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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
M.S. RAMACHANDRA RAO, J.
Malireddy Satyanarayana Murthy, Died per LRs) & Others
Versus
Malireddy Jagannadha Rao & Others
A.S.No.1679 of 1993
Decided on : 07-03-2014
Civil Procedure Code - Section 96 – Correspondence - Joint family properties - Appeal against Judgment and decree - Appeal is filed challenging - None appears for other respondents in spite of service of notice - There was a partition of the joint family properties between and their brother-in-law who was staying with them plaintiff contested suit contending that got only extent of belongs to joint family of after partition in that extent of taken by family on lease from one originally after discovering that said had no title to this extent and consequently lease is not valid in law and property belonged to Maharajah - This extent exclusively belongs to interest only in and has no interest had executed a letter accepting same that plaintiff and his brother were only entitled of land and not as alleged in plaint and so suit be dismissed – Appeal filed a rejoinder contending that his father had a half share in that a mortgage deed was also executed by in favor of wife of plaintiff at instance of plaintiff and which was also attested by and that letter is a forgery After trial suit was dismissed by judgment and decree - Appellate Court disbelieved case of plaintiff and held that was joint property of mortgage deed executed by on behalf of and his brothers in favor of plaintiff’s wife o corroborates said fact - It rejected plea of plaintiff that execution of document was by way of mistake and held that would not have attested it under a mistake - It therefore rejected plea of plaintiff that is self acquired property of reason of acquisition of same by paying after partition with his brothers - It held that plaintiff who was claiming possession of property through is bound by admission made - It therefore held that got half share in all and not alone as contended by plaintiff – Held, Supreme Court held that only if a matter was in issue is directly and substantially in issue in a prior litigation and decided against a party it would operate as res judicator in a subsequent proceeding - It also held that if a matter is only collaterally or incidentally in issue and decided in an earlier proceeding finding therein would not ordinarily be res judicator in a latter proceeding where matter is directly and substantial in issue - It held that test is if the issue was necessary to be decided for adjudicating on principal issue and only if the answer is yes it would have to be treated as directly and substantially in issue - It also held that if it is clear that judgment was in fact based upon that decision then it would be res judicator in a latter case - As stated it all depends on of each case and whether finding as to title was treated as necessary for grant of an injunction in earlier suit and was also substantive basis for grant of injunction - In this may refer to Corpus where a similar aspect in regard to findings on possession and incidental findings on title were dealt with - It is stated where title to property is basis of right of possession a decision on question of possession is res judicator on question of title to extent that adjudication of title was essential to judgment but where question of right to possession was only issue actually or necessarily involved judgment is not conclusive on question of ownership or title - Supreme Court held that in order to apply general principle of res judicator - Court must first find whether an issue in a subsequent suit was directly and substantially in issue in earlier suit or proceedings was it between same parties and was it decided by Court – Appeal dismissed (Para 23)
(Appeal under Section 96 of C.P.C., against the Judgment and decree dated 31-12-1992 in O.S.No. 15 of 1986 on the file of the Court of the II Additional Subordinate Judge, Kakinada.)
1. Heard Sri K.V.Subrahmanya Narusu, learned counsel, representing Smt. Umadevi Manchala, learned counsel for the appellants and Sri J.Aswini Kumar, learned counsel for respondent Nos.13 to 15, who are the legal representatives of the deceased 1st respondent.
2. None appears for the other respondents in spite of service of notice.
3. This appeal is filed challenging the judgment and decree dt.31-12-1992 in O.S.No.15 of 1986 of the II Additional Subordinate Judge, Kakinada.
4. The 1st appellant is the plaintiff in the suit. Pending appeal, 1st appellant died and his legal representatives have been brought on record.
5. Sooranna, Jaganna, Ramanna, Venkataratnam and Narayanamurthy are brothers and are residents of Jaggammagaripeta in Samalkot Municipal limits. Sooranna and Narayanamurthy went out of the family earlier to 1940. By 1940, Jaganna was the eldest member of the remaining joint family. There was a partition of the joint family properties between Ramanna, Jaganna, Venkataratnam and their brother-in-law Noone Achanna who was staying with them. In that partition, an extent of Ac.0.20 cts in Sy. No.5/5 and an extent of Ac.2.60 cts in Sy. No.7 of the said village jointly fell to the share of Jaganna and Ramanna. Old Sy.No.5/5 correspondence to present Sy. No.41/2 while old Sy. No.7 correspondence to present Sy. No.52/2.
6. Plaintiff is the son of Jaganna and defendants 1 and 2 are sons of Ramanna.
7. D-1 filed O.S.No.544 of 1974 on the file of the Additional District Munsif, Kakinada for permanent injunction against plaintiff herein and his brothers in respect of the house site of Ac.0.70 cts. He alleged that there was a partition between Jaganna and Ramanna; that in the said partition, the southern half portion for this entire area of Ac.2.80 cts fell to the share of Jaganna and the northern half portion fell to the share of Ramanna; that on the death of Jaganna, the plaintiff in O.S.No.15 of 1986 was in possession of the share of Jaganna by having arrangement with his brothers; and that D-1 and his elder brother Venkatarao divided the northern half belonging to their father Ramanna and constructed thatched huts therein; that there was a wall partitioning the site of D-1 from that of the plaintiff; and on 08-05-1974, the plaintiff trespassed into the site of D-1 and removed the thatched hut therein.
8. The plaintiff contested the suit contending that he got only the extent of Ac.0-20 cts in Sy. No.5/5 belongs to the joint family of Ramanna and Jaganna after the partition in 1940; that the extent of Ac.2.60 cts. in Sy. No.7 was taken by the family on lease from one Nagisetty Kodandaramaiah by Jaganna originally; after discovering that the said Nagisetti Kondandaramaiah had no title to this extent and consequently, the lease is not valid in law and the property belonged to the Maharajah Pithapuram, Jaganna paid Rs.50/- to Maharajah of Pithapuram and obtained patta for the extent of Ac.2.60 cts in Sy. No.7; therefore, this extent exclusively belongs to Jaganna; Ramanna had interest only in Ac.0.20 cts in Sy. No.5/5 and he has no interest in Ac.2.60 cts in Sy. No.7, it being the exclusive property of Jaganna; that in December, 1955, Jaganna allotted to Ramanna, on his request, Ac.0.05 cts in sy. No.5/5 and Ac.1.80 cts in Sy. No.7 and Ramanna had executed a letter dt.01-01-1956 accepting the same; that plaintiff and his brother were only entitled to Ac.0.85 cts of land and not as alleged in the plaint; and so the suit be dismissed.
9. D-1 filed a rejoinder contending that his father Ramanna had a half share in Sy.Nos.5/5 and 7; that a mortgage deed was also executed by Ramanna and D-1 in favour of Ratnavathi, wife of the plaintiff at the instance of the plaintiff and Jaganna on 24-06-1954 which was also attested by Jaganna and Venkata Rao
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