Judgment : (Appeal under Section 96 of C.P.C., against the Judgment and decree dated 31-12-1992 in O.S.No. 15 of 1986 on the file of the Court of the II Additional Subordinate Judge, Kakinada.) 1. Heard Sri K.V.Subrahmanya Narusu, learned counsel, representing Smt. Umadevi Manchala, learned counsel for the appellants and Sri J.Aswini Kumar, learned counsel for respondent Nos.13 to 15, who are the legal representatives of the deceased 1st respondent. 2. None appears for the other respondents in spite of service of notice. 3. This appeal is filed challenging the judgment and decree dt.31-12-1992 in O.S.No.15 of 1986 of the II Additional Subordinate Judge, Kakinada. 4. The 1st appellant is the plaintiff in the suit. Pending appeal, 1st appellant died and his legal representatives have been brought on record. 5. Sooranna, Jaganna, Ramanna, Venkataratnam and Narayanamurthy are brothers and are residents of Jaggammagaripeta in Samalkot Municipal limits. Sooranna and Narayanamurthy went out of the family earlier to 1940. By 1940, Jaganna was the eldest member of the remaining joint family. There was a partition of the joint family properties between Ramanna, Jaganna, Venkataratnam and their brother-in-law Noone Achanna who was staying with them. In that partition, an extent of Ac.0.20 cts in Sy. No.5/5 and an extent of Ac.2.60 cts in Sy. No.7 of the said village jointly fell to the share of Jaganna and Ramanna. Old Sy.No.5/5 correspondence to present Sy. No.41/2 while old Sy. No.7 correspondence to present Sy. No.52/2. 6. Plaintiff is the son of Jaganna and defendants 1 and 2 are sons of Ramanna. 7. D-1 filed O.S.No.544 of 1974 on the file of the Additional District Munsif, Kakinada for permanent injunction against plaintiff herein and his brothers in respect of the house site of Ac.0.70 cts. No.41/2 while old Sy. No.7 correspondence to present Sy. No.52/2. 6. Plaintiff is the son of Jaganna and defendants 1 and 2 are sons of Ramanna. 7. D-1 filed O.S.No.544 of 1974 on the file of the Additional District Munsif, Kakinada for permanent injunction against plaintiff herein and his brothers in respect of the house site of Ac.0.70 cts. He alleged that there was a partition between Jaganna and Ramanna; that in the said partition, the southern half portion for this entire area of Ac.2.80 cts fell to the share of Jaganna and the northern half portion fell to the share of Ramanna; that on the death of Jaganna, the plaintiff in O.S.No.15 of 1986 was in possession of the share of Jaganna by having arrangement with his brothers; and that D-1 and his elder brother Venkatarao divided the northern half belonging to their father Ramanna and constructed thatched huts therein; that there was a wall partitioning the site of D-1 from that of the plaintiff; and on 08-05-1974, the plaintiff trespassed into the site of D-1 and removed the thatched hut therein. 8. The plaintiff contested the suit contending that he got only the extent of Ac.0-20 cts in Sy. No.5/5 belongs to the joint family of Ramanna and Jaganna after the partition in 1940; that the extent of Ac.2.60 cts. in Sy. No.7 was taken by the family on lease from one Nagisetty Kodandaramaiah by Jaganna originally; after discovering that the said Nagisetti Kondandaramaiah had no title to this extent and consequently, the lease is not valid in law and the property belonged to the Maharajah Pithapuram, Jaganna paid Rs.50/- to Maharajah of Pithapuram and obtained patta for the extent of Ac.2.60 cts in Sy. No.7; therefore, this extent exclusively belongs to Jaganna; Ramanna had interest only in Ac.0.20 cts in Sy. No.5/5 and he has no interest in Ac.2.60 cts in Sy. No.7, it being the exclusive property of Jaganna; that in December, 1955, Jaganna allotted to Ramanna, on his request, Ac.0.05 cts in sy. No.5/5 and Ac.1.80 cts in Sy. No.7 and Ramanna had executed a letter dt.01-01-1956 accepting the same; that plaintiff and his brother were only entitled to Ac.0.85 cts of land and not as alleged in the plaint; and so the suit be dismissed. 9. No.5/5 and Ac.1.80 cts in Sy. No.7 and Ramanna had executed a letter dt.01-01-1956 accepting the same; that plaintiff and his brother were only entitled to Ac.0.85 cts of land and not as alleged in the plaint; and so the suit be dismissed. 9. D-1 filed a rejoinder contending that his father Ramanna had a half share in Sy.Nos.5/5 and 7; that a mortgage deed was also executed by Ramanna and D-1 in favour of Ratnavathi, wife of the plaintiff at the instance of the plaintiff and Jaganna on 24-06-1954 which was also attested by Jaganna and Venkata Rao; and that the letter dt.01-01-1956 is a forgery. After trial, the suit was dismissed by judgment and decree dt.30-12-1978 (Ex.A-19). 10. An appeal A.S.No.151 of 1979 was filed against the said judgment by D-1 herein before the Subordinate Judge, Kakinada. The said appeal was allowed on 13-12-1982. Ex.A-20 is the certified copy of the judgment therein. 11. The appellate Court disbelieved the case of plaintiff herein and held that Ac.2.80 cts was joint property of Jaganna and Ramanna and Ex.X-1 mortgage deed executed by Ramanna on behalf of D-1 herein and his brothers in favour of plaintiff’s wife on 23-06-1954 corroborates the said fact. It rejected the plea of the plaintiff that the execution of the document was by way of mistake and held that Jaganna and Venkataratnam would not have attested it under a mistake. It therefore rejected the plea of the plaintiff that Ac.2.60 cts in Sy. No.7 is the self acquired property of Jaganna by reason of acquisition of the same by paying Nazarana to Maharajah of Pithapuram after partition with his brothers. It held that the plaintiff, who was claiming possession of the property through Jaganna, is bound by the admission made by Jaganna. It therefore held that Ramanna got half share in Sy. Nos.5/5 and 7 i.e. Ac.1.40 cts in all and not Ac.0.85 cts alone as contended by the plaintiff. It held that Jaganna might have paid nazarana to the Maharajah of Pithapuram and obtained patta for Sy. No.7 not only for his benefit but also for the benefit of Ramanna and that he must have paid the nazarana from the income of the property jointly possessed by him and Ramanna. It also held that the letter dt.01-01-1956 alleged to have been executed by Ramanna in favour of Jaganna is not proved. No.7 not only for his benefit but also for the benefit of Ramanna and that he must have paid the nazarana from the income of the property jointly possessed by him and Ramanna. It also held that the letter dt.01-01-1956 alleged to have been executed by Ramanna in favour of Jaganna is not proved. It therefore concluded that D-1 had established that his father Ramanna has got half share in Sy. Nos.5/5 and 7 comprising Ac.1.40 cts. After considering the other evidence on record, it held that there was a compound wall in between the properties of the plaintiff and D-1 and that the property to the southern side of that compound wall belonged to D-1 while that on the northern side belonged to Jaganna. It therefore held that D-1 is in possession of the plaint schedule property and is entitled to relief of injunction. It took note of the fact that the plaintiff admitted that there was a partition between his father and Ramanna and that the plaintiff is in possession of the property up to the compound wall of the building let out by him to the State Bank of India. By implication it therefore held that Ramanna and Jaganna had got divided and their respective children i.e D-1 and the plaintiff were in possession of their respective shares. 12. This judgment became final as there was no further appeal against it by the plaintiff herein. 13. However, subsequently the plaintiff filed present suit O.S.No.15 of 1986 practically taking same pleas as in the written statement filed by him in O.S.No.544 of 1974 and contending that he is entitled for declaration of title regarding items 1 to 3 of plaint schedule property and for their possession after evicting D-1 and his brother. In the alternative, he also sought for partition of the plaint schedule properties. Inter alia he also contended that the total extent of the joint property of Ramanna and Jaganna was not Ac.2.80 cts but only Ac.2.55 cts, that items 1 to 3 belongs to plaintiff and he was in possession of the same, but in view of the judgment in A.S.No.151 of 1979, he is filing this suit to recover possession from the defendants. 14. It is admitted that items 1 and 2 of this suit form part of the plaint schedule in O.S.No.544 of 1974. 15. 14. It is admitted that items 1 and 2 of this suit form part of the plaint schedule in O.S.No.544 of 1974. 15. D-1 and D-2 filed separate written statements contending that the judgment in A.S.No.151 of 1979 operates as res judicata and bars the present suit. They also disputed the plaint plan and raised pleas similar to the pleading raised by D-1 herein/plaintiff in O.S.No.544 of 1974. In addition, they also pleaded that items 1 and 2 were in possession of D-1 and item-3 was in possession of D-2. They contended that the total extent of the joint family property as between Ramanna and Jaganna was only Ac.2.80 cts and not Ac.2.55 cts as alleged. They also contended that the question of title to items 1 and 2 had already dealt with directly and substantially in O.S.No.544 of 1974 on account of which, this suit is barred by the principles of res judicata. D-1 also pleaded that he has sold away Ac.0.70 cts of land forming part of his share under two separate sale agreements dt.15-01-1986 and the purchasers were in possession of the same and they ought to have been impleaded. 16. By judgment and decree dt.31-12-1992, the Court below dismissed the suit. It held that the judgment in O.S.No.544 of 1974 operates as res judicata since in that suit it was held that the possession of the half share of Ramanna was with D-1 and it was not open to the plaintiff to again reagitate the issue about the title to the half share of Ramanna in the extent of Ac.2.80 cts. It held that even though O.S.No.544 of 1974 and A.S.No.151 of 1979 only dealt with the grant of relief of injunction to D-1 as against the plaintiff, still it would operate as res judicata since the fact that Ramanna had exclusive title as against Jagaanna in respect of the plaint schedule property therein was directly and substantially in issue; that it was held that they were not co-owners and because they were not co-owners, the relief of injunction was granted in favour of D-1 against the plaintiff. It therefore held that the plaintiff is not exclusive title holder of items 1 to 3. It therefore held that the plaintiff is not exclusive title holder of items 1 to 3. It also held that since 1958 both plaintiff and defendants were enjoying sites in their respective possession as their exclusive property and only on account of that reason, D-1 and D-2 had further partitioned their joint share and were enjoying it accordingly. It further held that if the entire extent of Ac.2.80 cts still remained joint, the entire land can be divided equally between Jaganna and Ramanna and their respective successors, but part of it alone cannot be divided. It also held that although an advocate commissioner was appointed to survey the plaint schedule property, a particular parcel of land, alleged to have been acquired by the Government, was not measured and its extent was not known. For this reason, the trial Court held that it is difficult to say whether the total extent of joint property originally was Ac.2.80 cts or less and therefore it is difficult to say whether there was a short fall in the share of the plaintiff. It held that when there was already a partition between the parties as per the finding in A.S.No.151 of 1979 and the parties were in possession of their respective shares, there is no question of a fresh partition. Therefore, it rejected the alternative relief of partition sought by the plaintiff. 17. Challenging the same this appeal is filed. 18. The learned counsel for the appellants contended that the Court below erred in holding that the judgment in A.S.No.151 of 1979 operates as res judicata and bars the appellants/plaintiffs from claiming title to items 1 to 3 of the pliant schedule. Relying on Sajjadanashin Sayed Md. B.E.Edr. (D), By LRs. Vs. Musa Dadabhai Ummer and Others (2000) 3 S.C.C. 350 ), Madhvi Amma Bhawani Amma and Others Vs. Kunjikutty Pillai Meenakshi Pillai and Others (2000) 6 S.C.C. 301 ) and Ramchandra Dagdu Sonavani (dead), By L.Rs. and Others Vs. Vithu Hira Mahar (dead) By L.Rs. and Others (2009) 10 S.C.C. 273 ),he contended that the scope of A.S.No.151 of 1979/O.S.No.544 of 1974 was very limited as O.S.No.544 of 1974 was only a suit for injunction and the finding on title therein is only incidental and not the basis for grant of injunction to D-1 as against the plaintiff in respect of items 1 and 2. and Others (2009) 10 S.C.C. 273 ),he contended that the scope of A.S.No.151 of 1979/O.S.No.544 of 1974 was very limited as O.S.No.544 of 1974 was only a suit for injunction and the finding on title therein is only incidental and not the basis for grant of injunction to D-1 as against the plaintiff in respect of items 1 and 2. He therefore contended that in the absence of framing of an issue as to title in O.S.No.554 of 1974, the finding as to title in that suit would not operate as res judicata since such a finding on title was not necessary for deciding that suit/appeal. Alternatively, he also contended that even if the decision therein operates as res judicata only as regards items 1 and 2, it would not so operate as regards item-3. He therefore contended that at least as regards item-3, the trial Court should have decreed the suit. 19. The learned counsel for the respondents refuted the said contentions and contended that the finding in A.S.No.151 of 1979 as to title was necessary to decide the said suit because exclusive title of Ramanna vis-à-vis Jaganna was decided therein. On the basis of a conclusion that there was a partition in between them, the relief of injunction was granted; and it could not have been granted otherwise as against a co-owner in favour of another co-owner. He also contended that the plaintiff had failed to show that item-3 of the plaint schedule property is in existence and therefore, the plaintiff should not be granted any relief in respect of the said item. He also pointed out that item-3 of the plaint schedule is contiguous to the property admittedly allotted to Ramanna and if items 1 and 2 are held to belong to D-1, there is no access to item-3 from the property for the plaintiff as can be seen from the plaint plan itself. He also contended that even item-3 was found to be part of the share allotted to Ramanna in the partition between Ramanna and Jaganna, and so question of fresh partition of item-3 does not arise. 20. I have noted the submissions of both sides. 21. The points for considerations are that: (i) Whether the decision in A.S.No.151 of 1979 would operate as res judicata and bar the present suit filed by the appellants/plaintiffs? 20. I have noted the submissions of both sides. 21. The points for considerations are that: (i) Whether the decision in A.S.No.151 of 1979 would operate as res judicata and bar the present suit filed by the appellants/plaintiffs? (ii) If so, whether as regards item-3, the appellants-plaintiffs are entitled to any relief? 22. Point No.1:-O.S.No.544 of 1974, out of which A.S.No.151 of 1979 was arisen, was a suit for injunction filed by D-1 against the plaintiff. The said suit was dismissed on 30-12-1978 by the I Additional District Munsif, Kakinada. A.S.No.151 of 1979 filed against was allowed on 13-12-1982. It was specifically held therein that Ramanna and Jaganna are having joint property of Ac.2.80 cts comprising Ac.2.60 cts in Sy. No.7 and Ac.0.20 cts in Sy. No.5/5; that they got these joint properties in the partition of 1940 between themselves and Venkataratnam and Noone Achanna; and thereafter, mortgage was also executed by D-1 and Ramanna and his other children in favour of the plaintiff’s wife on 23-06-1954. Therefore, the contention of the plaintiff herein (as D-1 in O.S.No.544 of 1974) that Ac.2.60 cts in Sy. No.7 was the exclusive property of Jaganna was rejected. It was further held in that judgment that since 1958 Jaganna and Ramanna families have divided this Ac.2.80 cts into two shares and a compound wall also had been erected between them. Taking note of the partition between D-1 and his brother Venkatarao, it held that the partition would not have happened if Jaganna and Ramanna had not divided the properties. Since D-1 was in possession of the share allotted to Jaganna, it held that he was entitled to an injunction as against the plaintiff and for the said finding, it relied on the admission of the plaintiff of the partition between Jaganna and Ramanna. 23. I n Sajjadanashin Sayed Md. B.E.Edr. (1 supra), the Supreme Court held that only if a matter was in issue is ‘directly and substantially’ in issue in a prior litigation and decided against a party, it would operate as res judicata in a subsequent proceeding. It also held that if a matter is only collaterally or incidentally in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantial in issue. It also held that if a matter is only collaterally or incidentally in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantial in issue. It held that the test is “if the issue was necessary to be decided for adjudicating on the principal issue” and only if the answer is ‘yes’, it would have to be treated as directly and substantially in issue. It also held that if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. It held: “24……………As stated in Mulla, it all depends on the facts of each case and whether the finding as to title was treated as necessary for grant of an injunction in the earlier suit and was also the substantive basis for grant of injunction. In this context, we may refer to Corpus Juris Secundum (Vol.50, para 735. p. 229) where a similar aspect in regard to findings on possession and incidental findings on title were dealt with. It is stated: “Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title.” 24. In Madhvi Amma Bhawani Amma (2 supra), the Supreme Court held that in order to apply the general principle of res judicata, the Court must first find, whether an issue in a subsequent suit was directly and substantially in issue in the earlier suit or proceedings, was it between the same parties, and was it decided by such Court. It observed: “Thus there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision. So if no such issue is raised and if on any other issue, incidentally any finding is recorded it would not come within the periphery of the principle of res judicata.” 25. It observed: “Thus there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision. So if no such issue is raised and if on any other issue, incidentally any finding is recorded it would not come within the periphery of the principle of res judicata.” 25. The learned counsel for the appellants contended that there has to be an issue framed on the point of title in the earlier suit and since there was no such issue on the question of title, the earlier judgment would not operate as res judicata. 26. In my opinion, such contention is not tenable and the only requirement is whether the issue of title was raised and decided in the earlier suit and not whether the issue was framed specifically. I n Commissioner of Endowments and Others Vs. Vittalrao and Others ( 2005 (4) S.C.C 120 ), the Supreme Court rejected such a plea and held that the test is whether the Court considers the adjudication of the issue, though not formally framed, material and essential for its decision. If the issue of title was raised in the earlier suit and the basis of the grant of relief of injunction is the finding on title, then certainly the said finding would operate as res judicata in the latter suit for declaration of title. 27. In Madhvi Amma Bhawani Amma (2 supra), the question was whether the decision in a proceeding for grant of succession certificate under the provisions of the Indian Succession Act, 1925 would operate as res judicata in a subsequent suit wherein title was pleaded. Relying on Section 387 of the said Act (which specifically provided that a decision with regard to the grant of succession certificate would not bar the trial of same question in any suit subsequently between the parties), the Supreme Court held that principle of res judicata would not apply. This decision therefore would not apply to the facts of the case. 28. In Ramchandra Dagdu Sonavani (3 supra) the Supreme Court reiterated the principle that normally in a suit for injunction, issue would be confined to possessory aspect but if the right to possession of property cannot be decided without deciding the title to the property and if such issue is decided in favour of the party, in a subsequent litigation, it would operate as res judicata. 29. Having perused the pleadings in O.S.No.544 of 74, which have been marked as Ex.A-17, the judgment therein (Ex.A-19) and the judgment in A.S.No.151 of 1979 (Ex.A-20), I have no doubt in my mind that the finding of title of Ramanna/D-1 herein was necessary for deciding A.S.No.151 of 1979 and for grant of relief of injunction to D-1 as against the plaintiff, who was the son of Jaganna. Ramanna and Jaganna were admittedly brothers and in that partition of 1940, they had jointly got the extent of Ac.2.80 cts. They each therefore had a share of Ac.1.40 cts. In A.S.No.151 of 1974, it was categorically held that there was a partition between Ramanna and Jaganna and that both were in possession of their respective shares. Since they were no longer co-owners, D-1 was held entitled to relief of an injunction against the plaintiff. If there was no finding on partition in the earlier suit, then D-1 and plaintiff would have been co-owners and D-1 would not have been able to get an injunction against the plaintiff (since one co-owner cannot get injunction against another co-owner). Therefore, the finding that the property was the exclusive property of D-1 as a successor of Ramanna was necessary for grant of relief of injunction to D-1 as against the plaintiff. Therefore in the subsequent suit for title filed by the plaintiff, the said finding operates as res judicata. In this view of the matter, it has to be held that the plaintiff is not entitled to any relief as regards items 1 and 2 which are admittedly subject matter of A.S.No.151 of 1979/O.S.No.544 of 1974. 30. Issue No.2:-The plaintiff contended that the extent was not Ac.2.80 cts but was only Ac.2.55 cts. Although he got an advocate commissioner appointed in the suit to be assisted by a qualified surveyor, only certain portions mentioned in plan attached to the plaint were measured and one important portion ‘DEFG’ was not measured. Whether it was done inadvertently or deliberately one cannot say, but the trial Court held that unless that portion is also measured, it is difficult to say whether the total extent is Ac.2.80 cts or Ac.2.55 cts. Whether it was done inadvertently or deliberately one cannot say, but the trial Court held that unless that portion is also measured, it is difficult to say whether the total extent is Ac.2.80 cts or Ac.2.55 cts. Therefore, the case of the plaintiff that because there is a short fall in the extent as far as his share is concerned, and it is only Ac.1.20 cts, the balance should be also granted to him, cannot be accepted. 31. That apart item-3 appears to be located contiguous to the property allotted to D-1 even according to the plaint plan. It is separated from the plaintiff’s property by items 1 and 2 which intervene between item-3 and the plaintiff’s share, as per the plaint plan. If items 1 and 2 do not belong to the plaintiff, then neither would item-3, for the reason that it is unlikely that the property to which there is no access from the plaintiff’s property, would be given to the plaintiff. 32. Moreover even according to the plaintiff, there was a partition previously between Ramanna and Jaganna and the respective parties are in possession of their shares. So there cannot be a fresh partition of a part of the same property. Therefore, I am of the view that the plaintiff has failed to prove that item-3 of the plaint schedule was exclusive property of the plaintiff or in the alternative that it remained joint and was undivided in the partition which took place in 1958. Therefore, the plaintiff cannot get a decree for this item also. 33. For all the above reasons, I do not find any merit in the appeal and the same is accordingly dismissed. No costs. 34. As a sequel, the miscellaneous petitions pending, if any, shall stand closed.