time there is an earlier decision by a competent court between the same parties which has become final and the question is directly and substantially the same such earlier decision would operate as res judicata barring a fresh decision by the appellate Court. In the light of our discussion, we have to hold with great respect that the decisions in Sarah Abraham v. Paily Abraham, AIR 1959 Ker. 75 , Govindan v. Kunhi Kannan Vyder, 1963 (1) KLR 400 and A.S. 226 of 1972 did not lay down the correct law. We overrule these decisions in so far as they lay down the rule in regard to the question of res judicata which we have dealt with in this judgment. 20. Now we may advert to another equally interesting contention urged before us in answer to the plea of res judicata. It is said that a case could be said to have been heard and finally decided as against a party only if that party is bound to file an appeal against that decision and if the party is not obliged to file such an appeal much less competent to file it there would be no question of res judicata. It is said that a case could be said to have been heard and finally decided as against a party only if that party is bound to file an appeal against that decision and if the party is not obliged to file such an appeal much less competent to file it there would be no question of res judicata. This area is urged in support of the case that the plaintiffs in O.S. 313 of 1964 who were some of the defendants in O. S. 99 of 1965 could not have filed an appeal against the dismissal of that suit. That is because they sought no relief in that suit and they stood neither to lose nor to gain by that decree. The case is stated thus: Whatever relief they wanted in regard to these properties they sought as plaintiffs in the plaint in O.S. 313 of 1964. They had paid court fee for such relief and they were entitled to a decree if they succeeded therein. If they claimed any relief in O.S. 99 of 1965 or if they were interested in opposing the claim of the plaintiffs in that suit lest a decree be passed against them therein, they would be obliged to file an appeal while that would not be the case if they were not adversely affected by the decree. Adverse decision against them alone will operate as res judicata and that alone will have to be taken up in appeal. Any adverse finding against them without any adverse decree cannot give them a right to file an appeal. At any rate, they are not obliged to file an appeal. 21. Whether there is an obligation to file an appeal would depend upon the consequence of failing to file such appeal. In a case where the earlier decision decides a question which was not necessary for determining the relief to be granted to the plaintiff or defendant in the suit, the decision on such question will not operate as res judicata in the later litigation. Where the controversy is between the plaintiff and some of the defendants in the suit, the decree would bind even the defendant who does not contest the suit. The decision on matters in controversy against the plaintiff or the contesting defendant would be binding upon those defendants who may not be interested in contesting the plaintiff's claim under certain circumstances. Where the controversy is between the plaintiff and some of the defendants in the suit, the decree would bind even the defendant who does not contest the suit. The decision on matters in controversy against the plaintiff or the contesting defendant would be binding upon those defendants who may not be interested in contesting the plaintiff's claim under certain circumstances. In other words, any finding in such a suit would be binding even as between parties arrayed on the same sides as defendants in the suit. The rule applicable to the cases before us is really one of operation of the principle of res judicata as between codefendants as we would presently indicate. 22. In a case, as in the three partition suits before us, where a codefendant is interested in supporting the case of the plaintiff or is sailing along with the plaintiff and the question in controversy between the plaintiff and the contesting defendant is a matter in which the codefendant is interested, if any decision is reached in the earlier litigation on the question in controversy between the parties, such decision would operate as res judicata between the codefendants in the subsequent litigation. It is true that the plaintiffs in O. S.313 of 1964 had prayed in their suit for recovery of their share in the property claimed by them as belonging to the persons in whose names the acquisitions stood. In O. S. 99 of 1965 similarly the plaintiff prayed for recovery of share on the same basis. This was opposed by the plaintiffs in O. S. 53 of 1965 who claimed the properties acquired in the names of different members as belonging to the tarwad. Therefore the plaintiffs in O. S. 99 of 1965 and the plaintiffs in O. S. 53 of 1965 who figured as defendants in that suit were at issue on the question whether the properties in the suit belonged to the persons in whose names the acquisition stood. That was a contention in which the plaintiffs in O.S. 313 of 1964 who were also parties to O. S. 99 of 1965 were also interested. They were interested in supporting the plaintiffs. That was a contention in which the plaintiffs in O.S. 313 of 1964 who were also parties to O. S. 99 of 1965 were also interested. They were interested in supporting the plaintiffs. When the suit was dismissed on the basis of the decision that the properties did not belong to the persons in whose names the acquisitions stood (and not the tarwad) the plaintiffs in O.S. 313 of 1964 who were parties to that suit were as much aggrieved as plaintiffs in that suit. The decision on the question of title was one in which the plaintiffs in O. S. 313 of 1964 were also equally interested. That question had to be decided in the suit in order to determine the case of the plaintiffs. That was so decided. If so, as between the codefendants, this must operate as res judicata in the subsequent litigation. If that be the case, in the appeal against the decree in O. S. 313 of 1964 the earlier decision in O. S. 99 of 1965 which had become final would operate as res judicata in case, as found by us earlier, even though a simultaneous decision the decree in O. S. 99 of 1965 ought to have been challenged in appeal to avoid the bar of res judicata in the appeal against O. S. 313 of 1964. 23. The view expressed by us here seems to find support in three decisions of the Privy Council: Mt. Munni v. Tirloki Nath, AIR 1931 PC 114 Maung Sein Done v. Ma Pan Nyun AIR 1932 PC 161 and Kedar Nath v. Munshi Ram AIR 1935 PC 139 . It may be useful to refer to the facts of the case in Mt. Manni v. Tirloki Nath. The subject matter of the dispute there was a house in Agra which originally belonged to one Joti Pershad. He purported to gift this property to his widow Mukandi. But this gift was said to be not perfected by possession. Joti Pershad died in 1870 leaving his sons Bishamber Nath and Amar Nath. Though the property had been gifted to Mukandi, the sons conducted themselves as if that property also devolved on them, took possession and partitioned the properties of Joti Pershad. In the partition the house in Agra fell to the share of Amar Nath who enjoyed it till his death in 1884. Though the property had been gifted to Mukandi, the sons conducted themselves as if that property also devolved on them, took possession and partitioned the properties of Joti Pershad. In the partition the house in Agra fell to the share of Amar Nath who enjoyed it till his death in 1884. After his death his widow continued to live in the house till her death in 1907 and on her death Munni, the daughter of Amar Nath, claimed it as having devolved on her. In the meanwhile Mukandi died in 1891. If, under the gift, she had obtained the property, her two daughters, Raian and Kashi would have obtained it on her death. Ratan having died issueless in 1894 and Kashi having died in 1912, the descendants of Kashi who were the first three respondents in the appeal before the Privy Council claimed to have obtained title to the properly. The case before the Privy Council concerned the conflicting claims between Munni Bibi, the daughter of Amar Nath and the descendants of Kashi. After the death of Hira Dei, the widow of Amar Nath, one Narayan Singh attached the Agra house in execution of a decree obtained against Amar Nath who was heavily in debts during his life time. Consequent to an objection successfully urged in execution by the mutwalli under a deed executed by Kashi, Narayan Singh instituted a suit O. S. 337 of 1909 praying for a declaration of his right to attach and sell the house in execution of his decree. Kashi, the daughter of Mukandi, as well as Munni, the appellant before the Privy Council, were parties to the decree. Ultimately Narayan Singh succeeded in appeal in obtaining a decree recognising his right to realise his decree by sale of the house. This was in 1912. Kashi seems to have died shortly after this. Thereupon Kashi's son Gocal Nath paid off Narayan Singh's decree and retained possession of the house. Munni instituted a suit in 1919 for recovery of possession of the house on the plea that as daughter of Amar Nath who obtained the property from his father Joti Pershad she was entitled to the property. She was resisted by the descendants of Kashi who claimed that as the daughter of Mukandi who obtained the gift from Joti Pershad Kashi alone was entitled to the property. She was resisted by the descendants of Kashi who claimed that as the daughter of Mukandi who obtained the gift from Joti Pershad Kashi alone was entitled to the property. Munni the plaintiff, urged that the decision in the suit filed by Narayan Singh as to the title of Amar Nath to the properties would operate as res judicata. It bad been found in the earlier litigation at the instance of the creditor, the said Narayan Singh, that the property belonged to Amar Nath. Munni had, in that litigation, interest identical to that of the plaintiff in that suit. But Kashi was interested in opposing the plaintiff's claim and she did oppose. Therefore as between Kashi and Munni there was conflict of interest with regard to the subject matter of the suit which called for decision in order to give relief to the plaintiff and it was so decided. It is in this context that Sir George Lowndes said thus: "The doctrine of res judicata finds a place in S.11, Civil Procedure Code, 1908, but it has been held by this Board on many occasions that the statement of it there is not exhaustice; the latest recognition of this is to be found in Kalipada De v. Dwijapada Das. For the general principles upon which the doctrine should be applied it is legitimate to refer to decisions in this country: see Soorjamonee Dayee v. Suddanund Mohapatter. Krishna Behari Roy v. Banwari Lal Roy, Raja Run Bahadur Singh v. Mt. Lachoo Koer That there may be res judicata as between codefendants has been recognised by the English Courts and by a long course of Indian decisions. Krishna Behari Roy v. Banwari Lal Roy, Raja Run Bahadur Singh v. Mt. Lachoo Koer That there may be res judicata as between codefendants has been recognised by the English Courts and by a long course of Indian decisions. The conditions under which this branch of the doctrine should be applied are thus stated by Wigram V. C., in Cottingham v. Earl of Shrewsbury at 638: "If a plaintiff cannot get at his right without trying and deciding a case between codefendants the Court will try and decide that case, and the codefendants will be bound, but if the relief given to the plaintiff does not require or involve a decision of any case between codefendants, the codefendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains." This statement of the law has been accepted and followed in many Indian cases: see Ahmad Ali v. Najabat Khan, Ramchandra Narayan v. Narayan Mahadev, Magniram v. Mehdi Hosseie Khan. It is, in their Lordships' opinion, in accord with the provisions of S.11 C. P.C., and they adopt it as the correct criterion in cases where it is sought to apply the rule of res judicata as between codefendants. In such a case therefore three conditions are requisite: (1) There must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) the question between the defendants must have been finally decided. Their Lordships are of opinion that these conditions are established in the present case. There was clearly a conflict of interests between the appellant as the daughter and heir of Amar Nath, and Kashi, as the heir of Mukandi. It was only if the house belonged to Amar Nath that the plaintiff's suit could succeed; if it belonged to Mukandi he must fail. It was therefore necessary to decide between the conflicting claims of the defendants." It was urged before their Lordships that Munni was not a necessary party in the earlier suit and that she Hid not, in fact, enter appearance. Their Lordships did not regard either of these factors as material. It was observed "The appellant was at all events a proper party to the suit and had the right to be heard if she so desired. Their Lordships did not regard either of these factors as material. It was observed "The appellant was at all events a proper party to the suit and had the right to be heard if she so desired. If she chose to stand by and let the plaintiff fight her battle, it could not affect her legal position. The test of mutuality is often a convenient one in questions of res judicata. If the decision had gone the other way the appellant could hardly have claimed that because she did not choose to appear she was not bound by it. and so have compelled Kashi to litigate the matter over again; and if the appellant would have been bound, so must Kashi be." A similar question arose for decision by the Privy Council in Maung Sein Done v. Ma Pan Nyun AIR 1932 PC 161 . In that case the intestate had two daughters S. and P. and also two sons. The sons took possession of the estate. Thereupon one of the daughters, S. filed a suit against the brothers as also her sister P. for administration of the estate and recovery of 1/4th share claimed by her as due under the Burmese law. P. did not contest the suit but supported the plaintiff's claim by giving evidence in support of the case of the plaintiff. The court found that succession was in accordance with Chinese Customary Law under which no female could inherit in the presence of male issue. The suit was dismissed. Subsequently P. filed another suit for administration and for recovery of her share. The question of res judicata arose under those circumstances. The Privy Council held that the suit was barred by res judicata. That was a case where the earlier suit had been dismissed, a situation similar to that in the case before us. Nevertheless the bar of res judicata was found to operate against the trial of the second suit. Lord Russell of Killowen said thus: "It is well settled that the statement of the doctrine of res judicata contained therein is not exhaustive, and that recourse may properly be had to decisions of the English Courts for the purpose of ascertaining the general principles governing the application of the doctrine. Lord Russell of Killowen said thus: "It is well settled that the statement of the doctrine of res judicata contained therein is not exhaustive, and that recourse may properly be had to decisions of the English Courts for the purpose of ascertaining the general principles governing the application of the doctrine. The well known statement of Wigram V. C. in Cottingham v. Earl of Shrewsbury may, their Lordships think, properly be cited in reference to the present case, viz: "If a plaintiff cannot get at his right without trying and deciding a case between codefendants, the Court will try and decide that case, and the codefendants will be bound. But if the relief given to the plaintiff does not require or involve a decision of any case between codefendants, the codefendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains." Further, in a recent case, Sir George Lowndes, in delivering the judgment of this Board, stated what was required in applying the rule of res judicata as between codefendants in the following language: "In such a case therefore three conditions are requisite: (1) There must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) the question between the defendants must have been finally decided", see Munni Bibi v. Tirloki Nath. Their Lordships now turn to a consideration of the first litigation. The suit brought by Ma Sein was an administration suit, the purpose and object of which was to have the mother's estate divided among her four children as her heirs. To that suit all the alleged heirs were necessary and proper parties, for every one entitled to a share would be entitled to be heard upon the question whether or not an order for administration should be made. Further, no person who was not entitled to a share would be entitled to bring such a suit, or to have any voice upon the question of administration. From the outset, it was clear what was the issue to be decided. Further, no person who was not entitled to a share would be entitled to bring such a suit, or to have any voice upon the question of administration. From the outset, it was clear what was the issue to be decided. The plaintiffs only title to sue depended upon the answer to the question whether all the four children were heirs of the mother or whether only the sons were entitled to succeed to her property, and this, in turn, depended upon the answer to the question whether the succession to the mother's property was governed by Chinese Customary Law or by Burmese Buddhist Law In a word, the question to be determined was one between the sisters on the one hand and the brothers on the other. The rights of each sister in regard to the mother's estate were identical; they were either both of them coheirs with their brothers or neither of them was entitled to any share. The matter which was adjudged was that the succession to Ma Myit's estate was governed by Chinese Customary law and that her daughters therefore were not entitled to any share therein. The language actually used in the appellate Court was as follows: "I would hold that the Chinese Customary Law should be applied to her estate. Under that law her sons, and not her daughters, would inherit, and therefore appellant's suit was rightly dismissed." That is, in terms, a finding that neither Ma Sein nor Ma Pan Nyun was entitled to any share in the estate of Ma Myit. It was urged that the doctrine of res judicata could not apply as between codefendants to a previous suit, if no relief had been granted to the plaintiff in that suit. Their Lordships are aware of no principle or authority which justifies this contention. In Ma Sein's suit there had necessarily to be an adjudication upon the issues involved before the suit could have been dismissed. It was not any less an adjudication because its consequence was the dismissal of the suit, than it would have been if its tenour had been the other way." Reference was approvingly made by Sir John Wallis to these decisions in Kedar Nath v. Munshi Ram AIR 1935 PC 139 . 24. The facts of the case Venkayya v. Narasamma ILR 1888 (II) Mad. 24. The facts of the case Venkayya v. Narasamma ILR 1888 (II) Mad. 204 in the High Court of Madras, a case wherein a similar question arose may be stated with reference to the Headnotes of that decision. "B. sued L.N. and P V. to recover certain property claimed under a nuncupative will of her father N. P. V. denied the will and alleged that the property was ancestral and had vested in him by survivorship. L.N set up title to the property under a will in writing executed by N. and denied the title both of B. and of P.V. The question whether P. V. was divided or not from N. was tried. It was found that the will in writing was valid, that P. V. was divided, and that B's title was not proved, In a suit by L. N. against P.V. to recover certain land granted to her by the will executed by N. : Held that the question whether P.V. was divided from N. was res judicata under S.13 of the Code of Civil Procedure by reason of the decision in the former suit, although in that suit P. V. and L .N. were both defendants." The Court said in that case- "As to the second objection, it is not disputed that, although a plaintiff and a defendant may have been codefendants in a former suit, a matter in dispute between them in a subsequent suit may have formed the subject of active controversy in the former suit so as to preclude them from raising the same question in the subsequent suit. In the case before us, the question whether the respondent's mother's father and the appellant were divided or undivided was a matter directly and substantially in issue in the former suit, regard being had to the title then litigated as between the appellant and the res pendent's mother, and it is also in evidence that the latter took an active part in making good her contention by producing in evidence documents which were used as evidence of partition. We are of opinion then that the position of the respondent's mother in the former suit, though formally defendant in that suit, was not that of a party taking no active part in the contest between the then plaintiff and the appellant before us." 25. We are of opinion then that the position of the respondent's mother in the former suit, though formally defendant in that suit, was not that of a party taking no active part in the contest between the then plaintiff and the appellant before us." 25. We may also refer to the decision of the Bombay High Court in Yeshvant v. Govind AIR 1934 Bombay 313, the facts of which may be summarised by noticing the headnote (c) "A brought a suit in 1913 against his three stepbrothers for a share in a house which was in their possession. Band C, his two nephews, were joined as codefendants. In the plaint A averred that there was a separation of the joint family by virtue of an agreement in 1878 though not by metes and bounds and since then the step brothers were in exclusive possession of the suit property. B and C supported A and also asked the Court to ascertain their share in the house. The Trial Court dismissed the suit on the ground that the claim was time barred and that the stepbrothers were in adverse possession of the house. On appeal, the High Court on the evidence on record found that there was a partition of the family in 1878, and dismissed the appeal as the claim was time barred. In 1925, B and C brought a suit against their stepuncles for a share by partition in the same house alleging that it was joint ancestral property:" Following the decisions of the Privy Council in Mt. Munni v. Tirloki Nath AIR 1931 PC 114 and Maung Sein Done v. Ma Pan Nyun AIR 1932 PC 161 . on these facts, the Bombay High Court held that the bar of res judicata operated in the subsequent suit. 26. Respectfully following the view expressed by the Privy Council in the decisions to which we have adverted, we have to hold that where in the earlier suit there was conflict of interest between the codefendants and such interest had to be resolved by determination in the suit and that was done, it would operate as res judicata and that would be so even in a case where one of the codefendants supports the case of the plaintiff and the plaintiff ultimately loses the suit. The rules relating to res judicata between codefendants would apply under such circumstances. 27. The rules relating to res judicata between codefendants would apply under such circumstances. 27. In the light of what we have found, we are not called upon to consider on the merits of the appeals S. A. 878 of 1971, 907 of 1971 and 911 of 1971, for, in all these appeals, the decision in O. S. 99 of 1965 would operate as res' judicata. The appellant in S. A. 878 of 1971 is challenging the decree in O. S. 53 of 1965 in which suit he is the 29th defendant. He too was a party to the decree in O. S.99 of 1965 and there was conflict of interest between him and the contesting defendants which called for consideration in order to give effective relief to the plaintiff in the suit. Therefore whatever has been said in regard to the other two appeals will apply to this appeal too. Hence we are not entering into the merits of the contentions raised in these appeals. Since these appeals should fail on the ground that the consideration of the questions raised therein arc barred by reason of failure to challenge the decree in O. S. 99 of 1965, they are dismissed. But in the circumstances we direct parties to suffer costs in these appeals. 28. Now we will come to S. A. 1253 of 1972. That the decree in O. S. 317 of 1956 operates as res judicata to bar the trial of the question of title of the plaintiff in the latter suit is evident from what has been discussed earlier in this judgment. That necessarily means that the defendants in the suit are precluded from questioning the title of the plaintiff to recover the suit property. The lower appellate court therefore erred in going into the question of title of the plaintiff.. In view of the decree in O.S. 317 of 1956 it should have been found that the plaintiff's title is a matter beyond challenge. If the suit had been dismissed merely on the finding that the plaintiff had no title reversal of the decrees of the courts below would have been called for. But there is another relevant plea and that concerns the question of limitation for the suit. If the suit had been dismissed merely on the finding that the plaintiff had no title reversal of the decrees of the courts below would have been called for. But there is another relevant plea and that concerns the question of limitation for the suit. The courts below have concurrently found that the plaintiff had failed to prove subsisting title in that the evidence of the plaintiff as to possession within 12 years of the date of suit was not acceptable. The plaintiff having failed to prove such possession dismissal of the suit was inevitable. That would be so irrespective of the title. Learned counsel Sri. Balakrishna Menon has attempted to canvass the correctness of the findings of the courts below on the question of possession. The Trial Court considered the evidence of Pws. 1 to 4, the witnesses of the plaintiff and came to the conclusion that the plaintiffs had not shown possession of the suit property at anytime within 12 years of the suit. The appellate court also came to the same conclusion after an elaborate consideration of the evidence of Pws. 1 to 4. Counsel points out that the question is not merely one of appreciation of evidence. It is particularly said that the finding on the question of title has necessarily influenced the decision on the question of possession and if title could not have been found against the plaintiff the approach might have been different. We find that there is considerable force in this contention considering the approach made to the question by the courts below. In this view, we do not go into the merits of the arguments addressed to us to indicate that even in the matter of appreciation of evidence the approach has been perverse. To illustrate the evident error committed by the courts below we need only refer to the rejection of the evidence of Pw. 3, said to be Kariastha of the Zomarin's Kovilakom. The approach to the evidence has been on the basis that since he was not a Kariastha at the relevant time his evidence is of no use. To illustrate the evident error committed by the courts below we need only refer to the rejection of the evidence of Pw. 3, said to be Kariastha of the Zomarin's Kovilakom. The approach to the evidence has been on the basis that since he was not a Kariastha at the relevant time his evidence is of no use. But his evidence shows that though not a kariastha he was employed in the Estate office at the time of the alleged lease In the light of our reversal of the concurrent finnings on the question of title we think the question of limitation arising on the plea of absence of possession of the plaintiff within 12 years of the date of suit calls for fresh consideration. Therefore we set aside the decrees of the courts below and remit the case back to the Trial Court for disposal of the suit afresh in the light of the decision in the appeal. S.A. No. 1253 of 1972 is disposed of as above. Parties are directed to suffer costs in this appeal.