JUDGMENT S. Padmanabhan, J. 1. Suit property belonged to deceased Narayani Amma. Her six children are the defendants in OS No. 451 of 1977 and defendants 1 to 5 and plaintiff in OS No. 248 of 1978 on the file of the Munsiff, Quilandy. On 10-1-1972, she executed Ext. B1 will bequeathing the suit property in favour of the fifth defendant. On 24-1-1977, she is alleged to have entered into Ext. A1 agreement with Syamala Devi for the sale of the property. On 14-7-1977, Narayani Amma gifted the property to the fifth defendant under Ext. B8. OS No. 451 of 1977 was filed by Syamala Devi against the six children of Narayani Amma for specific performance of Ext. A1 agreement. All the defendants opposed the claim. Defendants 1, 3 and 5 based their claim on Exts. B1 and B8 also. OS No. 248 of 1978 was filed by Sumathi Amma (sixth defendant in OS No. 451 of 1977) against defendants 1 to 5 in OS No. 451 of 1977 as defendants 1 to 5 and plaintiff in. OS No. 451 of 1977 as sixth defendant for partition and recovery of her share avoiding Exts. A1, B1 and B8. Genuineness and enforceability of these documents were among the moot points in both the cases, which are interparties. 2. Both the suits were jointly tried and disposed of by a common judgment. OS No. 451 of 1977 was decreed for specific performance of Ext. A1 and for that reason, OS No. 248 of 1978 was dismissed. In both the cases, Exts. B1 and B8 were found invalid and set aside. Three appeals were filed before the Subordinate Judge, Vadakara. AS No. 88 of 1982 was filed by defendants 1, 3 and 5 against the decree for specific performance in OS No. 451 of 1977. AS No. 104 of 1982 was also filed by them challenging the finding in OS No. 248 of 1978 that Exts. B1 and 8 are invalid documents liable to be set aside. AS No. 101 of 1982 was filed by the plaintiff in OS No. 248 of 1978 against the dismissal of that suit. All the three appeals were heard together and disposed of by a common judgment. AS No. 88 of 1982 was allowed and OS No. 451 of 1977 filed for specific performance was dismissed holding that Exts. A1, B1 and B8 are all invalid documents.
All the three appeals were heard together and disposed of by a common judgment. AS No. 88 of 1982 was allowed and OS No. 451 of 1977 filed for specific performance was dismissed holding that Exts. A1, B1 and B8 are all invalid documents. Exts. B1 and B8 were set aside. AS No. 101 of 1982 was allowed and the dismissal of OS No. 248 of 1978 was set aside. A preliminary decree for partition was passed in that case on the finding that Exts. A1, B1 and B8 are all invalid documents. Exts. B1 and 8 were set aside. AS No. 104 of 1982 was dismissed confirming the findings against the validity of Exts. B1 and 8. Thus all the three judgments uniformly invalidated Exts. B1 and 8 with all the parties on the array. 3. The decision in AS No. 88 of 1982 dismissing the specific performance suit, OS No. 451 of 1977, invalidating Exts. A1, B1 and B8 was challenged by the plaintiff in that case in SA No. 83 of 1986 before this court with all other parties as respondents. That second appeal was dismissed as out of time. Nobody else challenged the decision in AS No. 88 of 1982. That decision setting aside Exts. B1 and 8 has become final. The present second appeal filed by defendants 1, 3 and 5 is only against the preliminary decree for partition passed by the appellate court in AS No. 101 of 1982 in reversal of the dismissal of OS No. 248 of 1978 setting aside Exts. B1 and 8. The decision in AS No. 104 of 1982 was not challenged by anybody. 4. Thus two decisions of the appellate court invalidating Exts. B1 and 8 became final and the present second appeal is only against the third appellate decision. The appellants could succeed in getting the preliminary decree for partition set aside only if they are able to establish their claims under Exts. B1 and 8. Otherwise, all the six children of Narayani Amma must get shares and the preliminary decree for partition must stand. A preliminary objection was raised on behalf of respondents 1 and 3 that the claim in that respect is barred by res judicata on account of the concluded decisions.
B1 and 8. Otherwise, all the six children of Narayani Amma must get shares and the preliminary decree for partition must stand. A preliminary objection was raised on behalf of respondents 1 and 3 that the claim in that respect is barred by res judicata on account of the concluded decisions. The omission of the appellants to take note of the law in that respect, authoritatively laid down by a Full Bench decision of this court in Janardhanan Pillai v. Kochunarayani Amma, 1976 KLT 279, has now become fatal to them. 5. In S.11 of the Code of Civil Procedure, there is a prohibitory injunction against trial of a suit or issue in which the matter was directly and substantially in issue in a former suit and heard and finally decided interparties by a court of competent jurisdiction. Former suit is one which was decided earlier whether or not it was instituted earlier. When the decision interparties has become final and the court is one having jurisdiction, it is immaterial whether there is a right of appeal or not. When there is a right of appeal, the effect of not filing an appeal is that the decision becomes final. That rule applies to appeals also. All findings essential to sustain the decision are also res judicata. A litigant bound by a previous decision, which operates as res judicata, could avoid the bar under S.11 only by taking advantage of the provisions of S.44 of the Evidence Act, which defines with precision the grounds of such avoidance as fraud or collusion or incompetency of the court to deliver the former judgment. Even a wrong decision interparties will operate as res judicata if it is allowed to become final, provided it was rendered by a competent court. Res judicata is not concerned with the correctness of the previous decision. If it is incorrect, it will have to be corrected by appeal or revision. If an appeal is filed and it is withdrawn or dismissed on a preliminary point or dismissed for default or on the ground of limitation, the parties will be bound by the decision of the lower court on each point actually decided by it and those decisions will operate as res judicata. 6.
If an appeal is filed and it is withdrawn or dismissed on a preliminary point or dismissed for default or on the ground of limitation, the parties will be bound by the decision of the lower court on each point actually decided by it and those decisions will operate as res judicata. 6. When two or more suits or appeals are jointly heard and disposed of by a common judgment entering findings on issues in them, all the findings will bind the parties separately and they will operate as res judicata, if not challenged and corrected in appeal. That is the effect of various decisions, including Badri Narayan Singh v. Kamdeo Prasad Singh, AIR 1962 SC 338 , Lonankutty Thomman and Another, AIR 1976 SC 1645 and Janardhanan Pillai's case, 1976 KLT 279. If in such cases only the decision in one or some of them is / are appealed against on the impression that appeal against the other decisions is unnecessary because issues and findings are the same, the parties will be doing so at their peril. That is because the other decisions on identical issues will become final and they will operate as decisions in former suits, which prohibit trial in others. The question of res judicata in such cases may arise for decision only when the appeal against the connected decision is taken up for consideration by the appellate court. That will be at a subsequent point of time, when the earlier decision has already become final and prevent the later decision. The question whether all the previous decisions rendered interparties on identical matters were simultaneously would then be irrelevant. That is not because the right of appeal becomes unavailable for the reason that the other decisions were not appealed against, but because the appeal cannot be considered on the merits by reason of the bar of res judicata. If a party bound by the decree omits to challenge it, he must face the consequences even if it be due to wrong legal advise. Simultaneous decisions even if it be by the same judgment cannot have any exemption from the bar of res judicata if one or more of them is / are allowed to become final by omission to challenge. The proper course, in such cases, will be to file appeals against all the decisions at least formally to avoid the bar.
Simultaneous decisions even if it be by the same judgment cannot have any exemption from the bar of res judicata if one or more of them is / are allowed to become final by omission to challenge. The proper course, in such cases, will be to file appeals against all the decisions at least formally to avoid the bar. Plea of res judicata has to be decided in such cases with reference to the time the matter comes up for consideration. If, by that time, an earlier decision by a competent court on the same issue interparties has become final and the question directly and substantially in issue is the same, such earlier decision would operate as res judicata. 7. That is what happened in this case. Appellants did not challenge the decision in AS No. 88 of 1982 dismissing OS No. 514 of 1977 by invalidating Exts. B1 and B8 also. They did not even file a cross objection in SA No. 83 of 1986. The decision in AS No. 104 of 1982, which also set aside Exts. B1 and B8, was not challenged. These decisions have become final and conclusive. Invalidation of Exts. B1 and B8 has thus become final. In the present second appeal, relief could be granted only if these decisions could be challenged. There is bar of res judicata. Second appeal is, therefore, dismissed. No costs.