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2013 DIGILAW 240 (AP)

C. Ramulu v. C. Anjaneyulu

2013-04-01

SAMUDRALA GOVINDARAJULU

body2013
Judgment : The plaintiff is the appellant herein. He filed the suit in the trial court for declaration of his ownership in the plaint schedule property and for delivery of possession of the same together with past and future mesne profits. The plaintiff’s claim was opposed by the defendant. After trial, the trial court decreed the suit; and on appeal by the defendant, the lower appellate Court allowed the appeal. Hence, the plaintiff approached this Court with this second appeal. 2) At the time of admission of this second appeal, the then learned Judge of this High Court framed the following substantial question of law for determination in this second appeal: “Whether the appellate Court is justified in reversing the judgment and decree of the trial Court only on the ground that the judgment and decree in an earlier suit filed by the plaintiff in O.S.No.163/1992 operate as res judicata, when it is the principle of law that the decree passed in an injunction suit does not operate as res judicata to a subsequent suit filed for declaration and for consequential relief, more so when there was no issue as to the principle of res judicata either before the trial court or before the appellate Court.” 3) The plaintiff and the defendant are brothers and they belong to scheduled caste. The plaintiff filed the suit on the ground that he is owner of the plaint schedule property. The plaint schedule property consists of house in weaker sections colony of Kurnool town in D.No.45/322 (old plot No.117) in an extent of 0.2¼ cents including open appurtenant site. It is the plaintiff’s case that the suit house and site was assigned to him by the Government in the year 1983 and that when the plaintiff wanted to construct another room in appurtenant open site and dug foundation pits, the defendant raised objection and threatened the plaintiff to stop the construction and therefore the plaintiff filed O.S.No.163/1992 in the District Munsiff Court, Kurnool. After it was dismissed, the plaintiff filed the present suit in a comprehensive manner. After it was dismissed, the plaintiff filed the present suit in a comprehensive manner. The defendant, on the other hand, contends that the previous suit was dismissed as the plaintiff failed to prove his title to and possession of the suit property and that the plaintiff is residing at Manchiryal since the past 18 years where he is working as Assistant Station Master in Railways and that the municipality is serving notices on the defendant relating to enhancement of tax etc.,. From the respective contentions of both the parties, the primary question in this case is whether the previous decision in O.S.No.163/1992 operates as res judicata herein. 4) The previous suit O.S.No.163/1992 was a simple suit for permanent injunction restraining the defendant from obstructing his constructions in the appurtenant CDEF site shown in the plaint plan therein and from interfering with his possession and enjoyment of the suit house and site. After trial, the previous suit O.S.No.163/1992 filed by the plaintiff against the defendant was dismissed. The previous suit is also relating to the self same property, which is the subject matter herein. Ex.B.4 is certified copy of Judgment and Ex.B.3 is certified copy of decree in O.S.No.163/1992. It is sought to be pointed out by the defendant that in Ex.B.1 deposition of the plaintiff as P.W.1 in the previous suit, the plaintiff admitted that he has no document to show his title for the suit land. Effect of Ex.B.1 will be considered subsequently, because the plaintiff herein filed certain documents to prove his right and title to the suit property. The lower appellate court held that Ex.B.4 judgment operates as res judicata herein, placing reliance on SulochanaAmma Vs. Narayanan Nair (1994) 2 Supreme Court Cases 14) of the Supreme Court. The question before the Supreme Court was on competency of the Court to try the subsequent suit. In that matter, the previous suit for injunction was tried and decided by the District Munsif Court having limited pecuniary jurisdiction, whereas the subsequent suit was filed for declaration of title and possession in the Subordinate Judge’s Courts having unlimited pecuniary jurisdiction. The Supreme Court considered explanation VIII together with main Section 11 and came to the conclusion that the said situation is also covered by explanation VIII, resulting in applicability of the doctrine of res judicata contained in Section 11 CPC. The Supreme Court considered explanation VIII together with main Section 11 and came to the conclusion that the said situation is also covered by explanation VIII, resulting in applicability of the doctrine of res judicata contained in Section 11 CPC. On facts, it was a case where the District Munsif Court in the previous suit for injunction decided the issue of title, after raising the said issue in the suit. Therefore, it was held that the decision as to title decided in the previous suit by the District Munsif Court in injunction suit operates as res judicata in the subsequent suit filed in the Subordinate Judge’s Court for the reliefs of declaration and possession. 5) It is contended by the appellant’s counsel that in Ex.B.4 Judgment of the previous suit there was neither an issue framed on title nor any finding given by that court on title for suit property and that therefore the previous judgment Ex.B.4 does not operate as res judicata herein. The only issue that was framed in Ex.B.4 Judgment is whether the plaintiff is entitled for permanent injunction as prayed for. After discussing the material on record, finally in Ex.B.4 judgment, it was held as follows: “In the instant case, the plaintiff failed to prove that he was in possession and enjoyment of the suit property on the date of filing of the suit. Therefore, I find the plaintiff is not entitled for the relief of the permanent injunction as prayed for. I find this issue against the plaintiff.” 6) It is pointed out that there is no definite finding given by the Court in Ex.B.4 Judgment on the question of title and that the Court only found that the plaintiff who was not in possession of the suit property on the date of filing of that suit, was not entitled for relief of permanent injunction. In the previous suit covered by Ex.B.4 judgment, none of the parties filed any documents of title for the suit property. The entire discussion in Ex.B.4 judgment was on possession of the suit house and ultimate finding therein was also on possession only and the said finding resulted in negativing permanent injunction to the plaintiff therein. In the previous suit covered by Ex.B.4 judgment, none of the parties filed any documents of title for the suit property. The entire discussion in Ex.B.4 judgment was on possession of the suit house and ultimate finding therein was also on possession only and the said finding resulted in negativing permanent injunction to the plaintiff therein. While discussing evidence of the plaintiff as PW.1 therein, it was observed in Ex.B.4 judgment: “PW.1 admitted in his cross examination that there are no proceedings issued by the Government to show that the suit house was allotted to him. He further stated he gave an application to the Government for granting the house to him. But PW.1 did not choose to file the copy of his application nor sent for his application from the Revenue Department. Therefore, there is no documentary evidence to show that the plaintiff schedule house was allotted to PW.1 in the year 1983”. Thus, there was no definite finding as to the plaintiff’s title to the suit property in the previous suit covered by Ex.B.4. There was neither an issue on title in the previous suit nor a finding on title of the plaintiff in the previous suit covered by Ex.B.4. Therefore, it cannot be said that Ex.B.4 judgment operates as res judicata in the present suit filed by the plaintiff for the reliefs of declaration of his title to the suit property and for possession of the same. 7) The appellant’s counsel placed reliance on Williams v Lourdusamy (AIR 2008 Supreme Court 2212) of the Supreme Court wherein it was observed: “12. As a matter of fact even such an issue was not framed. The High Court, therefore, in our opinion posed unto itself a wrong question. In a suit for permanent injunction, the Court had rightly proceeded on the basis that on the date of the institution of the suit, the first respondent was in possession of the disputed land or not. It was not required to enter into any other question. It, in fact did not. 13. In a suit for permanent injunction, the Court had rightly proceeded on the basis that on the date of the institution of the suit, the first respondent was in possession of the disputed land or not. It was not required to enter into any other question. It, in fact did not. 13. It is one thing to say that a person is in possession of the land in suit and it is another thing to say that he has a right to possess.” The Supreme Court held finally that in such a situation, the previous judgment in permanent injunction suit will not be a bar for declaration of title and recovery of possession. Therefore, I find on the substantial question of law framed herein that the lower appellate Court is not justified in reversing the judgment and decree of the trial Court on the ground that Ex.B.4 judgment in the earlier suit O.S.No.163 of 1992 operates as res judicata. I further find that having regard to issues framed and findings given in O.S.No.163 of 1992, Ex.B.4 judgment does not operate as res judicata in the present suit. 8) In the present suit proceedings, the plaintiff filed Ex.A.1 original receipt dated 27.10.1995 issued by Kurnool District Scheduled Caste and Tribes Co-operative House Building Society Limited (in short, the Society) acknowledging receipt of Rs.8,534.40 ps. from the plaintiff for the suit site. Ex.A.4 is no dues certificate of the same date issued by Deputy Registrar/Secretary of the Society in favour of the plaintiff to the effect that no amount is due from the plaintiff towards value of the suit property. Subsequently, the plaintiff mortgaged the same in favour of the Society vide Ex.A.2 registered mortgage deed. The plaintiff also filed Ex.A.3 receipt dated 23.09.1996 issued by Kurnool Municipal Corporation in his name for the suit building. Even though the plaintiff as PW.1 in O.S.No.163 of 1992 stated as in Ex.B.1 to the effect that there are no proceedings issued by the Government to show that the suit house was allotted to him, now in the present suit, the plaintiff though did not file proceedings of the Government allotting the suit house to him, the plaintiff has filed Exs.A.1 to A.4 to show that the suit house was allotted to him by the Society and that the suit house is registered in his name in municipal records and he paid taxes therefor. Simply because the plaintiff who is working in the Indian Railways at a very long distant place and allowed the defendant who is his own brother to reside in the suit property, the defendant cannot claim right or title for the suit property to himself. Exs.B.6 to B.8 ration card and identity cards of the defendant and his wife show the defendant’s residence in the suit house. They will not clothe the defendant with any right or title to the schedule property. In view of my discussion of the material on record and my finding on the substantial question of law, judgment of the lower appellate Court cannot stand. 9) In the result, the second appeal is allowed with costs through out setting aside decree and judgment passed by the lower appellate Court and granting decree in favour of the plaintiff/appellant as prayed for in the plaint.