TMI Blog1994 (4) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... andidate stands, he cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that finding is incorrect. Thus accept the preliminary objection and dismiss the appeal with costs. - Civil Appeal No. 563 of 1960 - - - Dated:- 22-9-1961 - DAYAL, RAGHUBAR, GAJENDRAGADKAR, P.B., SUBBARAO, K., HIDAYATULLAH, M. AND SHAH, J.C., JJ. For the Appellant : J. C. Sinha, D. P. Singh, M. K. Ramamurthi, R. K. Garg and S. C. Agarwala For the Respondent : B. C. Ohosh and R. C. Datta,. Udaipratap Singh and P. C. Agarwala JUDGMENT RAGHUBAR DAYAL, J. Badri Narain Singh, the appellant, and four other persons including Kam Deo Prasad, respondents, were candidates to the Bihar Legislative Assembly during the last general election held in 1957. Two of those candidates withdrew before the relevant date. The appellant secured the largest number of votes and was declared elected on March 14, 1957. Respondent No. 2 secured larger number of votes than Kam Deo Prasad, respondent No. 1, who filed an election petition under ss. 80 and 81 of the Representation of the People Act, 1951 (Act XLIII of 1951) challenging the ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contested it, namely, the petitioner and the two respondents. The two respondents were disqualified for being chosen as, and for being, members of Legislative Assembly or Legislative Council of the State, and, therefore, their nomination papers were not validly accepted. If their nomination papers are rejected, and it cannot but be rejected, the only person left in the field was the petitioner Kam Deo Prasad Singh, and, therefore, be must be declared to be duly elected. In the result, Election Appeal No. 7 of 1958 is dismissed, and Election Appeal No. 8 of 1958 is allowed, and Kam Deo Prasad Singh is declared to be duly elected to Bihar Legislative Assembly from the Sarnath State Assembly Constituency in the district of Santal Parganas. As a result of this order, separate decrees were As a result of this order, separate decrees were As a result of this order, separate decrees were prepared in the two appeals. Decree in Election Appeal No. 7 said, 'It is ordered and decreed that this appeal be and the same is hereby dismissed'. The decree in appeal No. 8 said, 'It is ordered and decreed that this appeal be and the same is hereby allowed and Kam Deo P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble on facts and is with respect to the interpretation of s. 11 of the Code of Civil Procedure. In the suit, in that case, the plaintiffs claimed possession over 2/3rds of the plot No. 214. They claimed 1/3rd which was in the possession of' one set of defendants, namely, defendants ,Nos. 1 to 4 and the other 1/3rd was in possession of another set of defendants, namely, defendants Nos. 5 to 8. Each set of defendants claimed that they were entitled to the land in their possession as their share of the family property and denied the allegations of the plaintiffs that the senior branch was under custom entitled to exclusive possession of the plot which was Inamland. The suit was decreed by the trial Court. Each set of defendants then filed an appeal claiming 1/3rd of the plot. The first appellate Court allowed both the appeals and dismissed the plaintiffs suit by one judgment and ordered a copy of the judgment to be placed on the file of the other connected appeal. Naturally, it decided the one point of contention common to both the appeals, namely, that the senior branch was not entitled to exclusive possession of the plot. This was the finding in each of the appeals. The plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up. This does not mean that whenever there be more than one appeal arising out of one suit, only one appeal is competent against the order in Any. of those appeals irrespective of the fact whether the issues for decision in those appeals were all common or some were common and others raised different points for determination. The existence of one finding and one decision mentioned in this observation simply contemplates the presence of common points in all the appeals and the absence of any different point in those appeals, and consequently of one decision on those common points in all the appeals. This Court, further observed at page 758: The question of res judicata arises only when these 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was therefore that even though the High Court did not agree with the Election Tribunal about the appellant's committing a corrupt practice, it confirmed the setting aside of his election on the ground that he held an office of profit. The finding about his holding an office of profit served the purpose of both the appeals, but merely because of this the decision of the High Court in each appeal cannot be said to be one decision. The High Court came to two decisions. It came to one decision in respect of the invalidity of the appellants election in Appeal No. 7. It came to another decision in Appeal No. 8 with respect to the justification of the claim of respondent No. 1 to be declared as a duly elected candidate, a decision which had to follow the decision that the election of the appellant was invalid and also the finding that respondent No. 2, as Ghatwal, was not a properly nominated candidate. We are therefore of opinion that so long as the order in the appellant's appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated cand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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