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2007 Supreme(AP) 941

Andhra Pradesh High Court
B. SESHASAYANA REDDY
Kasarapu Sujatha and another - Appellant
Vs.
Veera Velli Veera Somaiah - Respondent
SA No.928 of 2002
Decided on: Twenty First Day of September, 2007

Advocates appeared:Nandigam Krishna Rao, Counsel for the Appellants; M. Rama Rao, Counsel for the Respondent.

Headnote:(A) Limitation Act 1963, Article 65- Filing of Suit for declaration of title, injunction and possession of immovable property within 12 years of denial of plaintiffs title by defendants for first time in their written statement is within limitation as provided under Article 65. [Para 29]

       (B) Civil Procedure code 1908-Order 23 Rule 1 and Order 2 Rule 2- Limitation Act, 1963, Article 65- Earlier suit filed by plaintiff later withdrawn- Filing of subsequent suit on identical cause of action. Where cause of action and relief claimed in second suit are not the same as the cause of action and relief claimed in first suit, second suit cannot be considered to have been brought in respect of same subject matter. Mere identity of some of issues in two suits does not bring about an identity of subject matter in two suits. Earlier suit only for injuction simplicator. Subsequent suit filed for declaration of title, injunction and recovery of possession. Subsequent suit, not barred either under Order 2 Rule 2 or Order 23 Rule 1 CPC. Appeal, dismissed. [Para 31]

       AIR 1917 Mad. 512(2) (FB); AIR 1970 SC 987- Relied.

JUDGMENT :-Unsuccessful defendants in the trial Court as well as in the lower appellate Court are the appellants in this second appeal.

2. The respondent is the plaintiff in O.S. No.169 of 1994 on the file of the Junior Civil Judge, Suryapet. He filed the suit for declaration of his title and injunction. He also sought for relief of recovery of possession of certain extent of land wherein some structures exist. It is the case of the plaintiff that he purchased the suit schedule land comprising Survey No.475 admeasuring Ac.2.05 guntas; Survey No.476 admeasuring Ac.0.26 guntas and Survey No.477 admeasuring Ac.0.26 guntas from Kotha Rami Reddy and his son Kotha Yakava Reddy under EX.A2 registered sale deed dated 5.8.1976. He got his name mutated in the revenue records as Pattedar and he paid the cist for the said land till the State Government exempted collection of cist for the agricultural land in the year 1984. The defendant No.1 along with his sister Prameela filed O.S. No.440 of 1980 against him and three others seeking partition and separate possession of their shares. Ultimately, they got the suit clismissed as withdrawn. - Few years thereafter, the defendants tried to interfere with his possession over the suit schedule land. Therefore, he filed O.S. No.168 of 1986 seeking perpetual injunction. The defendants approached the plaintiff with a proposal to settle the dispute out of Court. He agreed and withdrew the suit as not pressed on 21.1.1993. The elders failed to mediate and expressed their inability to compel the defendants for settlement out of Court. When the defendants tried to interfere with his possession on 30.8.1993, he filed a suit for declaration of title, perpetual injunction and for recovery of possession of certain extent of land wherein some structures exist.

3. The first defendant filed written statement and the second defendant, who is no other than the husband of the first defendant, filed memo adopting the written statement of first defendant. It is the case of the first defendant that the suit schedule property is her ancestral property, Kotha Rami Reddy, Kotha Malia Reddy, Kotha Somi Reddy and Kotha Anantha Reddy were brothers and they constitute a Hindu Joint Family. They possessed the suit property along with some other properties. Of the four brothers, two of them viz., Malia Reddy and Anantha Reddy went in adoption. Therefore, Rami Reddy and Somi Reddy enjoyed the properties jointly. Somi Reddy died intestate about 20 years back. He was survived by a son viz., Narsi Reddy and two daughters viz., first defendant Sujatha and her sister Prameela. Narsi Reddy died as a bachelor. Rami Reddy also died leaving behind his two sons viz., Yakava Reddy and Damodar Reddy. When Yakava Reddy started moving in bad company and became prey to vices, the first defendant along with her sister Prameela filed O.S. No.440 of 1980 against Yakava Reddy and his brother Damodar Reddy and two others seeking for partition and separate possession of their shares. The plaintiff herein was one of the defendants in the said suit. Pending the suit, the plaintiffs therein and their cousins who were the defendants I and 2 in the said suit entered into a compromise.' In the said compromise, Ac.1.20 guntas in two bits, one bit admeasuring Ac.1.00 guntas and another bit admeasuring Ac.0.20 guntas allotted to the first defendant. The first bit of Ac.I.OO is bounded by : North: Land of S. Narasimha Reddy and S. Janardhan Reddy; South : Land of plaintiff; East : Land of Plaintiff and West: PWD Road. The second bit of Ac.0.20 guntas is bounded by : North : Land of S. Narasimha Reddy and S. Janardhan Reddy; South : Land of plaintiff; East : PWD Road, and West : Land of Pathepuram Mallaiah. Subsequent to the settlement, the defendants herein did not pursue the said suit and consequently, the said suit came to be dismissed for default. The defendants constructed, two room residential house over an extent of 12 x 6 Sq. yards in Ac.1.00 of land


























































































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