JUDGMENT : This second appeal under section 100 of the Code of Civil Procedure has been filed challenging the judgment and decree passed by the learned Second Additional District Judge, Berhampur in T.A. No. 13 of 1990. 2. The predecessor-in-interest of the respondents as the plaintiff had filed the suit i.e. T.S. No. 80 of 1983 in the court of Munsif, Berhampur (as it was then) against the appellant being arraigned as the defendant for the following reliefs: (a) directing the defendant to deliver vacant possession of the suit property to the plaintiff in its original condition, after removal of structures, etc. at his own cost and in default to cause delivery to the plaintiff, the property be delivered through court; (b) to grant cost of the suit, and (c) to grant such other relief as the Hon’ble court deems fit under the circumstances of the case. 3. Plaintiffs case is that on 01.07.1953, one Rama Chandra Mardaraj Deo, the father of the original plaintiff executed a registered lease deed (Ext.1) in favour of Burmah Shell and Oil Storage and Distributing Company of India Ltd., with its duration for a period of thirty years commencing from on and 01.11.1952. The suit premises was leased out to the defendant for its use as Petrol Pump on a monthly rent of Rs.45/-. The lease expired by efflux of time on 31.10.1982. As per the conditions of the said lease deed, clause of renewal was provided at the option of the lessee expressing its desire for the same to the lessor three months prior to the expiration of the period of lease. The original plaintiff issued notice dated 01.03.1982 expressing his intention not to further extend the lease and asking Bharat Petroleum Corporation Ltd. to vacate the premises on expiry of the lease period on 31.10.1082. It may be stated that M/s. Bharat Petroleum Corporation Ltd., had by then stepped into the shoes of the original lessee by virtue of the enactment i.e. Burmah Shell (Acquisition of Undertaking in India) Act, 1976. Since no reply was received, the notice vide Ext.4 dated 01.10.1982 was again issued with a request to hand over the possession of the suit site. This notice also went without any response. Since no reply was received, the notice vide Ext.4 dated 01.10.1982 was again issued with a request to hand over the possession of the suit site. This notice also went without any response. M/s Bharat Petroleum Corporation Ltd., then issued a letter vide Ext.5 dated 14.10.1982 expressing its intention for renewal of the lease for further period of five years with effect from 01.11.1982 which was just about sixteen days prior to the expiry period of lease. The original plaintiff then issued another letter on 22.10.1982 (Ext.6) expressing his clear intention in no more renewing the lease and thereby again commanded for delivery of vacant possession of the suit premises which also went unheeded. So, the suit for eviction has come to be filed for directing M/s. Bharat Petroleum Corporation (defendant) to deliver the vacant possession of the suit premises. It may be placed here that during pendency of the suit, upon death of the original plaintiff his legal representatives pursued the suit being substituted in his place. 4. Admitting the execution of the date of lease for a period of thirty years, the defendant inter alia pleaded that on the death of the father of the original plaintiff, who was the lessee, the original plaintiff being his son received the rent. Defendant asserted to have never defaulted in payment of the rent. It is stated that by acceptance of the rent, the right to raise any allegation regarding default of payment stood waived. It is further stated that the defendant had intimated the original plaintiff by notice in writing in exercising the option of renewal of the lease and thus lease stood automatically renewed with all those terms and conditions as those were before. It is further stated that the original plaintiff by accepting the rent after expiry of the period of lease has thereby accepted the renewal and as such the defendant is not liable to be evicted during that period of extended lease as claimed. The notice is said to be not in terms of section 106 of the T.P. Act. The defendant claims to be having statutory right of continuing in possession, enjoying the suit premises under same terms and conditions as contained in the lease deed dated 01.07.1953 by virtue of the provision of Burmah Shell (Acquisition of Undertaking in India) Act, 1976. 5. The defendant claims to be having statutory right of continuing in possession, enjoying the suit premises under same terms and conditions as contained in the lease deed dated 01.07.1953 by virtue of the provision of Burmah Shell (Acquisition of Undertaking in India) Act, 1976. 5. The trial court with the above rival case framed the following issues:- (i) Whether the defendant is a lessee under the plaintiff? (ii) Whether the defendant is liable to be evicted from the suit premises? (iii) Whether the plaintiff has cause of action to file the suit? (iv) Whether this court has jurisdiction to try the suit? (v) Whether the lease automatically stands renewed under section 5 of Burmah Shell Acquisition Act? (vi) Whether the suit is maintainable? (vii) To what relief the plaintiff is entitled? 6. Taking up issue nos. 1 and 5 together for decision, on evaluation of evidence and upon consideration of the documentary evidence let in by the parties answered those in favour of the plaintiff-respondent. The relevant portion of the findings are : “5.xx xx xx Hence, I am of the view that the defendant did not observe the terms and conditions of the lease deed and under no stretch of imagination, it can be held that the lease automatically stood renewed either by way of the acceptance by rent or on the strength of Bharat Petroleum Act. Thus, the issues are answered in favour of the plaintiff and against the defendant”. 7. Next going to answer issue nos. 2,3,4,6 and 7 together finally on appreciation of the rival case projected through evidence, the followings are the conclusion: “6. xx xx xx. Although, the defendant is liable to be evicted after the expiry of the lease but due to the non-compliance of the statutory notice under section 106 of the T.P. Act, the defendant cannot be evicted. Similarly, although the plaintiff has got the cause of action to file the suit, but due to the non-compliance of statutory notice under section 106 of the T.P. Act the suit is not maintainable. There is no evidence on record that the plaintiffs received the rent from the defendant after the expiry of the lease on protest. Similarly, although the plaintiff has got the cause of action to file the suit, but due to the non-compliance of statutory notice under section 106 of the T.P. Act the suit is not maintainable. There is no evidence on record that the plaintiffs received the rent from the defendant after the expiry of the lease on protest. From the above discussion of mine, I am of the view that the suit is not maintainable against the defendant in the absence of any notice under section 106 of the T.P. Act after the defendant became a tenant holding over on the expiry of the lease and the plaintiffs are also to entitled for any other relief.” The suit thus mainly upon the above findings on issue nos. 2,3,4,6 and 7 had been dismissed. 8. The unsuccessful plaintiffs (respondents) who are the respondents here then preferred the first appeal under section 96 of the Code which got numbered as T.A. No. 13 of 1990/28 of 1989. In the said appeal, the challenge was to the findings of the trial court on issue nos. 2,3,4,6 and 7 taken together for decision which had resulted in dismissal of the suit. The defendant (appellant) also filed another first appeal separately attacking the finding of the trial court on issue nos. 1 and 5 and that had been numbered as T.A. No. 15 of 1990/37 of 1989. Both the first appeals came to be heard together and stood disposed of by common judgment. 9. The lower appellate court ultimately concluded on all those issues at the end as under : “11. Hence, the order of the learned Munsif is hereby set aside without disturbing his finding under Issue Nos. 1 and 5. The suit of the appellants is maintainable. The respondent Bharat Petroleum Corporation Ltd. is directed to handover the vacant possession of the suit premises to the appellants within three months from the date of this order; failing which, the appellants are at liberty to take possession of the suit premises through lower court.” Accordingly, the appeal filed by the unsuccessful plaintiff i.e. T.A. No. 13 of 1990 has been allowed and the other appeal T.A. No. 15 of 1990 filed by the defendants sufferings from the finding on issue nos. 1 and 5 has been dismissed. 1 and 5 has been dismissed. Thus, finally by above disposal of both the appeals, the defendant firstly has suffered from the decree of eviction, being passed in favour of the plaintiffs and secondly has been aggrieved by the concurrent finding on issue nos. 1 and 5. So it filed two second appeals, the present is one S.A. No. 84 of 1991 and other one is S.A. No. 83 of 1991. Fact as it now stands is that the S.A. No. 83 of 1991 has been dismissed finding no substantial question of law to have arisen in the case. At this place, it may not be out of place to state that the memorandum of appeals of both the second appeals are identical even with coma and full stop. The substantial question of law as required under law to be mentioned in the memorandum of appeals are also identical in both as stated therein. So, now we are faced with the question as to when one has been dismissed, the subsequent appeal if can proceed for its disposal by answering the substantial question of law as formulated or not. 10. The scope of second appeal is quite different from that of a first appeal. In the latter it is not limited to any particular grounds of appeal such as provided in section 100 of the Code that the appeal shall lie if the High Court is satisfied that the case involves a substantial question of law so as to be accordingly heard on that or any other such substantial question of law which ought to have been framed but not when it remains open to the respondent to argue that there is no substantial question of law. The object of restricting the scope is thus clear and that was the object and reason in bringing the amendment to the prior provision which now stands in the Code by virtue of by Code of Civil Procedure Amendment Act, 1976 (1.2.1977). It is based on public policy expressed in the maxim ‘interest re publicae ut sit finis litium’-it concerns the state, there be an end to litigation. 11. As provided under section 100 of the Code, the second appeal lies to this Court from very decree passed in appeal by any subordinate court, if this Court is satisfied that the case involves a substantial question of law. 11. As provided under section 100 of the Code, the second appeal lies to this Court from very decree passed in appeal by any subordinate court, if this Court is satisfied that the case involves a substantial question of law. It is therefore required that in the memorandum of appeal, the appellants must state the substantial question/s of law involved in the appeal for consideration by this Court in arriving at the satisfaction in forming the said question and the appeal shall be heard on the question so formulated or as also thereafter on any such other so raised at any later stage and found to be so arising. In the memorandum of appeal, i.e. S.A. No. 83 of 1991 that has been dismissed, the same substantial question of law had been stated as it has been in this appeal. In course of hearing no other substantial question of law has been urged. 12. Fact remains that both the first appeals were heard together and disposed of by a common judgment, wherein defendant’s eviction has been ordered and their defence is automatic renewal or; creation of tenancy afresh as pleaded. The defence of automatic renewal as asserted has been turned down and the creation of tenancy afresh has been negated. So, now in order to proceed to answer the substantial question of law as formulated here, at first it falls for consideration as to what would be the legal impact of the dismissal of the S.A. No. 83 of 1991; whether fatal in the eye of law or not. Let me first of all very clear that under the law the effect of non-filing of an appeal against a decree is that it attains finality and thus the consequence would logically ensure when a decree in a connected suit is not appealed from. 13. In the case of Premier Tyres Limited vs. Kerala State Road Transport Corporation, 1993 (Supp) 2 SCC-181, a suit had been filed by the appellant for recovery of amount due upon respondent as per invoice price. Another suit had been filed by respondent for recovery of excess amount paid to the appellant which was to be paid as per D.G.S & D contract rate. Suits were tried together, the nature of suit being same and issues being common. Another suit had been filed by respondent for recovery of excess amount paid to the appellant which was to be paid as per D.G.S & D contract rate. Suits were tried together, the nature of suit being same and issues being common. The trial court found the respondent as liable to pay for the goods supplied to it by the appellant only on D.G.S. & D rate of contract. Even on this finding the claim of appellant was found substantiated for a part and suit was consequently decreed to that extent. The respondent’s suit was also decreed in part directing that in respect of supplies where the payment has been made in excess of D.G.S. & D. rate, the respondent was entitled to refund. The appellant filed appeal against the decree passed in the suit of the respondent but not against the part decree in its suit challenging that refusal of its part of the claim. 14. The Apex Court upon construction of the provision of section 11 of the Code as regards the appeal being barred by res judicata and upon survey of earlier decisions of the court laying down the law held at the ultimatum that the finality of finding recorded in the connected suit, due to non-filing of appeal, precludes the court from proceeding with appeal in other suit. In the case of Narayan Prabhu Venkateswara v. Narayan Prabhu Krishna Prabhu, 1977 (2) SCC 181 :- It was a suit for partition relating to properties under 72 items in total claimed as joint family property. The appellant claimed some items as his exclusive property. His case was accepted by the trial court in respect of all his claimed items except item no. 35 and part of item no.52 saying that it belonged to the third defendant. The High Court in appeal modified the decree to the extent that three forth share of item no. 4 to 72 except item no.35 and part of item 52 standing in the name of third defendant are partible, but not those assets coming after suit. The appellant had also filed a money suit against third defendant impleading all the brothers parties to the partition suit as parties. This was decided together with partition suit. The plaintiff-respondent had appealed against both the decrees. The appellant had also filed a money suit against third defendant impleading all the brothers parties to the partition suit as parties. This was decided together with partition suit. The plaintiff-respondent had appealed against both the decrees. The High Court’s judgments were found to be two separate ones given in one continuation but under separate headings followed by separate decrees. No leave was sought for in the case of appeal in money suit and it being sought for in the other one, leave had been granted. So objection was taken that the appeal was barred by res judicata. The court upheld the objection and dismissed the appeal on that ground. 15. In the case of Lonankutty vs. Thomman & another, 1976 (3) SCC 528 , the appellant filed one suit for perpetual injunction restraining them from taking and discharging water across his land both for agriculture and fishing. The trial court decreed the suit in part by refusing to grant the decree in respect of taking and discharging water for fishing but upheld it for agricultural purposes during agricultural seasons. The respondent’s suit for injunction restraining the appellant from trespassing on the bounds constructed by them and preventing the appellant from interfering with their right to take water from survey no. 673 and to discharge the water back through that land. They also claimed prescriptive right for fishing as well as for agricultural purpose was consequentially disposed of with the appellant’s suit and in accordance with that. Two appeals arose out of the suit of appellant at the behest of both sides and also two appeals from the other suit. All the four appeals stood disposed of confirming the common judgment of the trial court. No further appeal was filed by either side with reference to two appeals arising from the suit of the respondent. It is only the respondent who filed the second appeal arising out of the first appeal filed by the respondent in the suit of the appellant. The court held :- “14. Learned counsel appearing on behalf of the appellant contends that the High Court exceeded its jurisdiction in interfering with the findings of fact recorded by the Subordinate Judge and that it had overlooked certain fundamental principles of law while adjudicating upon the prescriptive claim made by the respondents. The court held :- “14. Learned counsel appearing on behalf of the appellant contends that the High Court exceeded its jurisdiction in interfering with the findings of fact recorded by the Subordinate Judge and that it had overlooked certain fundamental principles of law while adjudicating upon the prescriptive claim made by the respondents. It is unnecessary to go into these questions because another submission made on behalf of the appellant goes to the root of the matter and if that submission is accepted, the High Court's judgment would be impossible to sustain. The contention is that the issue as regards the respondents' right to the flow of water through the appellant's land for fishing purposes is barred by res judicata, and therefore, the High Court could not try and decide that issue in the Second Appeal which came before it. 15. This contention is well-founded and must be accepted. By section 11, Code of Civil Procedure, in so far as relevant, 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 and has been heard and finally decided. Explanation I to the section provides that 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. The only other aspect of the rule of res judicata which on the facts before us must be borne in mind is that it is not enough to constitute a matter res judicata that it was in issue in the former suit. It is further necessary that it must have been in issue directly and substantially. And a matter cannot be said to have been "directly and substantially" in issue in a suit unless it was alleged by one party and denied or admitted, either expressly or by necessary implication, by the other. xxx xxx xxx 21. In its remanding judgment dated July 8, 1964 by which the plea of res judicata was repelled, the High Court relied principally on the decision of this Court in Narhari v. Shanker. That decision is in our opinion distinguishable because in that case only one suit was filed giving rise to 2 appeals. A filed a suit against B and C which was decreed. That decision is in our opinion distinguishable because in that case only one suit was filed giving rise to 2 appeals. A filed a suit against B and C which was decreed. B and C preferred separate appeals which were allowed by a common judgment, but the appellate court drew 2 separate decrees. A preferred an appeal against one of the decrees only and after the period of limitation was over, he preferred an appeal against the other decree on insufficient court-fee. The High Court held that A should have filed 2 separate appeals and since one of the appeals was time barred, the appeal filed within time was barred by res judicata. This Court held that "there is no question of the application of the principle of res judicata", because "When there is only one suit, the question of res judicata does not arise at all". This was put on the ground 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." In our case, here were 2 suits and since the appellate decree in one of the suits had become final, the issues decided therein could not be reopened in the Second Appeal filed against the decree passed in an appeal arising out of another suit. This precisely is the ground on which Narhari's case was distinguished by this Court in Sheodan Singh v. Smt. Daryao Kunwar. It was held therein that where the trial court has decided 2 suits having common issues on the merits and there are two appeals therefrom the decision in one appeal will operate as res judicata in the other appeal. 22. The circumstance that the District Court disposed of the 4 appeals by a common judgment cannot affect the application of section 11 because as observed in Badri Narayan Singh v. Kamdeo Prasad Singh and Anr.,(1) even where 2 appeals arise out of one proceeding and even if the appeals are disposed of by a common judgment, the decision in that judgment may amount to 2 decisions and not to one if the subject-matter of each appeal is different. The case before us is stronger still for the application of section 11 because the appeals filed in the District Court arose not out of one proceeding but out of 2 different suits, one by the appellant and the other by the respondents. The failure of the respondents to challenge the decision of the District Court in so far as it pertained to their suit attracts the application of section 11 because to the extent to which the District Court decided issues arising in the respondents' suit against them, that decision would operate as res judicata since it was not appealed against. xxx xxx xxx” 16. At this juncture, without further adverting to the details of the case, it is sufficient to note that the substance issues and finding being common or substantially similar in the connected appeals heard and decided together by a common judgment by the first appellate court, dismissal of one second appeal (S.A. No. 83 of 1991) precludes the consideration in answering the substantial question of law as framed in this S.A. No. 84 of 1991 as it would again amount to a decision on merit leading to interfere with that very judgment of the first appeal in view of the settled position that the principle of res judicata applies to the judgment, which is common, and not to the decrees drawn on the basis of that common judgment. So, here when the judgment and decree of the suit had been called in question in two first appeals by both the plaintiffs and the defendant, one being aggrieved by refusal of grant of relief and the other by the finding in declining the specific claims as laid in the defence and when the lower appellate court has gone to decide by a common judgment, the sustainability of the findings of the trial court especially on two answers, one on issue nos. 1 and 5 and the other one for the other issues, filing of two second appeals being the requirement in law, the appellant has undoubtedly taken the right recourse to it because by both the decrees, the appellant had been affected and suffered being visited by adverse legal consequences. 1 and 5 and the other one for the other issues, filing of two second appeals being the requirement in law, the appellant has undoubtedly taken the right recourse to it because by both the decrees, the appellant had been affected and suffered being visited by adverse legal consequences. But now in view of the dismissal of the S.A. No. 83 of 1991 it has to be said that the common judgment leading to drawal of the decrees in the appeals arising out of that very suit has attained its finality since the appellant has not further challenged the said order of dismissal of S.A. No. 83 of 1991 in accordance with law. In that view of the matter, the appellant remains bound by the crucial conclusions of the first appellate court which have already attained finality in view of the dismissal of S.A. No.83 of 1991. For the above discussion and reasons, this Court thus holds that the substantial question of law as formulated in this second appeal does no more survive in the eye of law for consideration standing any more to be answered. On this ground the present second appeal having lost its existence in the eye of law thus hereby gets the legal burial. 17. In the result, the appeal stands dismissed and in the peculiar facts and circumstances without cost.