Judgment :- 1. The plaintiff in O.S. No. 153 of 1979 on the file of the Court of the Munsiff of Nedumangad, which is a suit for specific performance, is the appellant. 2. The plaint schedule property belongs to the defendant. The case of the plaintiff is that on 1-2-1979, the defendant executed an agreement evidenced by Ext. Al in favour of the plaintiff agreeing to sell the plaint schedule property to him for Rs. 1,000/- and an amount of Rs. 100/- was received by her and that as per Ext. Al, the defendant was bound to execute the sale deed in favour of the plaintiff within three months from the date of execution of that agreement receiving the balance of consideration, Rs. 900/- but inspite of repeated demands, the defendant refused to execute the sale deed. The plaintiff sent a notice to the defendant demanding her to execute the sale in her favour receiving the balance of consideration and directing her to go to the Sub Registrar's office, Kattakada on 17-4-1979, for execution and registration of the document. It is his further case that he went to the Sub Registrar's office on 17-4-1979, but the defendant did not turn up and that it is in those circumstances, the suit was filed. 3.. In her written statement, the defendant denied the execution of the agreement and receipt of Rs. 100/-as advance and contended that Ext. Al is a fabricated document and it is not binding on her. 4. Another suit O. S. No. 160 of 1979 was filed by the defendant in O.S. No. 153/ 79, against the plaintiff and some others seeking declaration of title and possession of the plaint schedule property and praying to issue a permanent injunction, restraining the defendant from trespassing into the plaint schedule property or destroying its boundary or committing any waste. 5. The plaintiff in O.S. No. 153/79 is the 3rd defendant in this suit. In his written statement, be admitted that the property belonged to the plaintiff, but contended that she executed Ext. Al. agreement to sell the plaint schedule property to him for a consideration of Rs. 1,000/- and received Rs. 100/-as advance and from the date of Ext. 5. The plaintiff in O.S. No. 153/79 is the 3rd defendant in this suit. In his written statement, be admitted that the property belonged to the plaintiff, but contended that she executed Ext. Al. agreement to sell the plaint schedule property to him for a consideration of Rs. 1,000/- and received Rs. 100/-as advance and from the date of Ext. Al, he was in possession and enjoyment of the property and that be bad filed O. S. No. 153 of 1979 since the plaintiff in this suit failed to execute the document as required under Ext. A I agreement. 6. Both the suits were tried jointly by the trial court, and a common judgment was rendered. Issue Nos.1 and 2 in O S. No. 153 of 1979 are (1) whether the agreement is genuine and (2) whether the plaintiff is entitled to get the sale deed executed in his favour. Issue No. 2 in O. S No. 160/79 is that whether the plaintiff had executed any agreement to sell the schedule property to the 3rd defendant and gave possession of the same as contended? Issue No. 5 in O. S. No. 160 of 1979 is, whether the plaintiff is entitled to get the injunction prayed for. 7. The trial court came to the conclusion that Ext. A 1 was executed by the defendant in O. S. No. 153/79. However, the case of the plaintiff that be was put in possession was disbelieved by the trial court and in this view of the matter, the trial court found that the defendant in O.S. No. 153/79 who is the plaintiff in O.S. No. 160/79 is entitled to get a declaration as prayed for. However the court found that there is no reliable evidence to show that the defendant in O.S. No. 160/79 attempted to trespass into the plaint schedule property and therefore she was not entitled to the injunction prayed for. 8. Aggrieved by the judgment and decree of the trial court in both the suits, she filed AS. No. 88/82 before the District Court. Trivandrum, challenging the judgments and decrees of the trial court in both the suits. 8. Aggrieved by the judgment and decree of the trial court in both the suits, she filed AS. No. 88/82 before the District Court. Trivandrum, challenging the judgments and decrees of the trial court in both the suits. However, in the memorandum of appeal, filed before the District Court, the appeal is stated to be against the judgment and decree of the Munsiff's Court, Nedumangad in O S. No. 153/79 dated 11-12-1981, and the finding on issue No. 5 in O. S. No. 160/79. This is repeated in the relief portion of the memorandum of appeal also. Grounds 3 and 4 in the memorandum of appeal in A. S. No. 88 of 1982 are (1) the court below ought to have held that the so called agreement, Ext. Al is false, fabricated and created by the plaintiff in O. S. No. 153/79 in collusion with pws. 2 and 3 in OS. No. 153/79, and (2) the court below went wrong in finding that Ext. Al is a genuine document simply believing the signature seen over Ext. Al as the signature of the appellant in the appeal. Ground No. 6 in the memorandum of appeal is that the court below went wrong in finding that Ext. Al is genuine simply on the basis of the depositions of the plaintiff in OS. No. 153/79 and the depositions of pws. 2 and 3, who are highly interested in Pw.1. The genuineness of Ext. Al is also questioned in Ground Nos. 8,13 and 16. In Ground No. 20, the ground taken is that the court below went wrong in disallowing the prayer for injunction sought by the plaintiff in O.S. No. 160 of 1979 while the court has found that plaintiff in O.S. No. 160/ 79 has title and possession over the plaint schedule properties. Ground No. 21 also related to the refusal to grant injunction as prayed for in O. S. No. 160/79. The court fee also is seen to have been paid as per valuation in O.S. Nos. 153/79 and 160/79 thereby indicating that the challenge is against the decrees in both the suits. 9. The judgment also indicates that the appeal is against the judgment of the Munsiff's Court in O.S. Nos. The court fee also is seen to have been paid as per valuation in O.S. Nos. 153/79 and 160/79 thereby indicating that the challenge is against the decrees in both the suits. 9. The judgment also indicates that the appeal is against the judgment of the Munsiff's Court in O.S. Nos. 153/79 and 160/79, though in the opening sentence, the learned District Judge states that it is against the judgment and decree in O.S. No. 160/79 that the appeal is filed and in another portion, the court states that the appellant has not filed any appeal against the refusal of the relief of injunction in O.S. No. 160/79. The latter observation is clearly wrong in view of the facts mentioned above. 10. The learned District Judge after elaborately considering the oral and documentary evidence in the case, came to the conclusion that Ext. Al is not a genuine document and that the defendant in O.S. No. 153/79 has not executed the same and the consideration mentioned therein is too meagre to believe that it was executed by her. In this view of the matter, the learned District Judge reversed the judgment and decree of the trial court. 11. In this Second Appeal, the learned counsel for the appellant contended that there is no appeal against the judgment and decree in O S. No. 160/ 79, that the genuineness of Ext. Al was an issue in that suit and that issue was decided against the plaintiff, and that since no appeal was filed challenging that finding, it became final, and that finding will operate as resjudicata and in the circumstances, the lower appellate court ought to have dismissed A.S.A. No. 88 of 1982. As indicated above, it is not true that there was no appeal against the judgment in O. S. No. 160/79. It is submitted by the learned counsel for the appellant that in the appeal memorandum, the finding on issue No. 5 alone is challenged. This argument is not fully correct, since in the memorandum of grounds, the genuineness of Ext. Al has been challenged. 12. It is submitted by the learned counsel for the appellant that in the appeal memorandum, the finding on issue No. 5 alone is challenged. This argument is not fully correct, since in the memorandum of grounds, the genuineness of Ext. Al has been challenged. 12. To substantiate his contention that the failure to file an appeal specifically against issue No. 2 in O. S. No. 160/ 79 would operate as res judicata, the learned counsel for the appellant has cited a Full Bench decision of this court in Janardhanan Pillai v. Kochunarayani Amma (1976 KLT 279), which held that 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, then the others become final and will operate as res judicata Contrary view taken in Panchanada Velan v. Vaithinatha Sastrial (AIR. 1929 Madras 333), Lakshmi Ammal v. Official Receiver - Tinnevelly (AIR. 1935 Madras 214), Papammal v. Meenammal (AIR. 1943 Mad. 139) K. Bivi Ammal v. A. Nadar (AIR. 1970 Madras 76) Manohar Vinayak v. Laxman Anandrao (AIR. 1947 Nagpur 248) Sankar Sahai v. Bhagwat Sahai (AIR. 1927 Lahore 289), Umrao Sing v. Mst. Munni (AIR. 1958 Punjab 83) Subramonian v. Nagarama (AIR. 1954 T.C. 235) and in Shri Ram v. Shripat Singh (AIR. 1957 All. 106) were dissented from and the decisions in Sarah Abraham v. Paily Abraham (AIR 1959 Ker. 75) and Govindan v. Kunhi Kanan Vydier (1963 (1) KLR 400) and A.S. No. 226 of 1972 (Ker.) were overruled. There is elaborate discussion on this aspect in the judgment. In view of the above Full Bench decision of this court, it has to be held that if two suits are tried jointly, and common issues are raised in both suits and only the decision in one suit is appealed from, the finding in other suit becomes final and operates as res judicata in determining the appeal filed against one suit. The learned counsel for the appellant submitted that the relief sought in O.S. No. 160/79 is the relief for injunction and in considering the issue, the question whether Ext. Al agreement was genuine was really relevant and that though possession pleaded by the appellant was negatived by the trial court, the issue relating to genuineness of Ext. The learned counsel for the appellant submitted that the relief sought in O.S. No. 160/79 is the relief for injunction and in considering the issue, the question whether Ext. Al agreement was genuine was really relevant and that though possession pleaded by the appellant was negatived by the trial court, the issue relating to genuineness of Ext. Al was found in bis favour by the trial court and in the circumstances, it cannot be said that since the other suit was for injunction, only the question of possession arose and that question having been found against the appellant there principle of res judicata will not operate. The learned counsel placed reliance also on a Division Bench ruling of this court in Cheru v. Choyikutty (1988(2) KLT 727), to which I am also a party. In this case, this court held that although the relief sought was confined to injunction, the issue on title was relevant in'so far as the dispute related to a narrow strip of land lying between properties admittedly in the respective ownership and possession of the plaintiff and defendants. However, in the instant case, the question of genuineness of Ext. Al arises only incidentally. The main question was whether the defendant in O.S. No. 160/ 79 was in possession of the property. It is only in support of his contention and to strengthen his plea of possession, that the defendant in that suit relied on Ext. Al agreement. On the question of possession, the court really found against the defendant and therefore the determination on the question of genuineness of Ext. Al was unnecessary in that suit. In the circumstances, the observations contained in Cheru's case (supra) may not be applicable to the facts of this case. The learned counsel for the respondent relied on the decision of the Supreme Court in Narhari and others v. Shankar and others (AIR 1953 SC 419) and contended that when there are two suits tried simultaneously, there cannot be any decision in the former suit and no question of res judicata can arise. The learned counsel for the respondent relied on the decision of the Supreme Court in Narhari and others v. Shankar and others (AIR 1953 SC 419) and contended that when there are two suits tried simultaneously, there cannot be any decision in the former suit and no question of res judicata can arise. This decision has been noticed by the Full Bench of this court in Janardhana Pillai's case (supra), but the court observed that in view of the subsequent decision of the Supreme Court in Sheodan Singh v. Daryaokunwar (AIR 1966 SC 1332) the question was still at large and is not finally concluded by the decision in Narhari's case (supra). In the circumstances, I do not think that the observations contained in Narhari's case will in any way help the respondent. Further, there was only one suit in that case, though there were two different appeals and it is in that context, the court made the observations that failure to file an appeal from one of the appeals will not operate as res judicata. 13. As I indicated earlier, the Second Appeal is a consolidated appeal against both OS. Nos. 153 and 160 of 1979. The court fee also has been paid on that basis and the appeal has to be treated as a consolidated appeal from two suits. The grounds are common and in the memorandum of appeal, the genuineness of Ext. Al has been taken as a ground and the finding of the trial court on the genuineness of Ext. Al is challenged. No doubt, in the memorandum of appeal, the appeal is stated to be one against finding on issue No. 5 of OS. No. 160/79 and the judgment and decree in OS. No. 153/79. Issue No. 5 in OS. No. 160/79 related to issue of injunction. That is the main issue that had to be considered in that suit. It appears to me that, in substance, there is challenge to the finding on issue relating to genuineness of Ext. Al also. Specific grounds have been taken relating to the issue of genuineness of Ext. Al in the memorandum of appeal. 14. The learned counsel for the respondent further submitted that the appellant has not raised the plea of res judicata before the lower appellate court and therefore it is not open to the appellant to raise that question in the Second Appeal. Al in the memorandum of appeal. 14. The learned counsel for the respondent further submitted that the appellant has not raised the plea of res judicata before the lower appellate court and therefore it is not open to the appellant to raise that question in the Second Appeal. It is not disputed that the plea of resjudicata was not taken before the lower appellate court. In support of this contention, the learned counsel for the respondent invited my attention to a Division Bench ruling of the Travancore-Cochin High Court in Neelakanta Pillai Mathevan Pillai and others v. Neelamma Pillai Thankachy Bagavathi Thankachy (AIR. 1952 T.C. 452), where the court made the following observances: "(8), A plea founded upon the rule or principle of res judicata is a plea that can be waived by a party: 'Rajani Kumar v. Ajmaddin Bhutva'. AIR 1929 Cal. 163. A party is not entitled to go into the question of res judicata when it has not been properly raised by the pleadings: Jagadish Chandra v. Gour Hari Mahato', AIR 1936 PC. 258. Decided cases even bold that a party who fails to plead res judicata as a defence "is not entitled to take advantage of an evidence which happens to be on the records for a different purpose to establish such a claim:' Ramprosadgiri v. Krishna Nardgirt', AIR 1938 Bom, 23 at p. 30. Ordinarily it is not permissible to allow a plea of res judicata to be raised for the first time in appeal: 'Rangayya v. Vallabhanent Ramayya' AIR 1941 Mad. 815. We have already said that the objection petition did not contain any reference to this plea nor does the order show that it was taken before the execution court. Before the lower appellate court it was, objected that the plea should not be allowed to be raised. In the circumstances of the case and on the authorities referred to we hold that the respondent should not have been allowed to raise this plea for the first time in appeal. Accordingly we set aside the lower appellate court's decision founded on it. In the circumstances of the case and on the authorities referred to we hold that the respondent should not have been allowed to raise this plea for the first time in appeal. Accordingly we set aside the lower appellate court's decision founded on it. No doubt, we are calling to aid a technical argument but where interests of justice demand it courts have to use such arguments to defeat equally or more technical contentions; Here it is common ground that the Munsiff's prior order was manifestly wrong." The Privy Council in (Raja) Jagadish Chandra Deo Dhabal Det v. Gour Hari Mahato & Others (AIR. 1936 P. C. 258) made the following observations: "Two questions are involved, the first being the question of res judicata; The High Court declined to allow the appellant to go into the question of res judicata on the ground that it had not been properly raised by the pleadings or in the issues, particularly in the issues It seems to their Lordships that the High Court was right in this view " In Rajani Kumar Mitra and others v. Ajmaddin Bhuiya (AIR. 1929 Cal. 163) a Division Bench of the Calcutta High Court also considered this question. The court said: "The bar of res judicata is one which does not affect the jurisdiction of the Court but is plea in bar which a party is at liberty to waive. If a party does not put forward bis plea of res judicata in a suit be must be taken to have waived it or it must be taken to be a matter which ought to have been made a ground of attack and deemed to have been a matter directly and substantially in issue in the suit under Explanation (4), S.11, Civil P.C. The party omitting to plead resjudicata intentionally invites the Court to decide the case on the merits and having failed to secure a decision in his favour he should not be allowed to go behind the last adjudication and ask for the trial of an issue which be could have raised at the previous trial." It seems to me that the learned counsel is well founded is his contention that the respondent herein having failed to raise the contention before the lower appellate court should not be permitted to raise the contention in the Second Appeal on the principle enunciated in the above decisions. 15. The lower appellate court has given cogent reasons to come to the conclusion that Ext. A 1 is not a genuine document. The defendant in her evidence as dw.1, stated that she is an illiterate lady. Ext. Al does not contain her signature. There are only 4 vertical lines. No thump impression has been taken. She has given evidence that she has not executed the document. Her evidence clearly indicates that this is the only property she possesses and she is residing in the property. It is also very clear from the evidence that the consideration cited in Ext. Al is very meagre. Abe extent of the property is approximately 27 cents and the total consideration stated in Ext. A2 is only Rs. 1,000/-. S.20 of the Specific Relief Act clearly states that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so. It is also clear that the discretion of the court is not arbitrary, but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Sub-section (2)(b) of S.20 of the Specific Relief Act states that where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff, the court can refuse to grant a decree for specific performance. It is clear from the evidence in the case that the performance of the alleged contract would involve hardship on the defendant and non-performance would involve no such hardship on the plaintiff. In the circumstances even on the assumption that Ext. Al is genuine, the court is not bound to grant relief to the plaintiff in view of the hardship that is involved on the defendant if the contract is performed. Asindicated above in the instant case there is ample evidence to show that Ext. A1 is not genuine. The foregoing discussion would show that there is no ground to interfere with the decree of the lower appellate court. The Second Appeal fails and it is accordingly dismissed. No costs.