TMI Blog1976 (4) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... o permit collection of water on the land, almost to the point of submerging it. The prawns enter the land with the high tide, they breed and multiply on the land, and the water while receding leaves the prawns behind. The appellant then catches them, presumably under a licence from the Government of Kerala. Survey Nos. 672, 677, 655/4 and 670 which sprawl on all sides of survey No. 673 belong to the respondents : Thomman and his mother Annam. We are concerned with the prescriptive rights claimed by them in respect of survey No. 672 which is situated towards the north-east of survey No. 673. Survey No. 672 is almost landlocked and between it and the river on the south stands the vast expanse of survey No. 673 belonging to the appellant. Prawns have an export value and catching them is so much more profitable than growing food-crops. But the respondent's land being land-locked, they have no direct access to the river on the west or the south. They cannot therefore do any fishing operations because, for prawn- fishing it is necessary that the river-water must enter their land, and collect on it so that after the prawns have bred, the water can be released back to the river. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The suit filed by the respondents (No. 5 of 1957) was disposed of by the learned Munsiff by a judgment dated October 11, 1958. Consistently with the decree passed in the appellant's suit, he dismissed the respondent's suit in so far as it related to the fishing rights claimed by them but decreed it to the extent of the right claimed by them in regard to agricultural user. Briefly, the result of the decrees passed in the two suits was that the respondents could take water from the appellant's land and discharge water back through that land for agricultural purposes only and during the agricultural season which begins on the 15th Meenam and ends on 15th Vrischigam of each year. From the decree passed in the appellant's suit, two cross-appeals were filed in the court of the learned Subordinate Judge, Ernakulam, the appeal filed by the appellant being A. S. 64 of 1956 while that filed by the respondents being A. S. 66 of 1958. Similarly, two cross- appeals were filed by the parties as against the decree passed by the trial court in the suit filed by the respondents, A. S. 1 of 1959 being the one filed by the respondents while A. S. 17 of 1959 being the one filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of resjudicata was plausible. But very rightly, he proceeded to dispose of the matter on merits as directed by the High Court. By his judgment dated December 22, 1964 he dismissed A. S. 66 of 1958 which was filed by the respondents against the decree passed by the Trial Court in the appellant's suit. Thus the view taken in the judgment before remand stood confirmed after remand on a further consideration of evidence in the case. Respondents filed Second Appeal No. 1190 of 1965 against the Subordinate Judge's judgment, which was allowed by a Division Bench of the Kerala High Court on April 8, 1971. The High Court held that the respondents had a right to the flow of water through the appellant's land not only for the purposes of agriculture but for the purposes of prawn-fishing also. Appellant raised once again the plea of res judicata but it was rejected on the ground, rightly, that the plea was concluded by its remanding judgment. In the result, the High Court dismissed the appellant's suit (No. 666 of 1964), giving rise to this appeal by special leave. Learned counsel appearing on behalf of the appellant contends that the High Court exceeded its juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the defendants have trespassed into the north-eastern boundary of the plaint schedule property and have begun construction of a bund there as alleged in para 3 of the plaint ? 2. How long has the bund on the western boundary of S. No. 672 been in existence? 3. Whether defendants 1 to 3 have acquired any right of easement over the plaint schedule properties as contended for in paras 4 and 5 of the written statement? 4. Whether the defendants enjoyed such a right against schedule properties as owners and occupiers of S. Nos. 672 and 667 openly as of right and continuously and for the prescribed period? 5. Whether defendants 1 to 3 have no out-let for water from S. Nos. 667, 672, 655, 670 and 671 other than through the plaint schedule properties? 6. Whether the right to let in and let out water for purpose of prawn-fishing operation is a right of easement capable of being acquired in law? 7. Whether the plaintiff is entitled to the injunction prayed for? In the respondents' suit the following issues were framed: 1. Whether the plaintiffs have got any easement right to let in and let out water from the plaint A schedule properties through B schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was therefore one in a former suit within the meaning of section 11, Explanation 1, Civil Procedure Code. Accordingly, the High Court was in error in deciding an issue which was heard and finally decided in a former suit and was therefore barred by res judicata. The High Court in its judgment dated April 8, 1971 assumed wrongly that suit No. 666 of 1954 filed by the appellant and suit No. 5 of 1954 filed by the respondents were originally disposed of by a common judgment . They were not. The appellant's suit was disposed of by a judgment dated September 20, 1957 while the respondents' suit was disposed of by a judgment dated October 11, 1958. Naturally, 2 separate decrees were drawn in the 2 suits and those decrees gave rise to 4 cross-appeals, 2 from each suit. 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. B and C preferred separate appeals which were allowed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is necessary to add that the decision rendered by the High Court by its judgment of remand dated July 8, 1964 in Second Appeal No. 1149 of 1960 that the contention raised by the respondents is not barred by res judicata can be re- opened in this appeal against the final judgment of the High Court. The decision of this Court in Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr.,(2) is directly in point on this question. Relying upon certain decisions of the Privy Council it was held by this Court that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken, could be challenged in an appeal from the final decree or order. Accordingly, the circumstance that the remanding judgment of the High Court was not appealed against, assuming that an appeal lay therefrom, cannot preclude the appellant from challenging the correctness of the view taken by the High Court in that judgment. In view of our decision that the contention raised by the respondents is barred by res judicata, it must be held that the High Court was in error in allowing the respondents' appeal and accepting his contention. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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