JUDGMENT The plaintiffs in O.S.No.399 of 1980 and O.S.No.1517 of 1982 on the file of the III Addl. District Munsif, Coimbatore, who are the defendants in O.S.No.440 of 1980 are the appellants in all the appeals. 2. The subject matter of O.S.No.399 of 1980 is a cart track, as described in the plaint plan ‘A B C D E F G H’. In respect of this cart track, injunction is sought for. In the same suit, mandatory injunction is also sought for, for a portion of the above said cart track viz., ‘F G’. 3. It appears the defendant in the said suit by name Krishnan along with Karuppanna Gounder, who is the subsequent purchaser or so, attempted to demolish or damage the above said cart track and in that process, they have also demolished a portion of the cart track resulting the same plaintiffs filing O.S. No.1517 of 1982 for permanent injunction from demolishing or damaging the same cart track as well as for mandatory injunction directing the defendants to restore the demolished suit cart track. 4. Before the filing of O.S.No.1517 of 1982, the first defendant therein has filed a suit in O.S.No.440 of 1980 against the plaintiffs in O.S.No.399 of 1980 for permanent injunction to restrain them from interfering with the suit cart track. 5. Not satisfied by the above three suits, once again the plaintiff in O.S.No.440 of 1980 filed another suit viz., O.S. No.328 of 1981 for permanent injunction in respect of 10 ft. portion of the cart track. 6. It is conceded by either counsel that in all the suits, the subject matter is one and the same, viz., the entire cart track as described in the plan filed in O.S.No.399 of 1980 or a portion of the same. As disclosed by the pleadings, the rights are claimed on the same basis by the plaintiffs in O.S.Nos.399 of 1980 and 1517 of 1982 and the defence therein as well as the case of the defendant as plaintiff in O.S. Nos. 440 of 1980 and 328 of 1981, are one and the same. In view of the above admitted position, as agreed by the parties, all the above said four suits have been taken for joint trial by consent and a common judgment was rendered on 31.7.1990. 7. 440 of 1980 and 328 of 1981, are one and the same. In view of the above admitted position, as agreed by the parties, all the above said four suits have been taken for joint trial by consent and a common judgment was rendered on 31.7.1990. 7. The parties have examined 4+3 witnesses as well as marked number of exhibits, and relied on Commissioner’s Report. The learned III Addl. District Munsif, Coimbatore, while evaluating the above materials came to the conclusion, that the appellants herein have made out a case as pleaded in the plaints as well as pleaded in the written statement, where they are defendants, whereas the respondents herein have not made out a case to reject the claim of the appellants herein. Thus taking the decision, the suits in O.S. Nos. 399 of 1980 and 1517 of 1982 were decreed and the suit in O.S.No.440 of 1980 was dismissed. At the same time, O.S.No.328 of 1981 was decreed as prayed for, in addition rejecting a portion of the claim of the plaintiffs in O.S.No.1517 of 1982 as per the above said common judgment. 8. Aggrieved by the decision of the trial Court, the defendants in O.S. Nos. 399 of 1980 and 1517 of 1982 preferred appeals A.S. Nos.211 of 1990 and 210 of 1990 respectively and the plaintiffs also filed cross-objections for the disallowed claim in O.S.No.1517 of 1982 in A.S.No.210 of 1990. The plaintiff in O.S.No.440 of 1980, who suffered a decree of dismissal preferred an appeal in A.S.No. 212 of 1990. As far as the decree granted by the trial Court in O.S.No.328 of 1981, it was not challenged by the defendants therein, who are the appellants herein. Therefore, the decree granted by the trial Court in O.S.No.328 of 1981 as per the common judgment dated 31.7.1990 reached its finality and as far as this aspect is concerned, there is no dispute between the parties. 9. The learned Subordinate Judge considering the common interest involved in all the above said three appeals viz., 210 of 1990, 211 of 1990 and 212 of 1990 took the case jointly and rendered a common judgment on 25.11.1991. 9. The learned Subordinate Judge considering the common interest involved in all the above said three appeals viz., 210 of 1990, 211 of 1990 and 212 of 1990 took the case jointly and rendered a common judgment on 25.11.1991. The learned Subordinate Judge by going through the pleadings as well as the evidence felt that the trial Court has committed an error, while appreciating the evidence resulting an erroneous judgment of decreeing the suits of the appellants herein and dismissing the suit of one of the respondents herein viz., Krishnan. Thus taking the view, all the three appeals were allowed and the result is O.S.No.399 of 1980 and O.S.No.1517 of 1982 stand dismissed and O.S.No.440 of 1980 stands decreed. 10. Aggrieved by the above said judgments, the second appeals are preferred viz., S.A.Nos.200 to 202 of 1994. 11. This Court, while admitting the above second appeals, had formulated the following substantial questions of law for determination: 1. Whether the conclusion of the lower appellate Court on the question of the appellants right to use the suit cart track is vitiated by the lower appellate Court ignoring the weight of preponderating circumstances and allowing its judgment to be influenced by inconsequential matters? 2. Whether the lower appellate Court’s finding that the CD. portion of the carttrack is in the poramboke land that there is no agreement in respect of the suit cart track as pleaded by the appellants has been arrived at ignoring the material evidence on record? 12. Mr. V. Nicholas, the learned counsel appearing for the respondents in all the appeals would submit, that in view of the decision in O.S.No.328 of 1981, which reached finality, the appeals are not maintainable as they are barred by res judicata. In support of the above contention, inviting my attention to a number of decisions, it was urged that this Court need not go into detail about the other aspects of the case and the appeals could be disposed of on the simple ground of res judicata. 13. In all the second appeals, there are two appellants and they are brothers. One of the appellants by name S.A. Viswanathan died, his L.Rs. were not brought on record. Therefore, it was urged on behalf of the respondents that since the L.Rs. 13. In all the second appeals, there are two appellants and they are brothers. One of the appellants by name S.A. Viswanathan died, his L.Rs. were not brought on record. Therefore, it was urged on behalf of the respondents that since the L.Rs. of one of the appellants have not been brought on record, all the second appeals should be treated as abated and this being the position, question of deciding the appeals on merit would not arise for consideration. 14. Responding to the above submissions, Mr. N. Manokaran, the learned counsel appearing for the appellants would submit, that at no point of time, the respondents herein have taken the plea of res judicata, though it was available at the stage of the first appeal and in the absence of plea, it is not open to the respondents to oppose the appeals on the ground of res judicata on the basis of the decision rendered in O.S. No. 328 of 1981. It is the further submission of the learned counsel for the appellants, that cause of action in respect of the suits survives and this being the position, for the death of the first appellant, all the above appeals cannot be dismissed as abated and the appeals have to be disposed of on merits, considering the fact that one of the appellants is available to prosecute the case. Therefore, in view of the above said stand taken by the learned counsel for the appellants, we have to see whether the appeals are abated and what is the position. 15. The first appellant, by name S.A. Viswanathan, who is the brother of the second appellant by name S.A. Natarajan died on 27.8.2001. Within the time prescribed, L.R. application has not been filed to bring the Legal Representatives of the first appellant and only on 8.12.2004, a memo has been filed stating that the first appellant died on 27.8.2001 leaving behind the second appellant alone as his sole legal representative, which was recorded. 16. The learned counsel for the respondents would submit, that for non-bringing the L.Rs. of the first appellant within the time, the appeals abate in toto and therefore, even the second appellant viz., the brother of the first appellant cannot continue the appeals. 16. The learned counsel for the respondents would submit, that for non-bringing the L.Rs. of the first appellant within the time, the appeals abate in toto and therefore, even the second appellant viz., the brother of the first appellant cannot continue the appeals. Considering the facts and circumstances of the case, as well as the nature of the claim in the suit, I am unable to agree with the submission made by the learned counsel for the respondents. 17. Order 22 Rule 1 of C.P.C. says: ""The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives"". Order 22 Rule 2 says: ""Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or as against the surviving defendant or defendants;"" thereby showing, if the cause of action survives despite the fact that one of the plaintiff died, the suit could be proceeded further. As amended under Order 22 Rule 3 C.P.C., where the right to sue does not survive to the surviving plaintiff, then only the suit shall abate, not otherwise. In this case, both the appellants being the brothers have claimed a right jointly over the suit cart track and the death of one of the appellants certainly will not abate the suit because the cause of action survives/upon the surviving plaintiff viz., the second appellant herein. 18. The ratio laid down by this Court in Duraiswami v. Munisami (1992) 2 MLJ 638 may not have application to the present case, since there cannot be any conflict of decision because of the survival of cause of action as pointed out supra. 19. In Shahazada Bi v. Malimabi 2004 (7) SCC 354 , the Apex Court has considered the question of abatement wherein it is said that if interests of co-defendants are distinct and separate, suit would abate only as regards the specific interest of the deceased defendant, although all the defendants had been joined together in a single suit. 19. In Shahazada Bi v. Malimabi 2004 (7) SCC 354 , the Apex Court has considered the question of abatement wherein it is said that if interests of co-defendants are distinct and separate, suit would abate only as regards the specific interest of the deceased defendant, although all the defendants had been joined together in a single suit. It is further held, that abatement of suit only against the deceased defendant and decreeing of the suit against the remaining defendants would result in passing of two conflicting decrees so that enforcement of one would negate enforcement of other. This kind of situation is not available in this case, because there could not be conflicting decisions between the plaintiffs because of the fact, both having common interest and cause of action survives. Having regard to the above facts and circumstances of the case, it is to be concluded unhesitatingly that the appeals are not abated and the remaining appellant could prosecute the appeal. Having reached this conclusion, next we have to see whether the decree and the judgment in O.S. No. 328 of 1981, which reached finality is a bar to the present appeals. 20. The learned counsel, Mr. N. Manokaran, appearing for the appellants inviting my attention to a decision of this Court in Marisami v. Bluemount S. Associates (P) Ltd. (1969) 1 MLJ 579 would submit that plea of res judicata is not a pure question of law and it involves a mixed question of law and therefore, there should be plea, raising the factual foundation and then only res judicata could be decided. In this case admittedly, there was no plea in the written statements and there could not be also, since at that time, there was no possibility to raise the question of res judicata, since all the suits were taken together for trial. Therefore, it is not possible to say, considering the facts and circumstances of the case, in the absence of pleadings, the respondents are not entitled to raise the plea of res judicata. True, if the principle of res judicata is raised based upon independent facts, not connected with the present suits, then there should be pleadings, attracting the ingredients required under Section 11 C.P.C. In this case, common judgment was delivered in respect of the same property based upon the same pleadings though for different portion of the property. True, if the principle of res judicata is raised based upon independent facts, not connected with the present suits, then there should be pleadings, attracting the ingredients required under Section 11 C.P.C. In this case, common judgment was delivered in respect of the same property based upon the same pleadings though for different portion of the property. In deciding the rights of the parties to the entire suit cart track or a portion of the same, the points raised were one and the same and the Courts also have given a finding based upon those pleadings. Therefore, no separate pleadings is necessary to decide the res judicata and all the materials required are available in the common judgment and therefore, the respondents are permitted to raise the plea of res judicata, being question of law, at this stage. 21. It is not the case of the learned counsel for the appellants that the decree and judgment in O.S.No.328 of 1981 has no bearings in other suits. In O.S.No.328 of 1981, as seen from the lower Court’s judgment, a portion of the cart track in Survey No.335 is claimed as that of the appellants. On the basis of the pleadings, two issues were framed, whether the plaintiffs are entitled to claim exclusive right over Survey No.335 and whether there was an agreement between the plaintiffs predecessors-in-interest and defendants’ predecessors-in-interest regarding the enjoyment of the cart track. As seen from paragraph page 10 (sic) of the printed judgment of the lower Court, a finding is given that the cart track was obliterated by the defendants viz., the appellants and the same is not exclusively belonging to the defendants. This cart track portion is the subject matter of the other suits also admittedly. Therefore, factually the subject matter of the suit in O.S.No.328 of 1981 also forms part of the subject matter of the other suits. In this view, the finding therein which reached finality must be binding upon the parties. Admittedly, the appellants, who suffered a decree in O.S.No.328 of 1991 has not preferred any appeal and therefore, as rightly submitted by the learned counsel for the respondents, the decision therein would operate as res judicata in these appeals and the same is supported by plethora of decisions. 22. Admittedly, the appellants, who suffered a decree in O.S.No.328 of 1991 has not preferred any appeal and therefore, as rightly submitted by the learned counsel for the respondents, the decision therein would operate as res judicata in these appeals and the same is supported by plethora of decisions. 22. In Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332 , question of res judicata was considered where two appeals were filed and one of them was dismissed on the ground of limitation or default in printing and the question put before the Apex Court was, whether that decision would operate as res judicata. The Apex Court has held as follows: “Where the trial Court has 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.” 23. Section 11 C.P.C., would read: “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......;” thereby showing in order to apply the principle of res judicata, the decision relied on must have been rendered in a formerly instituted suit. Explanation 1 to Section 11 defines “former suit” as follows: “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”. 24. The question, “What is ‘former suit’”? was decided by the Apex Court in Lonankutty v. Thomman AIR 1976 SC 1645 wherein it is observed, “former suit” shall denote a suit, which has been decided prior to the suit in question whether or not it was instituted prior thereto. In the present case on hand, a decision was rendered in O.S.No.328 of 1981 prior to the disposal of the second appeals. In the present case on hand, a decision was rendered in O.S.No.328 of 1981 prior to the disposal of the second appeals. Therefore, though the suit was instituted in 1981, i.e. after O.S.No.399 of 1980, under the facts and circumstances it should be held that the decision rendered in O.S.No.328 of 1981 must be a decision in the former suit in view of the fact it was decided on 31.7.1990 i.e. before the disposal of the second appeals. 25. This Court in K. Khaja Mohideen v. K. Muhaideen AIR 1979 Mad. 155 , considering the joint trial of cross suits between the same parties has taken the view that if an appeal has not been preferred in one of the suits, which were tried commonly and common judgment was rendered, the decree and judgment, wherein appeal has not been preferred shall operate as res judicata and this position is based upon the Supreme Court rulings also. 26. In Kandaswami v. R.A. Murugesan AIR 1983 Mad. 131 , this Court has held, that by a common judgment by the trial Court, if one suit is decreed and another suit is dismissed, the appeal was barred by res judicata as decree in another suit not having been appealed against the finding in that suit, since that had reached finality. 27. The same view was taken by this Court in Arumugha Nainar v. Lakshmana Perumal (died) (1992) 1 MLJ 457 , A.S.A. Arumugam v. Ramalinga Nadar 1997 (3) CTC 384 and Renganayaki v. Renganatha Mudaliar (2001) 1 MLJ 212 . 28. The learned counsel for the respondents invited my attention to a decision of the Supreme Court in Premier Tyres Limited v. Kerala State Road Transport Corporation AIR 1993 SC 1202 in support of the non-maintainability of the appeals. In the case involved in the above decision, two suits were tried together, a common judgment was rendered and aggrieved party preferred an appeal only in one suit and failed to challenge the judgment in another suit. While considering the fact that no appeal has been preferred against one of the judgments, the Supreme Court has taken the view as follows: “Where an appeal arising out of connected suit is dismissed on merits the other cannot be heard, and has to be dismissed. While considering the fact that no appeal has been preferred against one of the judgments, the Supreme Court has taken the view as follows: “Where an appeal arising out of connected suit is dismissed on merits the other cannot be heard, and has to be dismissed. Where no appeal is filed, as in this case from the decree in connected suit, it has the same effect of non-filing of appeal against a judgment or decree. Thus the finality of finding recorded in the connected suit, due to nonfiling appeal precludes the Court from proceeding with appeal in other suit;” which principle is squarely applicable to the present case. 29. From the above decisions, it is demonstrated that the law is well settled, that if a party, who suffered a decree and judgment by way of common judgment failed to prefer an appeal challenging the same, then that would operate as res judicata barring appeal against another decree and judgment also. 30. In the case on hand, as repeatedly said and concededly also, the finding in O.S.No. 328 of 1981 reached finality and the said findings therein would come within Section 11 of C.P.C. Therefore, as rightly submitted, supported by a number of rulings, as quoted above, the appeals are barred by res judicata and therefore, the question of deciding the same independently on merit does not arise for consideration. For these reasons, all the appeals deserve to be dismissed as not maintainable. Since the appeals are not maintainable, it is unnecessary on the part of this Court to go into the details about other aspects of the case. In the result, all the appeals are dismissed confirming the decree and judgment of the II Addl. Subordinate Judge, Coimbatore in A.S. Nos.211, 210 and 212 of 1990 dated 25.11.1991. Considering the facts and circumstances of the case, the parties are directed to bear their respective costs.