CHAUDHURY RAHIM DAD KHAN, C. J.-Abdullah appellant instituted a suit in the Court of Additional Sub-Judge, Muzaffarabad on 17-7-1969 for declaration of his possessory title over land measuring 7 kanals 4 marlas, under Survey No. 297 and No. 300, situate in village Katheeli, Tehsil and District Muzaffarabad. Faqir Ullah respondent (defendant) thereafter, on 8-3-1970 also instituted a cross suit against Abdullah for possession of the same land on the basis of his legal title. Both these suits were consolidated and were adjudicated upon by one and single judgment on 31-3-1971. Against this judgment Abdullah filed a single appeal before the District Judge, Muzaffarabad, who relying on the decision in Illam Din v. Mst. Qasim Jan an unreported judgment of a Division Bench of Azad Jammu & Kashmir High Court-Case No. 24 of 1971-dismissed the appeal for the reasons that failure on the part of the appellant to file appeal against the decree passed in the cross-suit would operate as res judicata. This finding was maintained by the learned Single Judge of the High Court by his order dated 11-4-1973, against which finding a letters patent appeal was filed which was still pending in the High Court when, on constitution of Judicial Board, it stood transferred by the operation of law before that Court, and subsequently on amendment of Interim Constitution before this Court.
2. The sole question for determination in this appeal is that where cross suits between the same parties and on the same facts, are consolidated tried together and disposed of by one judgment but separate decrees are prepared would, and an appeal is filed in one case only, whether in such a case, the decree un-appealed operate as res judicata under section 11, Civil Procedure Code. The preponderance of the Judicial authority is in favour of the view that the un-appealed decree does not operate as res judicata. Among other authorities in support of this proposition, AIR 1927 Lab.
279 (?) a Full Bench case deals with the question at length. The question for consideration that arose before the Lahore High Court in the aforementioned case was to the effect that where the same property which is the subject matter of two contemporaneous suits between the same parties in which common issues are involved and the two suits are tried together and disposed of by a single judgment but two decrees are prepared and one appeal is preferred against one decree only, does the fact that there is an un-appealed decree create an estoppel against hearing of the appeal. Their Lordships of the Lahore High Court held that it does not for the reason that no bar to the appellant's appeal proceedings was created either by the provision of section 11 of Civil Procedure Code or by the general principles of res judicata. This view that the matter would not operate as res judicata was confirmed by the Supreme Court of India in Narahari v. Shankar (1953 (?) SC (Ind.) 411). The decision on the point proceeds on the grounds that the decision given simultaneously cannot be said to be a decision in a former suit. The contrary view expressed in an unreported judgment of Azad Jammu & Kashmir High Court Illam Din v. Qasim Jan, was based on a ruling of Allahabad High Court in Mst. Lachhmi v. Bulli (33 All. 52). This view had been also taken by certain other High Courts of Sub-Continent. In view of conflict of decisions in various High Courts of sub-continent, the High Court of Azad Jammu & Kashmir in .Mr Afzal and others v. Kalander and others (PLD 1976 Azad J & K 26), referred the point to the Full Bench which felt inclined to adopt the view that the matter would not operate as res judicata and consequently the contrary view expressed in Illam Din v. Qasim Jan which was followed in the present case, was overruled.
3. In the present case as stated elsewhere both the suits were consolidated and they were disposed of by a single judgment but two decrees were prepared and an appeal was preferred against one decree only though a copy of the decree passed in the other suit was also placed on record with the appeal. Yet no specific prayer for setting aside the decree prepared in the cross suit was made in this appeal. The question that needs determination, precisely speaking, is whether the un-appealed decree in such circumstances would create an estoppel against the hearing of the appeal. The estoppel in such cases is not created by a decree but would only be created by the judgment. But there is "ex hypothesi" a single judgment disposing of the two suits, which judgment is under appeal and therefore the plea cannot prevail on that ground. The un-appealed decree is not such a record in the technical sense of the' term as would create the estoppel. In order to understand the real basis and significance of the expression 'estoppel by record' reference may usefully be made to the following remarks of Spencer Bower who at page 5 paragraph 10 of his valuable book on the `Doctrine of Res Judicata' writes: "It is the res judicata not the record of it, which creates the estoppel. As will be seen hereafter it is quite immaterial whether the judicial decision is pronounced by a tribunal, which is required by law or authorised by custom, to keep written memorials of its decisions or by a tribunal which is not so required or authorised. The term as applied by Coke and the other Elizabethan Jur1sts, did undoubtedly reflect the views then obtaining as to the characteristics and limits of this class of estoppel. At a time when it was considered a sacrilege to question the inviolable credit and verity of a Judicial record, rather than an injustice and scandal to impeach and re-agitate a Judicial decision, the phrase was natural and appropriate enough. But now that the latter aspect of the question has gradually, but utterly and completely, superseded and obliterated the former, the retention of the expression has become a ridiculous and archaic survival though res judicata happens to be recorded and can only be proved by the record the principle of the estoppel is altogether independent of the form in which the Judicial decision is recorded, or of the question whether it is recorded, or recordable at all."
In the instant case the judgment has been pronounced between the parties on the basis of finding of facts arrived at by the Court in a consoli--dated proceedings. In fact the judgment was recorded only in one suit and evidence was also taken down only in one suit-in which the present appeal has been preferred.
In AIR 1947 Nag. 248 in a letters patent appeal a preliminary objection was raised about the competency of the appeal on the ground of res judicata. The learned Judges at p. 253 held: "In order that a decision should operate as res judicata it should be quite independent of the proceedings to which it is pleaded as a bar. The principle of res judicata cannot apply in the same proceeding in which the decision is given and by parity of reasoning it cannot apply to the consolidated proceedings. When by consent of parties of by an order of the Court the two suits are consolidated they have no independent ex1stence and nothing decided in one of the two consoli-- dated suits can operate as res judicata if that decision was appealed against. This is because there are no two independent decisions."
This reasoning was subsequently followed by Karachi High Court in Allah Din and others v Jamshed Aderji Dubaleh (PLD 1961 Kar. 38). The Azad Jammu & Kashmir High Court also in a recent Full Bench case referred to above has followed the view adhered to by a large number of High Courts.
5. The doctrine of estoppel is reflected in two Latin maxims : (i) "interest rei publica ut sit finis litium" and (ii) nemo debet vis vexare pro una et eadem causa. The former is public policy and the latter is private justice." In other words res judicata in its true and original form may conveniently be described as 'estoppel by record' This has long been recognized as operating as a complete bar if the necessary conditions are present, that is to say where in a judicial decision between the same parties some issue which was in controversy between the parties has been decided that may created an estoppel but if the same judgment based on the same facts is sub judice on appeal, it cannot be said that the issue or the subject matter has been finally decided between the parties.
Moreover, to set up the very judgment that has been appealed against as a bar being mere technically, should not normally be allowed to prevent the Courts from doing substantial justice between the parties on ground that are equitable.
We are, therefore, of the opinion that the judicial authorities in favour of the view, that where the two suits between the same parties involving common issue are disposed of by one judgment and an appeal is filed against one decree alone the decree un-appealed would not operate as a res judicata, represent the correct legal view and we, therefore, agree with the view of Azad Jammu & Kashmir High Court expressed in Full Bench case Mir Afzal and others v. Kalandar Shah and others.
6. The contrary view expressed in illam Din v. Mst. Qasim Jan which was based on Mst. Lachhmi v.
Bulli, proceeds on the ground that the moment the decree passed on the basis of the same judgment becomes final either because no appeal is preferred against it, or the appeal taken against it is dismissed then at that point of time there comes a judgment which must be regarded as final between the parties so as to operate as res judicata, with due deference for the learned Judges, is not in our judgment, legally correct and should not be followed so far Azad Jammu & Kashmir is concerned. It must, therefore, be held that Abdullah appellant's omission to prefer an appeal against the decree passed in the suit instituted by Faqir Ullah does not prevent the appeal in his own suit because the same judgment on which both decree are based is still sub judice and the decree un-appealed cannot be treated as a decree in a former suit which is a necessary requisite for application of the rule of res judicata.
Hence accepting the appeal we set aside the judgment and decree of the High Court dated 11-4- 1973 as well as judgment and decree passed by the District Judge, Muzaffarabad, on 4-10-1972 and remand the case to the District Judge Muzaffarabad, the first appellate Court, for disposal according to the merits. In the circumstances of the case we leave the parties to bear the costs of these proceedings.