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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
M. VENKATA RAMANA, J.
M. Venkateswara Rao and Others – Appellants
Versus
K. Koteswara Rao and Others – Respondents
Appeal Suit No. 1701 of 1998
Decided On : 14-06-2021
Civil Procedure code, 1908 - Section 96, 11, 105, Order VI Rule 17 - Transfer of Property Act, 1882 - Section 8, 54 - Evidence Act, 1872 - Section 13, 40 to 44 - Relief sought by appellants in suit is to declare their right, title and interest of plaint schedule properties and to grant a consequential permanent injunction restraining respondents from interfering with their possession and enjoyment of same and also declare their right, title and interest and for recovery of possession of same from respondents 1 to 4 after duly evicting them there from - In this appeal, an attempt is made on behalf of appellants to consider this amendment of relief obviously in terms of Section 105 CPC - Amendment of pleadings is governed by Order VI Rule 17 CPC - One of prime requirements to consider a request for amendment of pleadings is not only nature of amendment but also due diligence on part of party seeking such amendment - Whether appellants are entitled for relief of declaration of their right, title and interest to both items of suit lands and for consequential reliefs - Whether suit claim is barred by time and if findings of learned trial Court in this respect are proper – Held, Section 40 of Evidence Act even without using term Respondent-judicata refers to consequences of res-judicata - It is because of Section 40 that a judgment, which is relied on by a party in a subsequent suit in support of its plea of res-judicata, becomes relevant and can be read in evidence - A previous judgment operates as res-judicata between parties to earlier suit as also to persons claiming title through any such party - Appellants failed to establish their right, title and interest to both items of suit lands - They should suffer consequences entailing rejection of their case - Learned trial Judge held that relief of possession is barred by limitation - At same time, learned trial Judge recorded another finding that filing suit for declaration after disposal of S.A. brings same within limitation - Learned counsel for 6th respondent invoking Order 41 Rule 22 CPC sought to canvass against this finding though no separate appeal or cross-objection is preferred - Though such course is open for a party to challenge any finding recorded against him when supporting decree, in given facts and circumstances of case, 6th respondent cannot pursue such defence of bar of limitation now - Appeal dismissed.
JUDGMENT :
M. VENKATA RAMANA, J.
1. This is a regular first appeal filed under Section 96 CPC by the plaintiffs-appellants against the decree and judgment in O.S. No. 22 of 1990 dated 29.04.1998 on the file of the Court of learned Senior Civil Judge, Nuzvid. The respondents are the defendants in the suit.
2. During pendency of this appeal, the first appellant died. His sole legal heir being the second appellant is on record. The 7th respondent died during pendency of the appeal. Respondents 10 and 11, who are his legal heirs, have been brought on record.
3. The relief sought by the appellants in the suit is to declare their right, title and interest to Item No. 1 of the plaint schedule properties and to grant a consequential permanent injunction restraining the respondents from interfering with their possession and enjoyment of the same and also declare their right, title and interest to Item No. 2 of the plaint schedule properties and for recovery of possession of the same from the respondents 1 to 4 after duly evicting them there from. These two properties are described in the plaint schedule as under:
| East | Donka |
| South | Land of Parsa Rajaratnam now purchased by Korivi Koteswara Rao |
| West | Vagu for some extent and land of Nanduru Veerabhadra Sarma for some extent |
| North | Land of Gera Yesamma now purchased by Kurakula Tirupataiah |
| East | Donka |
| South | Land of Gera Yesamma now under unauthorized occupation of the defendants 1 to 4 |
| West | Land of Guduru Krishnarao. |
| North | Land purchased by Korivi Koteswararao from Parsa Rajaratnam. |
They shall be referred to hereinafter as ‘the suit lands’ for convenience.
4. The case of the appellants is that Item No. 1 of the suit lands was purchased of different extents under different sale-deeds in between the years 1969 to 1974 by the first appellant in the name of his wife Smt. Sesha Ratnamma. Smt. Sesha Ratnamma passed away. During her lifetime, according to the appellants, the first appellant was managing these lands raising a mango garden therein. It is also their case that by the time of purchase of these extents, there were full of bushes with Palmyra trees, which the first appellant reclaimed and made it suitable to raise a mango garden. Thus, the appellants stated that in or about in the year 1973 in an extent of about Ac. 10.00 cents and later in another extent of Ac. 2.00 cents, the first appellant raised a mango garden and that entire extent of Ac. 11.74 cents in Item No. 1 of the suit lands is a single extent.
5. It is also the case of the appellants that Item No. 2 of the suit lands is further to the south of Item No. 1, which are separated by an extent of Ac. 1.00 cents belonging to Sri. Parsa Rajaratnam, who later sold it away to the first respondent and that this Item No. 2 is to the immediate south of land in possession of the first respondent. It is also their case that further south of this Item No. 2, the 6th respondent has her land and to immediate north of Item No. 1, the 6th respondent had her land, which she had sold away to the 9th respondent showing more extent than what she had, giving incorrect boundaries. It is further contended that the first appellant purchased item No. 2 in the name of his wife in R.S. No. 287/3A from the rightful owners under a possessory agreement for sale dated 2
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