( 1 ) THE unsuccessful plaintiffs in O. S. No. 135/89 on the file of subordinate Judge, Karimnagar, preferred the present Appeal. The 1st plaintiff/1st appellant herein died and his legal representatives were brought on record. Likewise, respondents 17 to 19 were brought on record as legal representatives of the deceased 14th respondent and respondents 25 to 27 were brought on record as the legal representatives of the deceased 13th respondent. The suit was filed for partition and separate possession of open land in s. No. 1169 of Jyothinagar, Mukkarampura, Karimnagar, admeasuring Acs. 1-34 guntas within the specified boundaries. The learned Judge on the respective pleadings of the parties having settled the Issues recorded the evidence of PW-1 to PW-3, dw-1 to Dw-3, marked Exs. A-1 to A-16 and also Exs. B-1 to B-17 and dismissed the suit principally on two grounds - one being that on the strength of Ex. A-1, the agreement, without enforcing the same the suit for partition cannot be maintained and yet another ground that the prior proceedings and the Judgments and decrees made therein would operate as res judicata. Aggrieved by the same, this Appeal is preferred. ( 2 ) SUBMISSIONS of Sri M. V. Bharathi, Counsel representing the appellants : sri Bharathi, the learned Counsel representing the appellants made the following submissions. The learned Counsel had pointed out that the twin grounds on which the relief was negatived were that the suit was based on an agreement and without enforcing the same the suit claiming the relief of partition cannot be maintained and the other that the same is barred by res judicata, cannot be sustained in the light of the findings made inter-parties in L. P. A. No. 338/88. The learned Counsel also would maintain that the evidence of PW-1 to PW-3 and exs. A-1 to A-16 had not been appreciated in proper perspective. The learned counsel also had emphasized on Ex. A-7 sale deed which was not questioned and in view of Ex. A-7, the Counsel would maintain that it can be inferred that at least ex. A-1 was acted in part. The learned Counsel also had taken this Court through the evidence available on record and would submit that DW-3 had supported the case of the appellants/plaintiffs in toto. A-7 sale deed which was not questioned and in view of Ex. A-7, the Counsel would maintain that it can be inferred that at least ex. A-1 was acted in part. The learned Counsel also had taken this Court through the evidence available on record and would submit that DW-3 had supported the case of the appellants/plaintiffs in toto. The learned Counsel also pointed out that the extents involved in the prior proceedings and in the present suit are different and this is an independent cause of action based on the agreement ex. A-1 and hence the suit is perfectly maintainable. The learned Counsel also had taken this Court through the contents of the relevant notices in general and ex. A-13 in particular and had pointed out to certain admissions. The Counsel also pointed out that the revenue records would go to show that these properties stand in the name of Narsaiah, the father of DW-3. The learned Counsel also would maintain that in the light of the specific grounds raised in the Appeal, the Judgment and decree of the trial Court cannot be sustained and the suit may have to be decreed as prayed for. ( 3 ) SUBMISSIONS of Sri P. V. Vidyasagar : Sri P. V. Vidyasagar, the learned counsel representing Sri K. Rajareddy, the Counsel on record representing the legal representatives of 13th respondent/13th defendant, had taken this Court through the order made in L. P. A. No. 338/88 and also had pointed out to the proceedings O. S. No. 183/69, A. S. No. 27/71 and S. A. No. 329/78 and also to o. S. No. 185/75 and A. S. No. 1418/81 and would explain that the principal question which is being agitated by the appellants in fact had been agitated in the prior proceedings and hence the said findings definitely would operate as res judicata. The learned Counsel also had placed strong reliance on Ex. B-2, the deposition of a dead person which is consistent with the pleading and the counsel also would maintain that the same could be looked into being a prior statement made by a dead person within the meaning of Section 33 of the Indian evidence Act 1872. While making further submissions in elaboration the learned counsel had explained the relationship between the parties and how the affected parties are non-parties to Ex. While making further submissions in elaboration the learned counsel had explained the relationship between the parties and how the affected parties are non-parties to Ex. A-1 and how they are not bound by the same and also commented about the role played by PW-3 who is no doubt no more. The counsel also had taken this Court through the pleadings of the parties and the evidence available on record. Further, the Counsel would contend that absolutely there is no cause of action and Ex. A-1 which came into existence even prior to disposal of L. P. A. No. 338/88 could not form the basis for a separate cause of action so as to maintain this action. ( 4 ) SUBMISSIONS made by Sri Satyanarayana Reddy : Sri Satyanarayana Reddy, the learned Counsel representing the respondents 15 and 16/defendants 15 and 16 had explained the dates and the events which had taken place in seriatim and the binding nature of Ex. A-1 on non-parties and the findings recorded in the prior proceedings and the finality of the said proceedings in relation to the question involved and virtually adopted the submissions made at length by Sri P. V. Vidyasagar referred to supra. ( 5 ) HEARD the Counsel on record. ( 6 ) IT is no doubt true that certain of the parties died and their legal representatives were brought on record. ( 7 ) THE parties hereinafter would be referred to as arrayed in the original suit for the purpose of convenience. Pleadings of the parties : ( 8 ) AVERMENTS made in the plaint : The plaintiffs pleaded in the plaint as hereunder :"plaintiffs are co-owners in the land mentioned in Schedule A admeasuring acs. 2-19 gts. in S. No. 1169. There was earlier dispute in between the plaintiffs and defendants 1 to 10 which was carried to High Court. The Hon ble High Court by order dated 23-9-1989 passed in L. P. A. No. 338/88 found that defendants 1 to 10 had entered into compromise which has to be acted upon and therefore at least compromise must be recorded. It was further observed that the fact remains that defendants 2 and 3 therein are not parties to the compromise. The Hon ble High Court by order dated 23-9-1989 passed in L. P. A. No. 338/88 found that defendants 1 to 10 had entered into compromise which has to be acted upon and therefore at least compromise must be recorded. It was further observed that the fact remains that defendants 2 and 3 therein are not parties to the compromise. If there is any cause of action because of the compromise and if defendants 1 and 2 have nothing to do with the property it is open to the plaintiffs to file a fresh suit agitating their rights on the basis of the said compromise. The filing of the suit on the basis of the compromise cannot be said to be barred by res judicata because it is a different cause of action. The compromise was entered into on 11-7-1988 and the same is filed before the Court. The plaintiffs are therefore entitled to file the suit for partition and separate possession of the property in the schedule A into equal shares. The plaintiffs and defendants 1 to 10 have jointly owned and possessed in the schedule A land in equal shares as mentioned in the compromise dated 23-9-1982 read with the affidavit of M. Mallaiah dated 4- 7-1988. The defendants 1 to 10 and the 2nd defendant in the duly capacity as general Power of Attorney executed a sale deed on 3-3-1983 bearing document no. 119/83 and another sale deed dated 10-1-1983 admitting the joint possession and rights in the schedule property. The sale produce of the bits is a binding evidence and recognition of equal rights and the joint possession. Therefore the land is liable to be divided into two equal parts and to be allotted to the plaintiffs put together and another half in favour of defendants 1 to 10 put together. The plaintiffs exercised their rights through out and sold part of the schedule property. The defendants collected money for 19 guntas and now the plaintiffs reliably learnt that defendants 1 to 10 had disposed of the portion of land to a practicing Advocate at Karimnagar. The plaintiffs also disposed of two bits of land to defendants 11 and 12 and such lands must be allotted to the respective shares of the concerned parties. The rest of the land available is about Acs. 1-34 guntas after deducting 6 guntas of land sold by consent. The plaintiffs also disposed of two bits of land to defendants 11 and 12 and such lands must be allotted to the respective shares of the concerned parties. The rest of the land available is about Acs. 1-34 guntas after deducting 6 guntas of land sold by consent. The plaintiffs are entitled to get 37 guntas of land. The plaintiffs therefore submitted that the portion of d be allotted to the plaintiffs and a preliminary decree be passed. "written statement filed by 14th defendant : It was pleaded that the plaintiffs were unsuccessful in earlier suit O. S. No. 38/61 on the file of Subordinate Judge, karimnagar, O. S. No. 183/69 on the file of District Munsif, Karimnagar, o. S. No. 185/75 on the file of Subordinate Judge, Karimnagar and having been unsuccessful they started fresh litigation in respect of the same property. It was also pleaded that the property covered by the said three suits and the present suit is one and the same. It was also further pleaded that the lands are in S. No. 1169 of Karimnagar and the litigations in relation thereto were carried in by way of Appeals to the High Court. It was also pleaded that the plaintiffs have colluded with the 2nd defendant who is the attorney of defendants 1 and 3 to 10 and had brought into existence a false agreement dated 23-9-1982 with a view to deprive the rights of defendants 13 and 14. It was also further pleaded that the plaintiffs claim of co-ownership had been negatived by in the earlier suits. The observations made by the Hon ble High court in the unregistered L. P. A. are untenable. The agreement dated 23-9-1982 are false and vexatious and no sane person will enter into such an agreement admitting the plaintiffs co-ownership when their rights were finally negatived. Defendants 13 and 14 and myakala Narsaiah, elder brother, filed O. S. No. 183/69 claiming that the property is ancestral property and they are entitled for 1/3rd share and the said suit was decreed on 31-1-1978 and those findings wee confirmed in S. A. No. 329/78. In another suit O. S. No. 187/75 filed by the present plaintiffs against the defendants 1 to 10 and 13 and 14 (defendants 13 and 14 were defendants 1 and 2 in that suit) in respect of the land in suit Survey no. In another suit O. S. No. 187/75 filed by the present plaintiffs against the defendants 1 to 10 and 13 and 14 (defendants 13 and 14 were defendants 1 and 2 in that suit) in respect of the land in suit Survey no. 1169 similar pleas as that of O. S. No. 183/69 wee raised and the same were held as barred by res judicata by virtue of the findings in O. S. No. 183/69. In the circumstances defendants 1 and 10 cannot enter into any agreement with the plaintiffs denying the rights of the defendants 13 and 14 in the suit land and creating rights in their favour and in favour of plaintiffs. The suit agreement is therefore illegal and unenforceable in law even if it is true. Defendants 13 and 14 are not parties to the alleged agreement and the present suit to enforce the said agreement to which they are not parties is not binding on them. The alleged agreement is insufficiently stamped and cannot create any right in favour of the plaintiffs. The allegation that plaintiffs are the joint owners and in possession of the suit schedule land is not correct. It was also further pleaded that a part of the land was lost in the Municipal road and the land was sold to Hangu Gangaiah through unregistered sale deed dated 29-11-1967 and defendants 13 and 14 suffered a decree for perpetual injunction in O. S. No. 573/81 dated 5-9-1981 on the file of District Munsif, Karimnagar. The land covered by the said Municipal road had been divided into three equal shares among Myakala narsaiah and defendants 13 and 14. Myakala Narsaiah got his share towards north. On the spot gettus or borders with old trees are formed after and the death of Narsaiah his heirs divided the separate shares into plots and sold them. The allegation that the sale deeds dated 3-3-1983 and 10-1-1983 are the undisputed documents of ownership and the possession are not true and correct. Defendants 13 and 14 are not parties to the said document and it does not affect the rights of defendants 13 and 14. The said documents were executed while a. S. No. 1418/81 was pending before the Hon ble High Court and are hit by Section 52 of the Transfer of Property Act. Defendants 13 and 14 are not parties to the said document and it does not affect the rights of defendants 13 and 14. The said documents were executed while a. S. No. 1418/81 was pending before the Hon ble High Court and are hit by Section 52 of the Transfer of Property Act. The rights of the parties were finally decided on 5-4-1988 in A. S. No. 1418/81. The allegation that the plaintiffs collected money for 19 guntas of land is not correct. The plaintiffs have not complied with the directions passed in S. A. No. 329/78. The plaintiffs have absolutely no right and the suit is liable to be dismissed. The plaintiffs being out of possession cannot file the suit for partition without claims the relief of recovery of possession. Written statement filed by defendants 15 and 16 : It was pleaded that the claim based on agreement which is an unregistered cannot create any rights. It was also further pleaded that the plaintiffs are not entitled to sue without lawful rights. These defendants pleaded that they are the successors in title from myakala Narsaiah (father of defendants 1 to 10) and defendants 13 and 14 adopted the written statement of 14th defendant. It was further pleaded that these defendants 15 and 16 purchased 107 sq. yards in Sy. No. 1169 from Anugu Rajeshwar reddy, A. Sammi Reddy and A. Venkateshwar Reddy through registered sale deed dated 10-4-1989 and with the permission of the Municipality, Karimnagar, the defendants started construction and now they are in the roof level. At this stage they did not stop the work. The vendors of defendants 15 and 16 are the sons and legal heirs of late A. Gangaiah s/o. Mallaiah. The said A. Gangaiah purchased 10 guntas of land in the suit Survey no. 1169 from Myakala Narsaiah, myakala Mallaiah and Myakala Lingaiah on 29-11-1967 for a consideration of rs. 10,000/- and was in possession of the property. The said Gangaiah filed a suit for declaration of title and perpetual injunction basing on the sale deed dated 29-11-1987 and O. S. No. 573/83 was decreed on 5-9-1981. The mutation was also effected in the Faisal Patti and pahanies. It was further pleaded that in view of the Judgment in O. S. No. 185/75 it is claimed that the plaintiffs are out of possession. The mutation was also effected in the Faisal Patti and pahanies. It was further pleaded that in view of the Judgment in O. S. No. 185/75 it is claimed that the plaintiffs are out of possession. The Judgments also clearly shows that the plaintiffs have no right. Therefore they are not entitled for claiming any partition. The two vendors of A. Gangaiah are having 2/3 share in the suit schedule property. The suit is not maintainable without valid title or possession. The suit was filed in collusion with the 2nd defendant with the plaintiffs. The 2nd defendant and his brother and sisters have got 1/3rd share in the entire S. no. 1169 and they sold their share to third persons before the year 1981 and now they want to claim from the shares of their two uncles by colluding with the plaintiffs. ( 9 ) ISSUES settled by the trial Court : The trial Court settled the following issues :1. Whether the plaintiffs are entitled for preliminary decree as prayed for ? 2. Whether the plaintiffs are entitled for final decree as prayed for ? 3. Whether claim of co-ownership of plaintiffs in respect of suit land is barred by res judicata by virtue of Judgment in O. S. No. 185/75 ? 4. Whether plaintiffs are barred to file fresh suit as contended by defendants 13 and 14 ? 5. Whether agreement dated 23-9-1982 is unenforceable in law and cannot create any rights in favour of plaintiffs and not binding on defendants 13 and 14 ? 6. Whether court fee paid is insufficient ? 7. Whether plaintiffs have no valid title and possession over the suit land, as such they are not entitled for partition as contended by defendants 15 and 16 ? 8. Whether defendants are entitled for compensatory costs as prayed for 9. To what relief ? ( 10 ) ORAL and documentary evidence recorded by the trial Court: