JUDGMENT Henry Richards, Kt. C.J. and Banerji, J.
1. A preliminary objection has been taken to the hearing of this appeal on the ground of res judicata. It is necessary shortly to state the facts in order that it may be understood how the question arises. Two suits were instituted in the court of the Subordinate Judge of Gorakhpur apparently on the same day. The plaintiff in both the suits was mahant Udai Bhan Pargas alias Angan Das. In the present suit Anant Das was the only defendant. In the other suit the defendants were (1) Sundar Das and (2) Anant Das, the appellant in this appeal. In both suits the plaintiff claimed a declaration that he was the mahant of a certain math. In the suit in which both Sundar Das and Anant Das were defendants the claim was as follows:
The plaintiff's title and the defendants' want of title may be established and it may be declared that the plaintiff is entitled to receive the papers and the box aforesaid. The box and the papers detailed below may be awarded to the plaintiff.
In the earlier part of the plaint the plaintiff stated "but as both the defendants deny the plaintiff's title, he brings this claim against both the defendants in respect of a box which contains papers, documents, etc.,... and which Sundar Das, the defendant, has taken back after the institution of this suit without the plaintiff's knowledge.
2. Both the suits were tried together in the court below and amongst the issues framed were the following: "Is the plaintiff chela of Karan Das and was he appointed mahant? Has the plaintitf a right to sue? What is the custom relating to the mahantship, and was the plaintiff appointed mahant according to that custom?" These issues were decided in favour of the plaintiff. The result was that in the suit in which both Sundar Das and Anant Das were defendants, there was a decree against both the defendants, declaring the plaintiff's title, after the issues to which we have referred had been decided. From the decree in that suit Sundar Das alone appealed, but Anant Das did not prefer an appeal. The appeal of Sundar Das abated by reason of the fact that after his death no steps were taken to bring his representatives on the record within the time allowed by law. Anant Das, however, did appeal in the suit out of which the present appeal arises, which, as we have already mentioned, was decided at the same time as the other suit, and by one and the same judgment. We must here mention that, although both suits were disposed of by the same judgment, separate decrees were drawn up in each case.
3. The respondent now by way of a preliminary objection contends that the appeal of Sundar Das having abated and Anant Das not having appealed from the decree in that suit, there is now a binding decree against him unappealed from. The appellant Anant Das, on the other hand, contends that Section 11 of the Code of Civil Procedure, which deals with res judicata, does not apply to the present case, because the two suits were tried together and disposed of by one judgment on the same day, and secondly, because in any event, in the suit in which both Sundar Das and Anant Das were defendants, the real question was the title to the particular property mentioned in the plaint in that suit, and that therefore the decree which was given in that suit cannot be said to operate as res judicata on the question of the title to the property in dispute in the suit out of which the present appeal arises.
4. Section 11 of the Code is as follows: "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, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit, or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court." In explanation (1) "former suit" is defined as denoting a suit which has been decided prior to the suit in question, whether or not it was instituted prior thereto. It cannot for one moment be contended that the decree in the suit in which both Sundar Das and Anant Das were defendants has not now become final as against Anant Das. Beyond all question the issue as to whether the plaintiff was or was not the mahant was decided in that suit and we are now called upon to decide the same issue in the present appeal. The result might be that if we were now to hear the appeal, there would be one binding decree declaring that Udai Bhan was the mahant, and another equally binding decree declaring that he was not, both decrees being in suits to which Anant Das was a party. It seems to us that it was to prevent anomalies of this description (amongst other reasons) that Section 11 was enacted. No doubt it is somewhat unfortunate in the present case that the appellant is unable to have the question decided by this Court by reason merely of the fact that he did not appeal against the decree in the other suit. This view of the rule of res judicata was taken in the Full Bench case of Zaharia v. Debia (1), a decision which is of course binding on us.
5. We accordingly dismiss the appeal with costs.