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2004 DIGILAW 952 (AP)

S. Askari Hussaini v. Mir Asad All Khan

2004-09-03

D.S.R.VERMA

body2004
D. S. R. VARMA, J. ( 1 ) THESE two appeals arise out of a common judgment, dated 11-2-1998, in O. S. No. 25 of 1991, passed by the First Additional Senior Civil judge, Ranga Reddy at Saroornagar, hyderabad. ( 2 ) THE appellants in A. S. No. 1025 of 1999 are the plaintiffs while the appellants in A. S. No. 1433 of 1998 are the defendants in O. S. No. 25 of 1991. ( 3 ) FOR the sake of convenience, the parties will be referred to as arrayed in the suit. ( 4 ) THE suit was filed for declaration that the plaintiffs are the pattedars and owners of the suit lands and for recording the names of the plaintiffs as owners and pattadars of the suit lands, after deleting the names of the defendants, in the village pahanies and other Revenue Records. Pending trial of the suit, the Plaintiff No. 1 died and as such his legal representatives were brought on record as Plaintiffs Nos. 3 to 6. ( 5 ) EARLIER, the plaintiffs filed O. S. No. 62 of 1972 for declaration of title and possession, which was dismissed by the Trial court. But, however, the Court below granted the relief of partition to the extent of l/4th share in the suit schedule lands is concerned. ( 6 ) FOR the sake of convenience, the suit in O. S. No. 62 of 1972 and the present suit in O. S. No. 25 of 1991 would be referred to as "the earlier suit" and "the latter suit" respectively. ( 7 ) FEELING aggrieved by the judgment and decree of the Court below, dated 30-3-1976, in O. S. No. 62 of 1972, the defendants have preferred an appeal in c. C. C. A. No. 115 of 1976, which was eventually disposed of along with another appeal, which arose out of a suit in O. S. No. ll of 1971 filed by the Wakf Board claiming the suit schedule lands as belonging to the Wakf Board. The said suit was also dismissed against which the Wakf board had preferred an appeal in C. C. C. A. No. 129 of 1979, and having been aggrieved with a particular finding of the Court below, the defendants have also preferred another appeal in C. C. C. A. No. 38 of 1980. The said suit was also dismissed against which the Wakf board had preferred an appeal in C. C. C. A. No. 129 of 1979, and having been aggrieved with a particular finding of the Court below, the defendants have also preferred another appeal in C. C. C. A. No. 38 of 1980. All the above three appeals in C. C. C. A. No. 115 of 1976, C. C. C. A. No. 129 of 1979 and C. C. C. A. No. 38 of 1980 were disposed of by a common judgment, dated 29-8-1983, by a Division Bench of this Court. Except c. C. C. A. No. 115 of 1976, which was filed against the judgment and decree, dated 30-3-1976, in O. S. No. 62 of 1972, which was allowed while reversing the judgment and decree of the Court below, the other two appeals and the averments thereof are not very relevant for the purpose of deciding the present appeals. ( 8 ) THE above said common judgment rendered by the Division Bench of this Court insofar as C. C. C. A. No. 115 of 1976 has become final since the same was not challenged. Subsequently, the present suit in o. S. No. 25 of 1991 came to be filed by the very same plaintiffs in O. S. No. 62 of 1972. ( 9 ) THE Court below while dismissing the suit in O. S. No. 25 of 1991 on the ground that the judgment and decree passed in o. S. No. 62 of 1972, which were carried in appeal in C. C. C. A. No. l15 of 1976 wherein the judgment and decree of the Court below were reversed by the Division Bench of this Court, operates as a bar to file the present suit in O. S. No. 25 of 1991 by virtue of the operation of the principles of res judicata . But, however, on Issue No-2, the Court below held that the plaintiffs were entitled to get their names recorded as pattedars in the pahanies after deleting the names of the defendants therein. But, however, on Issue No-2, the Court below held that the plaintiffs were entitled to get their names recorded as pattedars in the pahanies after deleting the names of the defendants therein. ( 10 ) HENCE, the plaintiffs have preferred the appeal in A. S. No. 1025 of 1999 against the findings of the Court below dismissing the suit insofar as they relate to the relief of declaration of title to the suit schedule land is concerned, whereas the defendants have preferred the appeal in A. S. No. 1433 of 1998 having been aggrieved against the relief granted to the plaintiffs insofar as the finding that the plaintiffs are entitled to get their names recorded as pattedars in the pahanies deleting the names of the defendants. ( 11 ) BRIEF facts of the case are that one Khurban Hussaini Khan and meharunnisa Begum are the children of hussaini Nawaz Jung. Meharunnisa begum had a son by name Akber Alt Khan and the plaintiffs are his children. Zainula abedin, Khursheed Zaman Begum (Defendant No. 4) and Iqbalunnisa Begum (Defendant No. 5) are the children of khurban Hussaini Khan. The Defendants 1 to 3 are the children of Zainula Abedin, who was no more. Meharunnisa Begum was enjoying the suit schedule lands in her own rights. After some litigation, an enquiry was conducted by the Revenue authorities wherein it was held that the plaintiffs were the heirs of Meharunnisa begum and were, therefore, the pattedars of the suit schedule lands. The Defendants 1 to 5 have preferred an appeal to the collector and the same was dismissed. The plaintiffs came to know that the Defendant no. 6 was inducted into possession of the suit schedule lands by the Defendants 1 to 5. The cause of action arose when the plaintiffs came to know in May, 1969 that the Defendants 1 to 5 inducted the Defendant no. 6 into possession of the suit schedule lands. Hence, the suit. The plaintiffs came to know that the Defendant no. 6 was inducted into possession of the suit schedule lands by the Defendants 1 to 5. The cause of action arose when the plaintiffs came to know in May, 1969 that the Defendants 1 to 5 inducted the Defendant no. 6 into possession of the suit schedule lands. Hence, the suit. ( 12 ) IT is the contention of Sri V. Tulasi reddy, the learned Counsel appearing on behalf of the defendants, that the latter suit was hit by the principles of res Judicatca since the same plaintiffs have earlier filed a suit in O. S. No. 62 of 1972 for the same relief, the judgment and decree in the said suit were reversed by a Division Bench of this Court in C. C. C. A. No. 115 of 1976 and batch. Therefore, it is his contention that the latter suit is not maintainable as prescribed under Section-11 of the Code of Civil procedure and consequently the Court below dismissed the latter suit on the ground that the judgment and decree in O. S. No. 62 of 1972 have been reversed. His further contention is that the Court below was in serious error in granting the relief to the plaintiffs to get their names recorded as pattedars in the pahanies after deleting the names of the defendants therein. ( 13 ) ON the other hand, Sri Prakash reddy, the learned Senior Counsel appearing on behalf of the plaintiffs, vehemently contends that the judgment and decree passed by the Division Bench of this Court in C. C. CA. No. 115 of 1976 do not operate as "res Judicata" since their Lordships have reversed the judgment and decree of the Court below in O. S. No. 62 of 1972 only on mere technical ground that the Court below was in error in granting the relief of partition to the extent of l/4th share is concerned in a suit for declaration of title and possession. ( 14 ) IT is necessary to look at the issues framed by the Trial Court in O. S. No. 25 of 1991, which are as under: (1) Whether the plaintiffs are entitled to declaration that they are pattedars and owners of the suit lands? ( 14 ) IT is necessary to look at the issues framed by the Trial Court in O. S. No. 25 of 1991, which are as under: (1) Whether the plaintiffs are entitled to declaration that they are pattedars and owners of the suit lands? (2) Whether the names of the plaintiffs can be entered into Column No. l 1 as pattedars and owners of the suit lands in the pahanies deleting the names of the defendants? (3) Whether the plaintiffs are barred by estoppel as pleaded by the defendants in Para 24 of the written statement? (4) Whether the suit as framed by the plaintiffs is not maintainable? (5) Whether the plaintiffs abandoned and waived their right of ownership as pleaded by the defendants in Para 31 of the written statement? (6) Whether this Court has no jurisdiction to direct the correction of the entries in the village records? (7) Whether the suit is time barred? (8) To what relief the plaintiffs are entitled to? ( 15 ) EXCEPT Issue Nos. l and 6, the other issues are not relevant for the purpose of deciding the present appeals. ( 16 ) HENCE, the point that falls for consideration in the present appeals is - whether the latter suit in O. S. No. 25 of 1991 is maintainable in the light of the judgment and decree, dated 29-8-1983, in c. C. C. A. No. 115 of 1976 and Batch rendered by a Division Bench of this Court and whether the said judgment and decree would operate as "res Judicata"? ( 17 ) IN this regard, it is to be seen that the earlier suit was filed by the same plaintiffs in the latter suit against the very same defendants along with a tenant and 3 other sharers. The suit was filed for declaration of title and possession and for compensation in respect of some extent of suit schedule lands, which was acquired. It is the case of the plaintiffs in the said suits that the suit schedule lands originally belonged to one nawab Nizamuddoula Bahadur and he endowed the suit schedule lands in favour of his son by name Nawab Hussain Nawaz jung Khan for the services of Niazath. The said Hussain Nawaz Jung Khan was in possession of the suit schedule lands as mutawalli. The said Hussain Nawaz Jung Khan was in possession of the suit schedule lands as mutawalli. After his death, one Syed khurban Hussain Khan was in possession and enjoyment of the suit schedule lands and after his death the suit schedule lands came into possession and enjoyment of his son by name Syed Zainullabuddin Khan, the father of the Defendants 1 to 3, while performing the services of Niazath. After the death of their father, the Defendants 1 to 3 have been in possession and enjoyment of the suit schedule lands by leasing out the same to the Defendant No. 6. The plaintiffs in the said suits are the daughters of one Akbar Khan, who is the son of meharunnisa Begum, the daughter of original owner of the suit schedule lands. The said Meharunnisa Begum did not get any share in the suit schedule lands. The plaintiffs or the said Meharunnisa Begum were never in possession and enjoyment of the suit schedule lands. But, one Zainulla abedin s status as Mutawalli was recognized by the Courts of Law. The names of the defendants 1 to 3 were shown in the revenue records as persons in possession of the suit schedule lands. ( 18 ) FROM the above, it could be seen that both the plaintiffs and defendants have been claiming the title over the suit schedule lands in their respective channels. ( 19 ) AT this juncture, it is to be noted that the cause of action for the plaintiffs to file the latter suit was that the Defendant no. 6 was inducted into possession of the suit schedule lands as tenant by the defendants 1 to 5. The significance of this aspect would be dealt with later. ( 20 ) FROM the latter suit, it could be seen that the plaintiffs are the same as in the suit in O. S. No. 62 of 1972, but the only difference is that the plaintiffs have filed earlier suit personally and the latter suit has been filed through the General Power of attorney (for short "the GPA") holder by name Sri Krishna, son of one k. Satyanarayana, who is no other than the son of Defendant No. 6 in the earlier suit. This fact reveals that the plaintiffs in both the suits i. e. , in the earlier suit and in the latter suit are the same and the Defendants 1 to 3 are also same in both the suits. Added to this, the GPA holder representing the plaintiffs by name Sri Krishna is no other than the son of Defendant No. 6 in the earlier suit. ( 21 ) ANOTHER incidental factor that is recorded is the plaintiffs have also filed a writ petition in WP. No. 713 of 1993 before this Court wherein the Respondent No. 7 is no other than the GPA holder representing the plaintiffs in the suit. It was the contention of the petitioners in the said writ petition that the proceedings under Section 32 initiated by the Respondents 3 to 5 therein, who are Defendants 1 to 3, against the respondents 6 to 9 therein are wholly without jurisdiction and contrary to the principles of natural justice. It was the further case of the said writ petitioners that they were the pattedars of the land in question and the respondents 3 to 5 therein had got their names wrongly mutated in the Revenue records as pattedars pursuant to an ex parte decree passed in O. S. No. 17 of 1971. The other factors relating to the said writ petition are not relevant for the purpose of disposal of the present appeals. The reference of the said writ petition is made only to the limited extent to note that the Respondent no. 6 therein is no other than the GPA holder representing the plaintiffs in the latter suit. Admittedly, the said writ petition was dismissed. ( 22 ) AS already noticed, the Defendant no. 6 in the earlier suit was the father of the present GPA holder representing the plaintiffs in the latter suit. It is to be further remembered that the plaintiffs in the earlier suit specifically averred against defendants 1 to 3 who are no other than the Defendants 1 to 3 in the latter suit that they unauthorizedly inducted the Defendant no. 6 into possession of the suit schedule lands. ( 23 ) AS already noticed, the earlier suit in O. S. No. 62 of 1972, which was filed for declaration of title and possession, was dismissed. 6 into possession of the suit schedule lands. ( 23 ) AS already noticed, the earlier suit in O. S. No. 62 of 1972, which was filed for declaration of title and possession, was dismissed. But, however, the Court below moulded the relief sought for by the plaintiffs and passed a preliminary decree for partition to an extent of l/4th share in the suit schedule lands in favour of the plaintiffs while dismissing the suit. When the judgment and decree of the Court below were carried in appeal in C. C. C. A. No. 115 of 1976 and batch, a Division Bench of this Court held as under: "the lower Court in this case instead of restricting itself to the prayer in the plaint had ordered a preliminary decree for partition. We do not think we can support such a decree. It is now found the tenant is in possession. Therefore, injunction could not have been granted. In that view, the decree of the lower Court cannot be sustained. The suit therefore is decreed. The appeal fails and is dismissed with costs. " ( 24 ) SUBSEQUENTLY, when the defendants filed an application in C. M. P. No. 7278 of 1984 bringing the clerical mistake in the judgment and decree to the notice of the division Bench of this Court, the judgment and decree were corrected and the decretal portion is as under: "this Court in allowing this appeal and in supersession of the decree of the High Court, dated 29-8-1983, in C. C. CA. No. 115 of 1976, doth order and decree as follows: (1) That the decree, dated 30-3-1976, and made in O. S. No. 62 of 1972 on the file of the court of the I Additional Chief Judge, City civil Court, Hyderabad, be and is reversed and that the aforesaid suit be and hereby dismissed. " ( 25 ) SRI Prakash Reddy, the learned senior Counsel appearing on behalf of the plaintiffs, points out that the judgment of the Division Bench of this Court cannot be treated as the judgment rendered on merits but the same was only on technicality since it was only pointed out by the Division Bench of this Court that the suit was liable to be dismissed inasmuch as the relief of partition was granted though not sought for by the plaintiffs in the suit. He further points out that the Division Bench of this Court by mistake appears to have recorded a finding that the suit was for injunction. ( 26 ) BUT, it is to be seen that while narrating the facts of the case, it was recorded by their Lordships that the suit was filed for declaration of title and for recovery of possession. ( 27 ) THE other submission of the learned senior Counsel appearing on behalf of the plaintiffs is that the appeal in C. C. C. A. No. l15 of 1976 was allowed while dismissing the suit on mere technical ground. This submission cannot be accepted for the simple reason that the Division Bench of this Court had considered the said appeal with regard to the tenant and his possession and also the relief sought for by the plaintiffs for declaration and possession and eventually held that the preliminary decree granted by the Court below for partition was erroneous since the decree granted for partition to the extent of l/4th share to the plaintiffs in the suit schedule lands, while dismissing the suit for declaration of title and possession, which reliefs were actually sought for by the plaintiffs. ( 28 ) HENCE, it is contended by the learned Senior Counsel appearing on behalf of the plaintiffs that, it is only on mere technicality, the appeal filed by the defendants in C. C. C. A. No. 115 of 1976 was allowed but not on merits. ( 29 ) BUT, it is to be seen that the division Bench of this Court had discussed about the merits of the appeal in C. C. C. A. No. l15 of 1976 in a concise form and eventually reversed the judgment and decree of the Court below, dated 30-3-1976, in O. S. No. 62 of 1972, while dismissing the said appeal. The judgment and decree, dated 29-8-1983, in the said appeal remained unchallenged and accordingly became final. ( 30 ) NOW, the very same plaintiffs in the earlier suit in O. S. No. 62 of 1972 have filed latter suit in O. S. No. 25 of 1991 for the very same relief in respect of the same suit schedule lands and against the same defendants. Of course, some of the defendants in the earlier suit were said to be co-sharers and the tenants were excluded. Of course, some of the defendants in the earlier suit were said to be co-sharers and the tenants were excluded. Nevertheless, the contesting Defendants 1 to 3 in the earlier suit are the same as in the latter suit. ( 31 ) THE basic requirements to apply the principles of "res Judicata", as laid down by the Apex Court in Mohd. S. Labbai v. Mohd. Hanifa, AIR 1976 SC 1569 , are as under: (1) That the litigating parties must be the same; (2) That the subject-matter also must be the same; (3) That the matter must be finally decided between the parties; and (4) That the suit must be decided by the Court of competent jurisdiction. ( 32 ) AS already pointed out, the litigating parties in both the earlier and latter suits are the same, the subject-matter of the suit is the same, the issue involved in both the suits is also the same and the relief of declaration of title and recovery of possession being common in both the suits, the earlier suit was already decided by the Division Bench of this Court in favour of the defendants by reversing the judgment and decree passed by the Court below in the earlier suit and that the same have become final as long back as in 1983. The present suit came to be filed for the same relief as against the same parties in respect of the same subject-matter in the year 1991 by way of latter suit authorizing the GPA holder by name K. Krishna. The said K. Krishna is no other than the son of the sixth defendant in the earlier suit against whom the plaintiffs made claim in the earlier suit, who was allegedly inducted into possession of the suit schedule property as tenant by the Defendants 1 to 3. ( 33 ) FROM the above, it could be seen that the plaintiffs in the earlier suit, having totally lost the case in the year 1983, have again resorted to file the latter suit through the GPA holder. Further, the GPA holder in the latter suit has, presumably, had knowledge of the earlier suit proceedings for the simple reason that his father who is no other than the sixth defendant was held to be in possession of the suit schedule property as a tenant. Further, the GPA holder in the latter suit has, presumably, had knowledge of the earlier suit proceedings for the simple reason that his father who is no other than the sixth defendant was held to be in possession of the suit schedule property as a tenant. In such circumstances, this Court has no other option but to hold that the latter suit is hit by the principles of res Judicata. ( 34 ) THE earlier judgment of the Division bench of this Court is marked as Ex. B-27 in the latter suit. ( 35 ) CURIOUSLY, the Court below while answering Issue No. l held that the plaintiffs were not entitled for the relief of declaration that they were the owners of the suit land, but, however, while dealing with Issue No. 2 held that the plaintiffs are entitled to get their names mutated as pattadars in the revenue records after deleting the names of the defendants. ( 36 ) THE reasoning of the Court below to arrive at such a conclusion is as under: "the Honourable High Court did not touch the finding given by the learned Additional chief Judge, City Civil Court, in O. S. No. 62/ 72 that the plaintiffs shall be deemed to be in joint possession are entitled to l/4th share. The Hon ble High Court was under the wrong impression that the suit O. S. No. 62/ 72 was filed for declaration of title and injunction. " ( 37 ) THIS Court is totally at a loss to understand as to how the Court below can make an observation that the Division Bench of this Court was under the wrong impression that the suit was filed for declaration of title and injunction inasmuch as the suit was, in fact, filed for declaration of title and injunction. ( 38 ) THE Court below further proceeded with the following reasoning: "the Honourable High Court under the impression that the suit was filed for injunction against the tenant, who is in possession, dismissed the suit on that count. ( 38 ) THE Court below further proceeded with the following reasoning: "the Honourable High Court under the impression that the suit was filed for injunction against the tenant, who is in possession, dismissed the suit on that count. The learned Additional Chief Judge, City civil Court, passed a decree for partition when the suit was filed for declaration of title when the learned Additional Chief judge was of the opinion that the plaintiffs were not entitled to declaration of title to entire suit property, he could have dismissed the suit, even though the plaintiffs are entitled to l/4th share, with an observation that the plaintiffs could have filed a suit for partition. Instead of doing so, he passed a preliminary decree for partition. The Hon ble high Court held that such a decree cannot be supported. However, as already observed, the High Court did not reverse the finding of the Additional Chief Judge, City Civil court, that the plaintiffs are entitled to 14th share but not for declaration of title. Therefore, the finding of the learned additional Chief Judge, City Civil Court, that the plaintiffs got l/4th share in the suit properties and they shall be deemed to be in joint possession, merged in the judgment of the Hon ble High Court in CCCA No. l 15/ 76 has become final. " ( 39 ) THE above reasoning of the Court below is ludicrous in toto, and deserves severe condemnation with all the force at the command of this Court. When the division Bench of this Court dismissed the suit while reversing the judgment and decree passed by the Court below, it is totally indiscernible as to how the Court below can observe that the High Court did not touch the finding of the Court below in o. S. No. 62 of 1972 insofar as the entitlement of l/4th share to the plaintiffs. I am also at a loss to understand as to how the Court below could invoke the concept of merger in the above observations. ( 40 ) IT was further recorded by the Trial court as under: "if there was no partition of the Matruka properties of late Hussain Nawaz Jung as contended by the defendants, certainly the plaintiffs are entitled to l/4th share. ( 40 ) IT was further recorded by the Trial court as under: "if there was no partition of the Matruka properties of late Hussain Nawaz Jung as contended by the defendants, certainly the plaintiffs are entitled to l/4th share. " ( 41 ) PRECISELY, this was the relief granted by the Court below in O. S. No. 62 of 1972, which was reversed by the Division Bench of this Court earlier in CCCA No. 115 of 1976. In other words, the Trial Court in the latter suit also did the same mistake as was held by the Division Bench of this court in the earlier suit. Had the plaintiffs been aggrieved by the judgment and decree of the Division Bench of this Court, the same should have been challenged by the plaintiffs before the Apex Court. Instead, they resorted to file the latter suit again for the same relief against the same defendants and the said relief which was held to be not correct by the Division Bench of this court in the earlier suit, has once again granted by the Trial Court in the latter suit also. ( 42 ) THE contention of the learned senior Counsel appearing on behalf of the plaintiffs is that though the suit was filed for a particular relief, depending upon the facts and circumstances of the case, the Court has the power to mould the relief appropriately irrespective of the actual relief sought for in the interest of justice. ( 43 ) THERE is no dispute whatsoever about this proposition, which is well established. ( 44 ) BUT, the learned Senior Counsel proceeds further in submitting that in the earlier suit, the Trial Court did not do any mistake in passing a preliminary decree for partition to the extent of l/4th share to the plaintiffs in the suit schedule lands while holding that the plaintiffs were not entitled to the relief of declaration of title and possession. ( 45 ) FOR the reasons given in the earlier paragraph, the said submission is not available for the learned Senior Counsel inasmuch as the judgment and decree of the Trial Court in the earlier suit in O. S. No. 62 of 1972 were reversed by the Division Bench of this Court while allowing the appeal in c. C. C. A. No. 115 of 1976 filed by the defendants and the same have remained unchallenged and became final in the year 1983 itself. Only after a long lapse of about seven years, the latter suit came to be filed by the plaintiffs, that too, through the GPA holder. ( 46 ) AT the cost of repetition, the relief, which was granted by the Court below in the earlier suit in O. S. No. 62 of 1972, which was reversed by the Division Bench of this Court in C. C. C. A. No. 115 of 1976, is again made the subject-matter in the latter suit in O. S. No. 25 of 1991 and therefore as already concluded by this Court the latter suit is hit by the principles of "res Judicata", and hence the plea of the learned Senior counsel cannot be sustained. ( 47 ) THE inevitable corollary of the latter suit, being held to be hit by the principles of "res Judicata", would be that the relief granted by the Trial Court in the latter suit while answering Issue No. 2 in holding that the plaintiffs are entitled to get their names recorded as pattedars in the pahanies deleting the names of the defendants. ( 48 ) ONCE again, it is to be seen that this relief runs quite contrary to the answer given by the Court below on Issue No. l that the plaintiff were not entitled for declaration that they were the owners and possessors of the suit schedule lands. When once the relief of declaration of title over the suit schedule lands was denied under issue No. l, there is no valid reason for the court below to answer Issue No. 2 in favour of the plaintiffs, virtually nullifying the findings recorded on Issue No. l. ( 49 ) IN other words, the finding and the relief granted by the Court below on Issue no. l would virtually amounts to decreeing the suit. l would virtually amounts to decreeing the suit. ( 50 ) HENCE, the findings recorded by the Court below in answer to Issue Nos. l and 2 are incompatible to each other and the ultimate benefit would only enure to the plaintiffs notwithstanding the rejection of the relief of declaration of title and possession as negatived. ( 51 ) IT is also contended by the learned Senior Counsel appearing on behalf of the plaintiffs that when the suit in O. S. No. 17 of 1971 filed by the defendants was decreed ex parte through judgment and decree, dated 30-6-1971, against the plaintiffs, the plaintiffs have filed an application in IA no. 823 of 1975 to set aside the said judgment and decree passed ex parte and the same were set aside and that the suit was later dismissed for default. He also contends that since no appeal had been preferred challenging the judgment and decree in the said suit, the same have become final. This fact is inconsequential in the present context inasmuch as subsequently civil suits came to be filed and adjudicated by the Civil Court. ( 52 ) AT the cost of repetition, it is to be noted that the writ petition in W. P. No. 713 of 1999, which was filed by the plaintiffs, against the very same defendants, tenant and sharers, was also dismissed on merits with costs and since no appeal had been preferred, the judgment and decree in the said writ petition have become final. ( 53 ) IF viewed from a different angle, it is obvious that the plaintiffs never wanted partition since the second suit also was filed for declaration of title. In spite of the relief granted in the earlier suit for partition of l/4th share in the suit schedule properties which means the plaintiffs were not satisfied obviously for the relief of l/4th share in the suit schedule properties, by way of partition, but claimed title on the entire suit schedule properties which means further that the plaintiffs stuck to their guns. ( 54 ) THE relief granted now is, in fact, more than what was granted in the earlier suit. ( 54 ) THE relief granted now is, in fact, more than what was granted in the earlier suit. ( 55 ) THE dismissal of the latter suit and the relief granted in Issue No. 2 is incompatible, ( 56 ) FOR the aforesaid reasons, the appeal in A. S. No. 1025 of 1999 is dismissed with costs throughout and consequently the appeal in A. S. No. 1433 of 1998 is allowed with costs throughout. ( 57 ) THE alternative submission made by the learned Senior Counsel appearing on behalf of the plaintiffs is that this Court may grant liberty to the plaintiffs, who are appellants in AS No. 1025 of 1999, to file a fresh suit for partition. ( 58 ) THIS Court is not expressing any view on this submission and suffice it to say that it is for the plaintiffs, who are appellants in AS No. 1025 of 1999, to take any such legal course that is available to them under law.