Kerala High Court

B.C.Abdurahiman vs P.V.Abdul Khader on 20 July, 2021

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
    TUESDAY, THE 20TH DAY OF JULY 2021 / 29TH ASHADHA, 1943
                        RSA NO. 1010 OF 2019


 Against the judgment and decree in A.S.No.85/2018 of the Additional
 District Court-IV, Kozhikode dtd.03.07.2019 arising from the judgment
    and decree in O.S.No.434/2013 of the first Additional Sub Court,
                         Kozhikode dtd.23.2.2018
APPELLANT/APPELLANT/1st DEFENDANT:

           B.C.ABDURAHIMAN,
           AGED 79 YEARS,
           S/O.AHAMMED,
           GENERAL SECRETARY,
           JAM IYYATHU ATHBAY NAKSHA BANDHIYA,
           REG. No.37/1983, KOZHIKODE, KIZHAKKOTH AMSOM,
           KODUVALLY DESOM, THAMARASSERY TALUK.
           BY ADVS.
           SRI.S.SREEKUMAR (SR.)
           SRI.P.MARTIN JOSE
           SRI.PRIJITH.P.
           SRI.THOMAS P.KURUVILLA
           SRI.AJAY BEN JOSE
           SRI.MANJUNATH MENON
           SRI.HARIKRISHNAN.S.


RESPONDENTS/RESPONDENTS/PLAINTIFFS 1 TO 6 & 8 AND
LEGAL HEIR OF 7th PLAINTIFF AND DEFENDANTS 2 TO 8:

    1      P.V.ABDUL KHADER,
           AGED 57 YEARS,
           S/O. AHAMMED KOYA THANGAL,
           RESIDING AT AKITHAZHAKATH HOUSE,
           KIZHAKKOTH AMSOM, KODUVALLY DESOM, THAMARASSERY
           TALUK, PIN - 673 572.
    2      SUHARA.C.,
           AGED 66 YEARS,
           D/O.C.SEETHI, CHERAYAKATTU HOUSE,
           5/976A, KATCHERI AMSOM DESOM, KOZHIKODE TALUK,
           PIN - 673502.
 R.S.A.No.1010 of 2019 &
Cross-objection No.44 of 2021

                                ..2..


     3      C.MARIYAM,
            AGED 60 YEARS,
            D/O.C.SEETHI, PLOT No.12,
            CHERROTTY NAGAR HOUSING COLONY,
            PUTHIYARA POST, KASABA AMSOM DESOM,
            KOZHIKODE TALUK, PIN - 673004.
     4      SALIKATH.C.,
            AGED 55 YEARS,
            D/O. SEETHI, CHERAYAKATTU HOUSE,
            KATCHERI AMSOM DESOM, KOZHIKODE TALUK,
            PIN - 673502.
     5      KHAMARUNNISA.C.,
            AGED 53 YEARS,
            D/O.SEETHI, CHERAYAKKATTU HOUSE, RESIDING AT 5/976A,
            KATCHERI AMSOM DESOM, KOZHIKODE TALUK, PIN -
            673502.
     6      HASHIM.C.,
            AGED 47 YEARS,
            S/O. SEETHI, CHERAYAKATTU HOUSE,
            KATCHERI AMSOM DESOM, KOZHIKODE TALUK,
            PIN - 673502.
     7      FIJUL KOMU,
            AGED 41 YEARS,
            S/O. A.KOMU,
            PLOT No.12, CHERROTTY NAGAR HOUSING COLONY,
            PUTHIYARA POST, KASABA AMSOM DESOM,
            KOZHIKODE TALUK, PIN - 673004.
     8      DR.JAYAFER SADIQUE,
            AGED 61 YEARS,
            CHERYAKATH, S/O.C.SEETHI,
            SWATHI HOUSE, POST FEROKE COLLEGE, KARINKALLAYI
            AMSOM AND DESOM,
            KOZHIKODE TALUK, PIN - 673 632.
     9      C.JASMINE,
            AGED 41 YEARS,
            W/O. SHAHUL HAMEED, THADATHIL HOUSE, ABDUREHIMAN
            NAGAR, AIRPORT ROAD, KOLAPPURAM, MALAPPURAM
            DISTRICT, PIN - 676 306.
 R.S.A.No.1010 of 2019 &
Cross-objection No.44 of 2021

                                ..3..


    10      P. V. KADEEJA BEEVI,
            AGED 70 YEARS,
            D/O. SAYYID HASSAN THANGAL, ADUKKATH,
            KANDIYIL HOUSE, KIZHAKOTH POST,
            KUZHIKOTH AMSOM DESOM, KODUVALLY, THAMARASSERY
            TALUK, PIN - 673 572.
    11      P. V. SUBAIDA,
            AGED 61 YEARS,
            D/O. SAYYID HASSAN THANGAL,
            MADAVOOR AMSOM DESOM, KODUVALLY, THAMARASSERY
            TALUK, PIN - 673 572.
    12      V. SAYYID ASHRAF,
            AGED 57 YEARS,
            S/O.SAYYID HASSAN THANGAL,
            SUNAM KACHERIKUNNU, THAMARASSERY TALUK,
            PIN - 673 574.
    13      P. V. BASHEER,
            AGED 55 YEARS,
            S/O. SAYYID HASSAN THANGAL, NEST,
            KAVILUMARUM, KIZHAKOTH AMSOM DESOM, KODUVALLY,
            THAMARASSERY TALUK, PIN - 673 572.
    14      P. V. SHAHUL HAMMED,
            AGED 54 YEARS,
            S/O. SAYYID HASSAN THANGAL, PUTHERI VEETTIL (H),
            KIZHAKOTH AMSOM DESOM, KODUVALLY, THAMARASSERY
            TALUK, PIN - 673 572.
    15      P. V. ABDUL RAZAK,
            AGED 66 YEARS,
            S/O. P.V.S.H. THANGL, EDAPPADAHIL HOUSE, KIZHAKKOTH
            AMSOM DESOM, KODUVALLY, THAMARASSERY TALUK,
            KOZHIKODE DISTRICT,
            PIN - 673 572.
            R1 to R4, R6 & R7 BY ADV.SRI.A.KOMU
            R1 to R4, R6 & R7 BY ADV.SRI.T.B.SIVAPRASAD
            R8 BY ADV.SRI.S.VAIDYANATHAN
            R9 TO R15 BY ADV.SRI.ANEESH JAMES
            R9 TO R15 BY ADV.SRI.P.K.SIDHARTHAN

      THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING
ON 14.07.2021 ALONG WITH Cross-objection No.44 of 2021, THE COURT
ON 20.07.2021 DELIVERED THE FOLLOWING:
 R.S.A.No.1010 of 2019 &
Cross-objection No.44 of 2021

                                  ..4..



            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
     TUESDAY, THE 20TH DAY OF JULY 2021 / 29TH ASHADHA, 1943
                       Cross Objection No.44 OF 2021
  Against the judgment and decree in A.S.No.85/2018 of the Additional
  District Court-IV, Kozhikode dtd.03.07.2019 arising from the Judgment
     and decree in O.S.No.434/2013 of the first Additional Sub Court,
                          Kozhikode dtd.23.2.2018
CROSS APPELLANT/8th RESPONDENT:

            DR.JAYAFAR SADIQUE CHERAYKKATT,
            AGED 61 YEARS,
            S/O. C.SEETHI, CHERYAKATH,
            S/O. C.SEETHI , SWATHI HOUSE,
            POST FEROKE COLLEGE, KARINKALLAYI AMSOM,
            AND DESOM, KOZHIKODE TALUK,PIN-673 632.
                 BY ADV SRI.S.VAIDYANATHAN


RESPONDENTS/APPELLANT & RESPONDENTS 1 TO 7 AND 9 TO 15:

     1      B.C.ABDURAHIMAN,
            S/O. AHAMMED,
            AGED 79 YEARS,
            GENERAL SECRETARY,
            JAM IYYATHU ATHBAY NAKSHA BANDHIYA,
            REG No.37/1983, KOZHIKODE , KIZHAKKOTH AMSOM,
            KODUVALLY DESOM, THAMARASSERY TALUK.
     2      P.V.ABDUL KHADER,
            AGED 57 YEARS,
            S/O. AHAMMED KOYA THANGAL,
            RESIDING AT AKITHAZHAKATH HOUSE,
            KIZHAKKOTH AMSOM, KODUVALLY DESOM, THAMARASSERY
            TALUK,PIN-673 572.
     3      SUHARA.C.,
            AGED 66 YEARS,
            D/O.C.SEETHI, CHERAYAKATTU HOUSE,
            5/976A, KATCHERI AMSOM, DESOM,
            KOZHIKODE TALUK,PIN-673 502.
 R.S.A.No.1010 of 2019 &
Cross-objection No.44 of 2021

                                ..5..


     4      C.MARIYAM,
            AGED 60 YEARS,
            D/O. C.SEETHI, PLOT No.12,
            CHERROTTY NAGAR HOUSING COLONY,
            PUTHIYARA POST, KASABA AMSOM, DESOM, KOZHIKODE
            TALUK, PIN-673 004.
     5      SALIKATH.C.,
            AGED 55 YEARS,
            D/O. SEETHI, CHERAYAKATTU HOUSE, KATCHERI AMSOM ,
            DESOM, KOZHIKODE TALUK, PIN-673 502.
     6      KHAMARUNNISA.C.,
            AGED 53 YEARS,
            D/O.C.SEETHI, CHERAYAKKATTU HOUSE,
            RESIDING AT 5/976A,
            KATCHERI AMSOM, DESOM, KOZHIKODE TALUK,
            PIN-673 502.
     7      HASHIM.C.,
            AGED 47 YEARS,
            S/O.SEETHI, CHERAYAKATTU HOUSE,
            KATCHERI AMSOM, DESOM, KOZHIKODE TALUK,
            PIN-673 502.
     8      FIJUL KOMU,
            AGED 41 YEARS,
            S/O. A.KOMU, PLOT No.12,
            CHERROTTY NAGAR HOUSING COLONY,
            PUTHIYARA POST, KASABA AMSOM, DESOM, KOZHIKODE
            TALUK, PIN-673 004.
     9      C.JASMINE,
            AGED 41 YEARS,
            W/O.SHAHUL HAMEED,
            THADATHIL HOUSE, ABDUREHIMAN NAGAR,
            AIRPORT ROAD, KOLAPPURAM,
            MALAPPURAM DISTRICT,PIN-676 306.
    10      P.V.KADEEJA BEEVI,
            AGED 70 YEARS,
            D/O. SAYYID HASSAN THANGAL, ADUKKATH,
            KANDIYIL HOUSE, KIZHAKOTH POST,
            KUZHIKOTH AMSOM, DESOM, KODUVALLY, THAMARASSERY
            TALUK,PIN-673 572.
 R.S.A.No.1010 of 2019 &
Cross-objection No.44 of 2021

                                  ..6..


    11      P.V.SUBAIDA,
            AGED 61 YEARS,
            D/O. SAYYID HASSAN THANGAL,
            MADAVOOR AMSOM, DESOM,
            KODUVALLY, THAMARASSERY TALUK, PIN-673 572.
    12      P.V.SAYYID ASHRAF,
            AGED 57 YEARS,
            S/O. SAYYID HASSAN THANGAL, 'SANAM', KACHERIKUNNU,
            KIZHAKKOTH P.O., KODUVALLY, THAMARASSERY TALUK,PIN-
            673 574.
    13      P.V.BASHEER,
            AGED 55 YEARS,
            S/O. SAYYID HASSAN THANGAL, NEST,
            KAVILUMMARAM, KIZHAKKOTH AMSOM, DESOM, KODUVALLY,
            THAMARASSERY TALUK,PIN-673 572.
    14      P.V.SHAHUL HAMEED,
            AGED 54 YEARS,
            S/O. SAYYID HASSAN THANGAL, PUTHEN VEETTIL(H),
            KIZHAKKOTH AMSOM, DESOM, KODUVALLY, THAMARASSERY
            TALUK,PIN-673 572.
    15      P.V.ABDUL RAZAK,
            AGED 66 YEARS,
            S/O. P.V.S.H.THANGAL, EDAPPADAHIL HOUSE, KIZHAKKOTH
            AMSOM, DESOM, KODUVALLY, THAMARASSERY TALUK,
            KOZHIKODE DISTRICT, PIN-673 572.
            R1 BY ADVS.SRI.S.SREEKUMAR (SR.)
                       SRI.P.MARTIN JOSE
                       SRI.PRIJITH.P.
                       SRI.THOMAS P.KURUVILLA
                       SRI.AJAY BEN JOSE
                       SRI.MANJUNATH MENON
                       SRI.HARIKRISHNAN.S.

            R2 TO R5, R7 & R8 BY ADVS.SRI.A.KOMU
                                SRI.T.B.SIVAPRASAD

            R9 TO R15 BY ADVS.SRI.ANEESH JAMES
                             SRI.P.K.SIDHARTHAN


      THIS CROSS OBJECTION HAVING COME UP FOR HEARING ON
14.07.2021 ALONG WITH RSA.1010/2019, THE COURT ON 20.07.2021
DELIVERED THE FOLLOWING:
 R.S.A.No.1010 of 2019 &
Cross-objection No.44 of 2021

                                    ..7..


                                                                        [CR]
                            JUDGMENT

The plaintiffs 1 to 8 filed a suit as

O.S.No.434/2013 of the first Additional Sub Court,

Kozhikode (hereinafter referred to as 'the trial court')

for partition of the plaint 'C' schedule property and the

separate possession thereof. The trial court passed a

preliminary judgment and decree on 23.2.2018. The

1st defendant challenged the preliminary judgment and

decree in A.S.No.85/2018 of the Additional District

Court-IV, Kozhikode (hereinafter referred to as 'the

first appellate court'). The first appellate court

dismissed the appeal by judgment and decree dated

3.7.2019. Hence, this Regular Second Appeal by the

1st defendant. The respondents in this appeal are the

plaintiffs 1 to 6, 8, legal heir of the 7 th plaintiff and R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..8..

defendants 2 to 8 respectively. The parties are

hereinafter referred to as 'the plaintiff' and 'the

defendant' according to their status in the trial court

unless otherwise stated.

2. The plaint 'A' schedule is the genealogy of

the parties. The plaint 'B' schedule property popularly

known as 'Chunkathara Paramba' is having an extent

of 2 acres 91½ cents and the plaint 'C' schedule is

having an extent of 2 acres 36.38 cents is a part of

the plaint 'B' schedule property. The plaint 'D' schedule

is having an extent of 56.62 cents of land with a

Dargah and is also a part of plaint 'B' schedule

property. It was contended that the plaintiffs are the

absolute owners of the plaint schedule property having

obtained the release of the rights of the other co-

owners. Thus, the plaintiffs are entitled to 2016/2520 R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..9..

shares and the 1st defendant is entitled to 504/2520

shares in the plaint 'C' schedule property. The question

as to whether the plaint 'D' schedule is a wakf or not

is excluded from partition for the reason that the

matter is pending adjudication before the court.

3. The 1st defendant filed written statement

contending that the property has been used from time

immemorial as a burial ground and for devotional

purposes of the members of the organization. The 1 st

defendant claimed the customary right to bury the

dead and to conduct religious services in the property

as per custom prevalent in the community.

4. There was another suit as O.S.No.535/2010

filed by the 9th respondent, namely, C.Jasmine for

declaration and consequential injunction. It was

contended that the plaint schedule property originally R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..10..

belonged to Sayed Ahammed Kutty Thangal, father of

the maternal grandfather of the plaintiff and the 2 nd

defendant in that suit. It was further contended in that

suit that often religious discourses are scheduled

inside the Dargah in the plaint schedule property to

enlighten the followers and every year 'Andunercha' is

held in the plaint schedule property to commemorate

the death anniversary of Sayed Ahammed Kutty

Thangal. The 9th respondent claimed that she is

entitled to 2/168 shares plus 1/24 shares over the

plaint schedule property in the said suit.

5. Both the suits were tried together and

O.S.No.434/2013 was taken as the leading case. On

the side of the plaintiffs, the 6th plaintiff in

O.S.No.434/2013 was examined as PW1 and marked

Exts.A1 to A24. The 1st defendant in O.S.No.434/2013 R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..11..

was examined as DW1 and another witness as DW2.

The plaintiff in O.S.No.535/2010 was examined as

DW3 and marked Exts.B1 to B30.

6. By judgment dated 23.2.2018 the trial court

held that the 1st defendant is a co-owner of the

property and the plaint 'C' schedule property is

partible. Consequently, preliminary judgment and

decree was passed in O.S.No.434/2013 holding that

the plaint 'C' schedule property shall be divided by

metes and bounds into 2520 shares of which 2016

share has to be allotted to the plaintiffs jointly and

504 shares to the 1st defendant. The trial court

dismissed O.S.No.535/2010 accordingly.

7. The 1st defendant filed A.S.No.85/2018

challenging the judgment and decree in

O.S.No.434/2013 before the District Court, Kozhikode. R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..12..

During the pendency of the suit, the original 7 th

plaintiff died and his legal representative (8 th

respondent) filed a cross-objection in the first appeal.

The first appellate court by judgment dated 3.7.2019

concurred with the finding of the trial court in

O.S.No.434/2013 and dismissed A.S.No.85/2018. The

first appellate court also held that the cross-objection

is not maintainable since the legal heir of the 7 th

plaintiff cannot take a stand contrary to the contention

of the 7th plaintiff.

8. Being aggrieved by the judgment and decree

of the first appellate court and that of the trial court to

the extent it went against the appellant, this Regular

Second Appeal is filed. When the appeal came up for

admission, the following substantial questions of law

were formulated for consideration on 04.11.2019 and R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..13..

issued notice to the respondents:-

"(i) When it is proved that the members of the organization "Naksha Bandhiya Thareekath" has a customary right to bury the dead, whether the Courts below were justified in holding that plaint 'C' schedule, which is part of plaint 'B' schedule, as partible?

(ii) Whether the findings of Court below that non-mentioning of devotional rights and use of plaint 'B' schedule as khabarsthan in Exts.A1 and B1 is fatal on the basis of the admission made by 1st plaintiff in Ext.A17 and Ext.B2 and also in the oral evidence as PW1?

(iii) The existence of the Dargah, in which the 34th Imam was buried and the admitted fact that all the members of the family of the Imam and followers of the organization are buried in the plaint 'B' schedule, whether the Courts below were justified in holding that there was no evidence to prove that plaint 'B' schedule property is a Khabarsthan?"

R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..14..

9. Pursuant to the notice all the respondents

entered appearance. It was pointed out that

challenging the common judgment and decree passed

in O.S.No.534/2010 and O.S.No.434/2013, two more

appeals are pending before the first appellate court as

A.S.No.201/2018 and A.S.No.12/2019 respectively. It

was submitted that the first appellate court decided

A.S.No.85/2018 without deciding all the appeals

together. Hence, an additional substantial question of

law was heard on 14.7.2021 touching the legal

consequences in deciding one of the appeals when two

more appeals arising from the common judgment

were pending before the first appellate court.

10. Heard Sri.S.Sreekumar, the learned Senior

Counsel for the appellant and Sri.A.Komu, the learned

counsel for the respondents 1 to 4, 6 and 7. R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..15..

11. The learned Senior Counsel for the appellant

submitted that the first appellate court refused to hear

the appeal filed by the 2nd defendant as

A.S.No.201/2018 and defendants 3 to 8 as

A.S.No.12/2019 along with A.S.No.85/2018 filed by

the 1st defendant which were pending before the first

appellate court. The learned Senior Counsel further

submitted that the first appellate court disposed of

A.S.No.85/2018 and its cross-objection by a common

judgment dated 3.7.2019. It was submitted that the

procedure adopted by the first appellate court is illegal

and the decree and judgment are liable to be set aside

without going into the merits of the case so as to

enable the first appellate court to dispose of all the

appeals together.

R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..16..

12. Per contra, the learned counsel for the

contesting respondents 1 to 4, 6 and 7 submitted that

having failed or neglected or concertedly avoided joint

hearing of all the appeals together against the

common judgment and decree in OS.No.535/2010 and

O.S.No.434/2013, the cause of the appellants was

permanently sealed and foreclosed. The learned

counsel further contended that the first appellate court

was confronted with three appeals from two different

suits between the same parties in which the issues

were common. However, one of the appeals was heard

and dismissed on merits. It was therefore contended

that the principles of res judicata became operational

with regard to the two other appeals pending before

the first appellate court in view of the decisions

rendered by the Apex Court, namely, firstly, R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..17..

Lonankutty v. Thomman [(1976) 3 SCC 528],

secondly, Narayana Prabhu Venkateswara Prabhu

v. Narayana Prabhu Krishna Prabhu [(1977) 2 SCC

18] and thirdly, Premier Tyres Ltd. v. KSRTC [1993

Supp. (2) SCC 146].

13. All the two suits were decided by the learned

Sub Judge by a common judgment and decree dated

23.2.2018 pursuant to which two separate decrees

were drawn. O.S.No.434/2013 was decreed with costs

and O.S.No.535/2010 was dismissed. Dismissal of

O.S.No.535/2010 was based on the ground that the

defendants failed to prove that the plaint 'C' schedule

property is part and parcel of plaint 'D' schedule

property (Dargah property) and it is used for

devotional and religious purposes attached to the said

Dargah as a burial ground. O.S.No.434/2013 was R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..18..

decreed on the ground that the plaintiffs successfully

proved co-ownership right over the entire plaint 'B'

schedule property and that the plaint 'C' schedule

property is available for partition.

14. It is a fact that the trial court tried both the

suits together and determined them by way of one

common judgment but two decrees on the same day

holding that plaint 'B' and 'C' schedule properties are

partible. The respondents appealed against both the

decrees before the first appellate court and one of the

appeals was decided by the first appellate court

without considering the other appeals. Instead of

passing consolidation order, the first appellate court

decided one of the appeals to the detriment of the

appellant. Consolidation orders are passed by virtue of

the bestowal of inherent powers on the courts by R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..19..

Section 151 of the C.P.C. Adverting to Sri Gangai

Vinayagar Temple and another v. Meenakshi

Ammal & others [(2015) 3 SCC 624], the learned

Senior Counsel for the appellant contended that in the

instance of suits in which common issues have been

framed by the trial court and a common trial has been

conducted, the appeals preferred by the aggrieved

shall be heard together which springs up from the

general principles of law and public policy.

15. The verdict of the Apex Court in Sri Gangai

Vinayagar Temple's case (supra) would inter alia

show that the appellate court is duty bound to hear all

the appeals together. It is highly technical on the part

of the respondents to contend that a separate

application for the said purpose is required when it is

brought to the notice of the first appellate court that a R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..20..

common judgment has been delivered in cases in

which consolidation orders have specifically been

passed by the trial court. It is a fact that two more

appeals were pending when A.S.No.85/2018 was

decided by the appellate court challenging the

judgment and decree in O.S.No.434/2013. In

paragraph 27 of the judgment in Sri Gangai

Vinayagar Temple's case (supra), the Apex Court

held as follows:-

"27. Procedural norms, technicalities and processual law evolve after years of empirical experience, and to ignore them or give them short shrift inevitably defeats justice. Where a common judgment has been delivered in cases in which consolidation orders have specifically been passed, we think it irresistible that the filing of a single appeal leads to the entire dispute becoming sub judice once again.

Consolidation orders are passed by virtue R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..21..

of the bestowal of inherent powers on the courts by Section 151 of the CPC, as clarified by this Court in Chitivalasa Jute Mills v. Jaypee Rewa Cement [(2004) 3 SCC 85]. In the instance of suits in which common Issues have been framed and a common trial has been conducted, the losing party must file appeals in respect of all adverse decrees founded even on partially adverse or contrary speaking judgments. While so opining we do not intend to whittle down the principle that the appeals are not expected to be filed against every inconvenient or disagreeable or unpropitious or unfavourable finding or observation contained in a judgment, but that this can be done by way of cross- objections if the occasion arises. The decree not assailed thereupon metamorphoses into the character of a 'former suit'".

16. Before this Court in second appeal, the

learned counsel for the contesting respondents R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..22..

promptly pressed the preliminary objection of res

judicata contending that the decree passed by the first

appellate court in A.S.No.85/2018 arising from the

common judgment debars from proceeding with the

other appeals pending before the first appellate court

challenging the common judgment and decree. This

Court is not impressed with that contention primarily

keeping the case of Lonankutty's case (supra) and

Narayana Prabhu Venkateswara Prabhu's case

(supra) SCC pg.188, paragraph 18, "the expression

'former suit', according to Explanation I of Section 11

of the Civil Procedure Code, makes it clear that, if a

decision is given before the institution of the

proceeding which is sought to be barred by res

judicata, and that decision is allowed to become final

or becomes final by operation of law, a bar of res R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..23..

judicata would emerge."

17. In the case at hand, the first appellate court

decided one of the appeals when the other appeals

from the common judgment and decree were pending

consideration. This Regular Second Appeal is filed

challenging the judgment and decree in

A.S.No.85/2018. Hence, the question of finality

doesn't arise for consideration. It is illegal to decide

one of the appeals when common judgment and

decree is under challenge and different appeals are

filed challenging the common judgment and decree.

The principles of res judicata is not applicable in the

case at hand so far as the appellant is concerned.

Those appeals were pending before the first appellate

court when O.S.No.434/2013 was decided. On the

issue of applicability of res judicata in cases where two R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..24..

or more suits have been disposed of by one common

judgment but separate decrees, and where the decree

in one suit has been appealed against but not against

the others, the principle of res judicata would be

applicable. The legal position is different in this case.

18. As already noted above, the first appellate

court went wrong in deciding one of the appeals

without consolidating together all the appeals arising

from a common judgment delivered in cases in which

consolidation orders have specifically been passed.

Hence, without going into the merits of the case, the

judgment and decree of the first appellate court are

liable to be set aside.

19. In this connection, it is appropriate to refer

to the principle laid down by this Court in Joy v.

Regional Transport Authority [1998 (2) KLT 994] R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..25..

wherein this Court highlighted the consistency in

rendering judgment as hereunder:-

"3. Judicial discipline demands consistency in rendering judgments. A Judicial Officer may hold different views on various aspects. A Judicial Officer may err and pass contradictory orders inadvertently. But once it is brought to the knowledge of the Judicial Officer, he is duty bound to keep track of consistency. Inconsistent orders passed by a judicial officer almost in the same fact situation, and that too on the same day, would give rise to complaint of discriminatory treatment, which will undermine the people's faith in judicial system and the rule of law. It will cause resentment and anguish and make an imprint in the mind of the litigant that he has been discriminated. A Judicial Officer may err and pass illegal orders, but he shall not err in consistency. He should be consistent even in illegality."

20. Judged by the above standards, this Court is

of the view that when two more appeals had already R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

..26..

been admitted by the first appellate court challenging

the very same common judgment and decree, the first

appellate court was not justified in deciding one of the

appeals. In Radhakrishna Panicker v. State of

Kerala [2001 KHC 773] a Division Bench of this Court

in paragraph 2 of the judgment held as under:-

"There may be situation where pendency of the Original Petition might not have been brought to the knowledge of the learned single Judge inadvertently. It is for fitness of things that the parties in the litigation should bring to the notice of the Judge of the pendency of the similar matters and therefore contradictory judgments would be avoided as we see in the present case. We are of the view as and when the pendency of the O.P. concerning the same issue is brought to the knowledge of the Court the Court shall post all the cases together and hear the matter. In this case when O.P. concerning identical issue has already been admitted and pending consideration learned Judge was not justified in dismissing the O.P.

R.S.A.No.1010 of 2019 & Cross-objection No.44 of 2021

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at the admission stage by a detailed order."

21. On the foregoing analysis, the impugned

judgment and decree are set aside. The first appellate

court is directed to dispose of A.S.No.85/2018 and its

Cross Appeal, A.S.No.201/2018 and A.S.No.12/2019

together afresh uninfluenced by the impugned

judgment and decree in accordance with law within a

period of three months from the date of receipt of a

copy of this judgment. The Principal District Judge,

Kozhikode is directed to post all the appeals together