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Andhra Pradesh High Court
Tekkali Appalanaidu - Appellant
Versus
Adari Satyanarayana - Respondent
Decided On : 03-13-02
Civil Procedure Code , 1908 – Section 11 – Property - Bequeathing her properties - Decreed - Seeking the relief of declaration and possession - Permanent injunction - Plaintiff died and plaintiffs 2 to 4 came on record as legatees under Will alleged to have been executed by Consequent on other plaintiffs coming record, amendment was made to suit plaint seeking the relief of declaration and possession - It is case of the original plaintiff that she is owner of all land situate in village more fully described in schedule of properties which are her self-acquired properties and plaintiff has been in exclusive possession and enjoyment of suit schedule properties - It was also stated that first defendant filed suit in before the Principal Subordinate Judge for partition of the suit schedule properties and other properties - After death of the first plaintiff the first defendant did not bring the legatees under the Will dated - Suit was ultimately dismissed - Therefore, judgment in suit operates as pes judicata and estoppel - Trial Court on the basis of evidence available on record came to conclusion that suit schedule properties were acquired by out of her own funds and therefore decreed both the suits as prayed for by common judgment - Aggrieved by judgment and decree in 1st defendant filed present appeal - Appellant-defendant submits that findings recorded by the trial Court to effect that suit schedule properties are self-acquired by from out of her own funds are absolutely illegal and run counter to the evidence on record - He submits that mahalaxamamma had no personal income at all and there is no evidence as to whether she has got any property from her parents – On other hand, parents of were always in debts, they have been mortgaging the properties to various persons including husband and they have been redeeming and selling properties - Held, Two sets of different issues were framed as extracted above obviously for reason that scope of both the suits was different - While in former suit the principal issue was whether suit schedule properties were self-acquired properties of or joint family properties, in the later suit filed by beneficiaries the relief was claimed on basis of settlement deed – Further, both suits are not cross-suits filed by the parties claiming similar relief - Therefore, decision of Supreme Court does not fit with facts of this case - Self same question was directly in issue and was subject matter of both the suits - Same having been allowed to become final, it cannot be gone into since same had attained finality petitioner having not filed any appeal against appeal dismissing the suit - In view of this situation High Court was right in concluding that decree of dismissal of the suit against petitioner would operate as res judicata under Sec. ll c. P. C. in appeal against which petitioner has filed the second appeal - It went against 1st defendant against which present appeal has been filed – Under these circumstances cannot be said that cause of action is same in two suits even though parties are same - Further, relief was also different - Hence it has to be held that principles of res judicata would not apply in this case and accordingly Court hold that decisions relied on by learned counsel for the respondents in and (1 and 2 supra) would not be of any assistance to him in this regard - Appeal is accordingly allowed.
( 2 ) THE appeal came to be filed in the following circumstances: one T. Mahalaxamamma filed o. S. No. 204 of 1978 on the file of the principal Subordinate Judge, visakhapatnam and subsequently it was transferred to the court of the Subordinate judge at Anakapalli and renumbered as o. S. No. 61 of 1984. Originally the suit was filed for injunction in respect of the suit schedule properties. However, pending the suit the plaintiff i. e. , Mahalaxamamma died and plaintiffs 2 to 4 came on record as legatees under the Will alleged to have been executed by Smt. Mahalaxamamma. Consequent on the other plaintiffs coming on record, amendment was made to the suit plaint seeking the relief of declaration and possession. It is the case of the original plaintiff that she is owner of all the land situate in Munagapaka village, Anakapalli taluk, more fully described in the schedule of the properties which are her self-acquired properties and the plaintiff has been in exclusive possession and enjoyment of the suit schedule properties. While so, the plaintiff executed a registered Will dated 5-2-1978 bequeathing her properties in favour of the plaintiffs 2 to 5. However, this action of the plaintiff was not liked by the defendant, who is her son and he was bent upon harassing the plaintiff since he has been trying to interfere with the properties belonging to the plaintiff. She filed suit for permanent injunction restraining the defendant from interfering with the suit schedule properties or to interfere with the crops that were harvested. It was contested by the 1st defendant stating that the 1st plaintiff had not purchased the property out of her own funds and they are all joint family properties acquired by his father parusuramudu. After filing the suit for permanent injunction the same was amended by order dated 31-8-1994 seeking the relief of declaration and possession on the ground that the suit schedule properties were bequeathed in favour of plaintiffs 2 to 5 and therefore they are entitled for the properties. It was also stated that the first defendant filed suit in O. S. No. 70 of 1978 before the Principal Subordinate Judge, visakhapatnam for partition of the suit schedule properties and other properties. After the death of the first plaintiff the first defendant did not bring the legatees under the Will dated 21-5-1978. The suit was ultimately dismissed on 17-4-1981. Therefore, the judgment in the suit operates as pes judicata and estoppel. Basing on the respective averments, the trial Court framed the following issues: " (1) Whether the plaint schedule properties are he self-acquired properties of the plaintiff and she has been in exclusive possession of the same? (2) Whether the plaint schedule properties are the joint family properties of the defendant and his father? (3) Whether the cause of action alleged in the plaint is true? (4) Whether the Court fee paid is not correct? (5) Whether the plaintiff is entitled to the injunction prayed for? (6) To what relief?"
( 3 ) ONE of the plaintiffs who was brought on record subsequent to the death of the original plaintiff, namely Malla satyanarayanamma and her two sons filed another suit in O. S. 12 of 1987 seeking declaration and possession in respect of the suit schedule properties on the strength of the settlement deed dated 1-11-1972 (Ex. A-54 ).
( 4 ) BEFORE the trial Court five witnesses were examined for plaintiff and Exs. A-1 to a-59 were marked. On behalf of defendant 3 witnesses were examined and Exs. B-1 to b-31 were marked.
( 5 ) THE trial Court on the basis of the evidence available on record came to the conclusion th
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