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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
M. Seetharama Murti, J.
Gottumukkala Sundara Narasaraju and Ors. – Appellants
Versus
Pinnamaraju Venkata Narasimharaju and Ors. – Respondents
S.A. Nos. 1140 and 1305 of 2003
Decided On : 07-12-2015
Civil Law – Civil Suit – Suit for recovery of possession – Plaintiffs had brought suit against defendants 1 and 2 for declaration of their right, title and interest over the plaint schedule property and for recovery of possession of same after evicting the defendants there from – During the pendency of the suit, the 1st defendant had died and his legal representatives were brought on record as defendants 3 and 4. 1st defendant during his life time had filed a written statement and resisted the suit – 2nd defendant had filed a written statement stating that he is not a necessary party to suit – 3rd defendant, who is one of the legal representatives of the 1st defendant, had remained ex-parte – Though the suit was originally instituted in Court of Principal District, said learned Munsif having passed an order holding that said Court has no pecuniary jurisdiction to try suit had accordingly returned the plaint for presentation to the proper Court – Thereafter, the plaint was presented in the Court of Senior Civil Judge and the suit was renumbered as OS.– After the death of the 1st defendant, the 2nd defendant had filed a further written statement denying the plaint averments and had claimed that after death of 1st defendant, the subject property devolved upon him and the 4th defendant by virtue of a registered Will executed by deceased 1st defendant and that 3rd defendant is not a necessary party and that in terms of the said Will, the suit property had devolved upon the defendants 2 and 4 – Held, now substantial questions of law raised by the plaintiffs in their second appeal are taken up. The said questions relate to the plaintiffs entitlement to the mesne profits, which are not granted by both Courts below – Be it noted that the Court below had dismissed the cross objections of the plaintiffs filed in that regard – No serious resistance is made to the claim of the plaintiffs in this regard – Learned senior counsel for the plaintiffs had contended that the suit filed for recovery of possession was decreed by Courts below and that award of mesne profits follow event and hence, the Courts below ought to have granted future mesne profits to the plaintiffs instead of refusing to grant the same – He had placed reliance upon decision of Supreme Court in R.S. Maddannappa (deceased) by LRs. v. Chandramma and another, AIR 1965 SC 1812 – Facts of the case disclose that plaintiff brought a suit against her sister for possession of half share of the suit property. The High Court had awarded mesne profits to the successful first defendant even though she was not transposed as a plaintiff – It was contended before the Supreme Court that mesne profits cannot be awarded to the successful party to a suit for possession unless a claim was made in respect of them – S.A. dismissed. (Paras 16 and 17)
M. Seetharama Murti, J.
1. The second appeal in SA.No.1140 of 2003 under Section 100 of the Code of Civil Procedure, 1908 (the Code, for brevity) by the unsuccessful defendants 2 and 4 is directed against the decree and judgment dated 11.09.2003 in AS.No.204 of 2001 on the file of the Court of the learned II Additional District Judge, Visakhapatnam.
1.1 By the impugned decree and judgment, the Court below had dismissed the first appeal of the defendants 2 and 4 and also the cross objections of the plaintiffs.
1.2 Therefore, feeling aggrieved of the dismissal of their cross objections and for not awarding future mesne profits, the plaintiffs had brought the other second appeal SA.No.1305 of 2003.
1.3 The learned Additional District Judge while dismissing the said first appeal of the defendants 2 and 4 and the cross objections of the plaintiffs had confirmed the decree and judgment dated 27.08.2001 of the learned Senior Civil Judge, Yelamachili of Visakhapatnam District passed in OS.No.32 of 1997 (Old OS.No.287/91 on the file of the Court of the learned Principal District Munsif Court, Yelamachili) filed for declaration of plaintiffs right, title and interest over Ac.5.89 cents of Zeroithi land of Z. Chinthuva village, Rambilli mandal in four items viz., Ac.1.95 cents in S.No.103/3A; Ac.1.95 cents in S.No.103/3B; Ac.1.35 cents in S.No.103/3C and Ac.0.64 cents in S.No.103/4 situate contiguously and for recovery of possession of the said property more fully described in the schedule annexed to the plaint.
2. At the time of admission of the second appeal of the plaintiffs, the following substantial questions of law were formulated:
(1) Whether the courts below were justified in not awarding future mesne profits even though not prayed decreeing the suit holding that the plaintiffs are having right, title and interest over the suit schedule lands?
(2) Whether the courts below were correct in not awarding future mesne profits as not being prayed contrary to the judgments of AIR 1965 SC 1812, AIR 1952 SC 358 and AIR 1974 Gujarat 95?
(Reproduced verbatim)
3. At the time of admission of the second appeal of the defendants 2 and 4, the following substantial questions of law were formulated.
(1) Whether, under the facts and circumstances, certain findings in an earlier suit after reaching its finality can be reversed in subsequent suit when the parties disputed property and the documents relied upon are one and the same, irrespective of the relief sought for?
(2) Whether it is justified that when certain exhibits, which are disbelieved in the earlier proceedings could be believed in subsequent proceedings?
(Reproduced verbatim)
4. At the time of hearing of these two appeals, the following additional substantial questions of law are formulated in the second appeal of the defendants 2 and 4.
(1) Whether the suit of the plaintiff is barred by law of limitation in view of the provision of Section 58 of the Indian Limitation Act?
(2) Whether the Courts below are justified in ignoring the findings in the earlier suit on the ground that a document which is filed in the present litigation was not filed in the earlier suit despite the fact that the findings in the earlier suit, which have become final are binding on the parties insofar as the disputed property?
5. I have heard the learned senior counsel appearing for the defendants 2 and 4/the appellants in SA.No.1140 of 2003 and the learned senior counsel appearing for the plaintiffs/the appellants in SA.No.1305 of 2003. The 4th defendant had died during the pendency of these appeals and the 3rd appellant is brought on record in SA.No.1140 of 2003 being his legal representative.
6. The parties in these appeals shall hereinafter be referred to as the plaintiffs and the defendants as arraigned in the suit, for convenience and clarity.
7. The introductory facts, in brief, are as follows:
7.1 The plaintiffs had brought the suit against the defendants 1 and 2 for declaration of their right, title and interest o
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