JUDGMENT : V. SRINIVAS, J. 1. This regular appeal under Section 96 Code of Civil Procedure is directed against the decree and judgment in O.S. No. 23 of 1987 dated 10.02.1997 on the file of the Court of learned Subordinate Judge, Narsapur. 2. The defendant Nos. 1 to 3, before the trial Court, is the appellants. The respondent Nos. 1 to 15 herein is the plaintiff and defendant Nos. 4 to 17 respectively. 3. Respondent No. 16 herein is added as legal heir of deceased 1st respondent/plaintiff. Respondent No. 17 is impleaded as party, vide order dated 25.08.2010 in A.S.M.P. No. 169 of 2010. 4. The respondent No. 1/plaintiff instituted the suit for declaration of title and share in the plaint schedule property in pursuance of the sale certificate dated 13.09.1976 issued in E.P. No. 251 of 1971 in Kakinada Sub Court in O.S. No. 254 of 1969 on the file of Sub Court at Narsapur to grant a consequential decree of vacant possessions of 1/3rd share of the plaintiff by evicting the defendants, for mesne profits and costs. 5. For the sake of convenience, the parties hereinafter referred to as they arrayed before the trial Court. 6. Before adverting to the material and evidence on record and nature of findings in the judgment of the trial Court, it is necessary to scan through the case pleaded by the parties in their respective pleadings. 7. The case of the plaintiff/respondent No. 1 in brief in the plaint was as follows: (i) Late Karumuri Venkata Ramanadham and late Karumuri Nageswara Rao are brothers and sons of late Venkata Narasimham. The defendant Nos. 1 and 2 are the sons, 3rd defendant is wife and defendant Nos. 4 and 5 are the daughters of late Karumuri Venkata Ramanadham. Defendant Nos. 6 and 7 are the sons, 8th defendant is the wife and defendant Nos. 9 to 11 is the daughters of late Karumuri Nageswara Rao. (ii) Late Karumuri Venkata Ramanadham and his brother late Nageswara Rao were members of the joint family. Karumuri Venkata Ramanadham being eldest brother was managed the Hindu undivided joint family. (iii) The joint family of Venkata Ramanadham and Nageswara Rao own extensive movable and immovable properties. The plaint schedule properties are one of the joint family properties. (ii) Late Karumuri Venkata Ramanadham and his brother late Nageswara Rao were members of the joint family. Karumuri Venkata Ramanadham being eldest brother was managed the Hindu undivided joint family. (iii) The joint family of Venkata Ramanadham and Nageswara Rao own extensive movable and immovable properties. The plaint schedule properties are one of the joint family properties. (iv) Late Karumuri Nageswara Rao filed a partition suit in O.S. No. 26 of 1968 on the file of Sub-Court at Narsapur against his brother Manager Venkata Ramanadham and another, seeking partition of family properties, to allot one such share which is legitimately entitled to, for profits and rendition of accounts and for possession of his share of property. (v) The brother-in-law of late Venkata Ramanadham and Nageswara Rao by name Uppala Venkata Narasimha Nooka Raju also filed a suit in O.S. No. 6 of 1975 on the file of Sub Court, Narsapur for declaration, his title, possession and for profits. As Uppala Venkata Narasimha Nooka Raju died and his legal representatives were brought on record in O.S. No. 6 of 1975. At the request of both parties, the suit in O.S. No. 26 of 1968 and O.S. No. 6 of 1975 clubbed together, after a joint trial, the court passed decrees on 31.07.1978 in the said suits. (vi) It is stated that late Venkata Ramanadham borrowed amounts from Mandhatha Chittenna after executing a promissory note. The said Chittenna filed suit in O.S. No. 254 of 1969 on the file of Sub-Court, Kakinada against him and after contest the suit was decreed directing Venkata Ramanadham to pay the decretal amount with subsequent interest and costs. (vii) The said Chittenna got his money decree in the said suit and transferred the same to Narsapur for execution against Venkata Ramanadham by filing E.P. No. 251 of 1971 in O.S. No. 254 of 1969 on the file of Sub-court, Narsapur, brought the plaint schedule property for sale in E.P. No. 251 of 1971 on the file of Sub-Court at Narsapur to the extent of 1/3rd undivided share of late Venkata Ramanadham in the plaint schedule properties. The Sub-Court, Narsapur auctioned the right of 1/3rd undivided interest of late Venkata Ramanadham in the plaint schedule property held on 11.03.1974 and 22.03.1974 and the plaintiff figured as the highest bidder in the Court auction and purchased 1/3rd undivided share of late Venkata Ramanadham in plaint schedule properties for Rs.9,700/- for item No. 1 and Rs.27,200/- for item No. 2, total sum of Rs.31,400/- on 11.03.1974 and 22.03.1974 respectively and the plaintiff deposited the entire sale amount and also money towards the General Stamps for engrossing the sale certificate, as per the provisions of law. (viii) One A. Venkataraidu, Advocate of Narsapur was appointed as Receiver to manage the properties in O.S. No. 26 of 1968 on the file of Sub Court, Narsapur. (ix) It is stated that late Venkata Ramanadham filed E.A. No. 473 of 1975 in E.P. No. 251 of 1971 in O.S. No. 259 of 1969 on the file of Sub Court, Kakinada seeking to set aside the sale under Order 21 Rule 90 read with Section 47 and Section 151 C.P.C. against the decree holder Chittenna and A.Venkata Raidu, Receiver in O.S. No. 26 of 1968 on the file of Sub Court, Narsapur and after due enquiry and contest the E.A. No. 473 of 1975 in E.P. No. 251 of 1971 on the file of Subordinate Court, Narsapur was dismissed on merits with costs on 07.09.1976 and late Venkata Ramanadham raised an objection in E.A. No. 473 of 1975 in E.P. No. 251 of 1971 in O.S. No. 254 of 1969 of Sub Court, Kakinada alleging that the extent of his 1/3rd undivided share which was sold in the Court auction was not correctly noted. The Sub-Court at Narsapur in its order dated 07.09.1976 categorically held in E.A. No. 473 of 1975 in E.P. No. 251 of 1971 all particulars of properties except the extent are correctly noted in the Isthihar and from the boundaries of the properties could be easily be identified, it cannot be said that simply because there is some variation about the actual extent of the properties, when door numbers, assessment numbers and boundary prevails, though the extent is not correctly noted. The same mistake has been repeated in the sale certificate dated 13.09.1976. The same mistake has been repeated in the sale certificate dated 13.09.1976. The findings in E.A. No. 473 of 1975 in E.P. No. 251 of 1971 in O.S. No. 254 of 1969 operates as res-judicata and the defendants are estopped from questioning the same and the doctrine of res-judicata held in paragraph No. 8 of its order dated 07.09.1976 in E.A. No. 473 of 1975 in E.P. No. 251 of 1971 on the file Subordinate Court, Narsapur. (x) The 1/3rd undivided share of late Karumuri Venkata Ramanadham in the plaint schedule properties being the subject matter of E.P. No. 251 of 1971, late Venkata Ramanadham filed an appeal in C.M.A. No. 64268 of 1977 on the file of High Court of Andhra Pradesh and obtained interim stay of operation of the orders in E.A. No. 473 of 1975 on the file of Subordinate Court, Narsapur in C.R.P. No. 6995 of 1978. Thus, the plaintiff could not take further steps by virtue of the orders of the High Court and the said C.M.A. filed by the late Venkata Ramanadham was dismissed in the year, 1980 and the plaintiff has become the absolute owner of 1/3rd undivided share of late Venkata Ramanadham in the plaint schedule properties by virtue of the sale certificate dated 13.09.1976. (xi) It is stated that the plaint schedule property is the subject matter of the partition suit in O.S. No. 26 of 1968, he being the auction purchaser of 1/3rd undivided share of late Venkata Ramanadham that might be partitioned between Karumuri Venkata Ramanadham and his brother Nageswara Rao. (xii) The plaintiff impleaded as 16th defendant in O.S. No. 26 of 1968 on the file of Subordinate Court, Narsapur as per orders in I.A. No. 692 of 1976 and his sale certificate was marked as Ex.B.135 in O.S. No. 26 of 1968 and the Court held in paragraph No. 120 of its judgment dated 31.07.1978 in O.S. No. 26 of 1968 under issue No. 40 that the properties purchased by this plaintiff under sale certificate and other persons who purchased the properties from late Venkata Ramanadham are so allotted to him towards the 1/3rd share by working out equities, so that the purchasers under the above sale deed may not suffer. (xiii) It is also stated that in an Appeal No. 340/1979 preferred against the decree and judgment in O.S. No. 26 of 1968, the plaintiff is one of the respondent. The said appeal is still pending. Venkata Ramanadham and his brother Nageswara Rao died. The defendant Nos. 1 to 11 being their legal representatives, impleaded as parties to the appeal. Hence, this Suit is filed against the legal representatives of late Ramanadham and Nageswara Rao as defendant Nos. 1 to 11 because they are proper and necessary parties. As the appeal is still pending in High Court, the plaintiff could not take steps for constructive possession by metes and bounds of the 1/3rd undivided share purchased in the Court auction. The plaintiff filed E.A. No. 168 of 1985 in E.P. No. 251 of 1971 in O.S. No. 254 of 1969 on the file of Sub Court, Kakinada for symbolic delivery and the petition is still pending. The plaintiff is the owner with valid title, he is entitled to seek declaration of his 1/3rd right and title in the plaint schedule property, for partition, possession and for profits and that the time taken by late Karumuri Venkata Ramanadham by filing E.A. No. 473 of 1975 in E.P. No. 251 of 1971 on the file of Sub Court, Narsapur for adjudication of the issue and also the time taken by the High Court for adjudication of the issue in-question in C.M.A. No. 64268 of 1977 which was dismissed in the year, 1980 have to be excluded for the purpose of limitation in filing the suit. (xiv) Therefore, the suit is within time. The plaintiff also entitled to claim damages for use and occupation from defendant Nos. 12 to 17, they have come into possession of the plaint schedule property during the pendency of the legal proceedings and they are liable to be evicted from the schedule property for delivering vacant possession to the plaintiff to the extent of 1/3rd undivided share. The plaintiff also entitled to claim damages for use and occupation from defendant Nos. 12 to 17, they have come into possession of the plaint schedule property during the pendency of the legal proceedings and they are liable to be evicted from the schedule property for delivering vacant possession to the plaintiff to the extent of 1/3rd undivided share. (xv) The suit is filed for declaration of plaintiff’s 1/3rd share and title in the plaint schedule property as per the sale certificate dated 13.09.1976 issued in E.P. No. 251 of 1971 in O.S. No. 254 of 1969 on the file of trial Court to partition the plaint schedule property in three equal shares by metes and bounds and to deliver one such share to the plaintiff with vacant possession by evicting the defendants and for mesne profits. The name of the plaintiff is mutated in Municipal records, being the joint possession of his 1/3rd undivided share. Hence, the suit. 8. The appellants/defendant Nos. 1 to 3 denying all the allegations in the plaint and contending in the written statement, which was adopted by the 4th defendant, as follows: (i) The suit is not maintainable under law and the plaint schedule is not correct. The suit is bared by limitation and the plaintiff ought to have taken action from the date of sale certificate dated 13.09.1976. In A.S. No. 340 of 1979, the plaintiff is not a necessary party and hence not added as a party to the appeal and the said appeal is pending on the file of High Court does not stand in any way for the plaintiff to pursue his remedies available herein under the sale certificate. There is no stay in the said appeal. (ii) The plaintiff filed E.A. No. 68 of 1985 in E.P. No. 251 of 1971 in O.S. No. 254 of 1969 for symbolical delivery of his 1/3rd undivided share purchased in Court auction only but not in the plaint schedule property. When the plaintiff is advised to file E.A. No. 68 of 1985 for delivery of property and filed such E.A. and is still pending, the suit itself is bad since the prayer is for declaration and possession as the plaintiff himself feels doubt about his rights. The E.A. No. 473 of 1975 is not tried ultimately under order 21 rules 90 C.P.C. as Karumuri Venkata Ramanadham could not furnish security. The E.A. No. 473 of 1975 is not tried ultimately under order 21 rules 90 C.P.C. as Karumuri Venkata Ramanadham could not furnish security. The grounds mentioned to set aside the sale, under Order 21 Rule 90 C.P.C. were not enquired into and there is no estoppel for the defendants to raise any objections. The only point that was decided in E.A. No. 473 of 1975 as mentioned in paragraph No. 5 of its order dated 07.09.1976 is whether there was any illegality in publication of conducting of the sale only. There is no question of doctrine of res-judicata. (iii) The sale certificate dated 13.09.1976 shows that in item No. 1 the plaintiff is entitled to 33 2/3 square yards i.e. 1/3rd share in 200 square yards and item No. 2 is 260 square yards i.e. 1/3rd share in 720 square yards but the sale certificate does not show the extent of the plaint schedule and E.A. No. 68 of 1985 filed by the plaintiff cuts the very case of the plaintiff and more particularly the plaint schedule. The sale list filed in E.P. No. 251 of 1971 in O.S. No. 254 of 1969 show the same property shown in the sale certificate. (iv) The plaint schedule property does not tally either with the sale certificate or with the sale list and hence the plaintiff is not entitled to any claim over the plaint schedule property. The suit is barred by limitation and the plea of the plaintiff that time taken up to 1980 as pleaded in paragraph No. 12 cannot be taken into consideration in deciding the period of limitation. (v) The plaintiff being Municipal Councilor might have managed same things in the Municipal records as it cannot be done without title or possession to the property. The suit itself is filed for declaration of title and delivery of possession, then it is apparent, there is no basis to the Municipality to mutate plaintiff’s name that too when the matter is subjudice. There is manipulation and no weight need be given. (vi) The cause of action alleged in the plaint is not correct. The valuation of the suit is not correct and also the plaint schedule is not correct. If the valuation is paid as per sale certificate the suit should have been filed in District Munsif’s Court but not in this Court. (vi) The cause of action alleged in the plaint is not correct. The valuation of the suit is not correct and also the plaint schedule is not correct. If the valuation is paid as per sale certificate the suit should have been filed in District Munsif’s Court but not in this Court. The plaintiff increased the yardage, valuation and filed the suit before the trial Court. The defendants are not liable for any mesne profits or future or past profits or any interest. (vii) The decree is only against the deceased Venkata Ramanadham in his individual capacity and the decree is not against the Manager of the joint family or that there was no decree against these defendants. Hence, prays to dismiss the suit with costs. 9. The 14th defendant denying the allegations in the plaint and contending in the written statement as follows: (i) He is neither a necessary nor a proper party to this suit and he is not in possession of the plaint schedule properties. (ii) The plaintiff has to put strict proof of the allegations made in the plaint. He paid rents to Sri A. Venkatarayudu, Advocate as Receiver to manage the property in O.S. No. 26 of 1968, for the 16th godown, which is now situated in 7th ward of Palakol Municipality. He vacated the said 16th godown on 01.01.1986 and 6th defendant took possession of the same. Furthermore, as per the accounts, the owner of the said godown has to pay an amount of Rs.568-14 p.s. and in spite of several demands the said amount was not paid to him by the legal representatives of Karumuri Venkata Ramanadham and Nageswara Rao. The suit is barred by time. (iii) The plaintiff is not entitled to seek any relief whatsoever against him. He was unnecessarily dragged to the Court by the plaintiff knowing fully well that he is not in possession of any of the suit properties as tenant. Hence, prays to dismiss the suit with costs. 10. The defendant No. 17 denying the allegations in the plaint and contending in the written statement as follows: (i) The suit is not maintainable against this defendant as it is being not a party to the earlier litigations referred in the plaint. The principle of lis pendens is not applicable to the circumstances of this case. 10. The defendant No. 17 denying the allegations in the plaint and contending in the written statement as follows: (i) The suit is not maintainable against this defendant as it is being not a party to the earlier litigations referred in the plaint. The principle of lis pendens is not applicable to the circumstances of this case. If at all the plaintiff will be entitled to the relief of accounting against co-sharers. The claim of interest at 18% per annum upon the mesne profits is unlawful and untenable. (ii) This defendant never occupied any portion of the plaint schedule property. This firm is a tenant in respect of the suit property during 01.04.1979 and 22.09.1983. There are no arrears of rent due from this defendant during said period. This defendant has nothing to do with the suit property since 22.09.1983. (iii) This defendant is neither a necessary nor a proper party to this suit and it is unnecessarily impleaded to this suit with the knowledge that it was not at all in possession of the suit property. Hence, prays to dismiss the suit with costs. 11. Defendant Nos. 5 to 13 and 15 have not filed any written statement and they remained ex-parte even before the trial Court. Defendant No. 16 is a firm and later it was closed and did not contest the suit before the trial Court. 12. On these pleadings, the trial Court settled the following issues for trial: “1. Whether the suit is barred by limitation? 2. Whether the suit is not correctly valued and the court fee paid is not correct? 3. Whether the plaintiff is entitled for declaration of his 1/3rd title and share in the plaint schedule property and that for vacant possessions of the said 1/3rd share in the plaint schedule property as sought for in the plaint? 4. Whether defendant Nos. 1 to 3 are not liable for any mesne profits or future or past profits or any interest? 5. Whether 14th defendant is not in possession of any of the suit properties as tenant? 6. Whether 17th defendant never occupied any portion of the plaint schedule property? 7. To what relief?” 13. At the trial, on behalf of the plaintiff, PWs. 1 to 3 were examined, while relying on Exs.A.1 to A.8 and X.1 to X.4, in support of his contentions. On behalf of the defendants, DWs. 6. Whether 17th defendant never occupied any portion of the plaint schedule property? 7. To what relief?” 13. At the trial, on behalf of the plaintiff, PWs. 1 to 3 were examined, while relying on Exs.A.1 to A.8 and X.1 to X.4, in support of his contentions. On behalf of the defendants, DWs. 1 and 2 were examined, Exs.B.1 to B.19 were exhibited. 14. Basing on the material and evidence, trial Court came to a conclusion that the plaintiff is entitled 1/3rd undivided share of late K.Ramanadham in the plaint schedule property in pursuance of Ex.A.1 sale certificate subject to the proceedings of the final decree in I.A. No. 86 of 1990 in O.S. No. 26 of 1968 on the file of trial Court, thereby declared that the plaintiff has got title to 1/3rd share of late K.Ramanadham in the plaint schedule property, and there is no need to pass a separate preliminary decree for partition of 1/3rd share of late Karumuri Ramanadham in this suit and the equities be worked out and adjusted only in O.S. No. 26 of 1986 which is pending on the file of trial Court and in which the plaintiff is 20th respondent also entitled to vacant possession of the same, thus, decreed the suit with costs. 15. It is against this decree and judgment, the appellants/defendant Nos. 1 to 3 preferred this appeal. 16. Heard Sri Rayaprolu Srikanth, learned counsel for the appellants/defendant Nos. 1 to 3 and Sri M.V.S. Suresh Kumar, learned counsel representing Sri Aravala Srinivasa Rao, learned counsel for the respondent No. 1/plaintiff. 17. At this juncture, it is required to be noted that in the cause title of the appeal, the respondent Nos. 2 to 15 herein are shown as not necessary parties in this appeal. Subsequently, the appellants filed an application in A.S.M.P. No. 863 of 2017 to restore the respondent Nos. 2 to 15 on the file of this appeal. After considering the submissions made by the learned counsel, the said application was dismissed, vide order dated 31.01.2018 by this Court. 18. Aggrieved by the same, the appellants herein preferred an appeal before the Hon’ble Supreme Court, vide Special Leave to Appeal No. 10769 of 2018, but the same was also dismissed and upheld the orders passed by this Court, vide order dated 27.07.2021. Thereby, it become final. 19. 18. Aggrieved by the same, the appellants herein preferred an appeal before the Hon’ble Supreme Court, vide Special Leave to Appeal No. 10769 of 2018, but the same was also dismissed and upheld the orders passed by this Court, vide order dated 27.07.2021. Thereby, it become final. 19. It is against this backdrop, the following points, which arise for determination need consideration now: 1. Whether the appeal is maintainable by excluding respondent Nos. 2 to 15, who are said to be necessary, proper and effected parties to the lis? 2. Whether the findings and reasons recorded by the trial Court regarding entitlement of the plaintiff towards 1/3rd share in the plaint schedule properties are valid and warrants any interference by this Court in the exercise of its appellate power and jurisdiction? 3. Whether the learned Trial Court Judge is justified in refusing the contentions raised by the appellants/defendant Nos. 1 to 3? 4. Whether the plaintiff is entitled for vacant possession of the said 1/3rd share in the plaint schedule properties of late Ramanadham? 5. To what relief? 20. POINT No. 1: Now in deciding this point, the undisputed facts, which are borne out from the record is required to be noted that initially the present appeal was filed by the appellants in the year, 1997 itself by showing the respondent Nos. 2 to 15 are not necessary parties to this appeal, thereby, not even sent any notice to them. However, subsequently, in the year 2017, they filed an A.S.M.P. No. 863 of 2017 urged to restore the appeal against the respondent Nos. 2 to 15 in the present appeal and to issue notice to them. The said application was dismissed, vide order dated 31.01.2018 by considering the contentions of both parties. Against the same, as stated supra, the appellants preferred an appeal before the Supreme Court, vide Special Leave to Appeal No. 10769 of 2018, before the Hon’ble Supreme Court and the same was also dismissed, vide order dated 27.07.2021, and upheld the orders of this Court. Thereby, it became final. 21. It is also not in dispute that respondent Nos. 2 and 3/defendant Nos. 4 and 5 are none other than the daughters of late Karumuri Venkata Ramanadham, respondent Nos. 4 and 5/defendant Nos. 6 and 7 are the sons, respondent No. 6/defendant No. 8 is wife and respondent Nos. 7 to 9/defendant Nos. Thereby, it became final. 21. It is also not in dispute that respondent Nos. 2 and 3/defendant Nos. 4 and 5 are none other than the daughters of late Karumuri Venkata Ramanadham, respondent Nos. 4 and 5/defendant Nos. 6 and 7 are the sons, respondent No. 6/defendant No. 8 is wife and respondent Nos. 7 to 9/defendant Nos. 9 to 11 are the daughters of late Karumuri Nageswara Rao and obviously they have got right over the undivided joint family properties being legal representatives, but they were shown as respondents and while presenting the appeal it is mentioned as they are not necessary parties to the appeal and no notice was ordered. 22. On this point, Sri Rayaprolu Srikanth, learned counsel for the appellants/defendant Nos. 1 to 3 submits that there is no negligence or wanton on the part of the appellants for not taking steps to issue notice to the respondent Nos. 2 to 15 and showing them as not necessary parties; that even the appellants are not bound to implead all the persons, who were parties to the original suit, no prejudice would be caused to them even if they were not shown as necessary parties and sent notice in the appeal, as the appellants are only aggrieved parties to the judgment of the trial Court. 23. He further submits that the appellants can always independently pursue the appeal which will not hit by any misjoinder or non-joinder issue because the appellants as a co-owner can always without the co-owner claim the reliefs. In support of his arguments, he relied upon a judgment of the Delhi High Court in Mohit Kumar v. Quality Printers Pvt. Limited, C.M. (M) No. 957 & 17629 of 2014 decided on 29.10.2014. 24. He further submits that where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, anyone of the plaintiffs or of the defendants may appeal from the whole decree and thereupon the appellate Court may reverse or vary the decree in favour of defendants. In that context, he relied upon a judgment of the Hon’ble Supreme Court in Banasari v. Ram Phal, AIR 2003 SC 1989 . 25. He further submits that the all the rules of procedure are the handmaid of justice. In that context, he relied upon a judgment of the Hon’ble Supreme Court in Banasari v. Ram Phal, AIR 2003 SC 1989 . 25. He further submits that the all the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the facts remains that the object of prescribing procedure is to advance the cause of justice. No party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Procedural and technical hurdles shall not be allowed to come in the way of the Court while doing substantial justice. On that, he relied upon a judgment of the Hon’ble Supreme Court in Sathyanath v. Sarojamani, (2022) 7 SCC 644 wherein at paragraph No. 20 held as follows: “20. This Court in Sugandhi v. P. Rajkumar held that if the procedural violation does not seriously cause prejudice to the adversary party, Courts must lean towards doing substantial justice rather than relying upon procedural and technical violations. It is not to be forgotten that litigation is nothing but a journey towards truth which is the foundation of justice and the Court is required to take appropriate steps to thrash out the underlying truth in every dispute. It was held as under: “9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3).” 26. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3).” 26. He further submits that the first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law and he relied upon a judgment of the Hon’ble Supreme Court in United Engineers & Contractors v. Secretary to Government of Andhra Pradesh, (2013) AIR (SC) 2239 wherein at paragraph No. 19 held that “.....the Appellate court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the Appellate Court. Sitting as a Court of appeal, it was the duty of the High Court to deal with all the issues and the evidence lead by the partition before recording its findings......” 27. He also relied upon another judgment of the Hon’ble Supreme Court in Somakka v. K.P. Basavaraj, (2022) AIR (SC) 2853 to deal with the scope and powers of the First Appellant Court and held at paragraph No. 29.4 that “.....It is settled law that an appeal is a continuation of the original proceedings. The appellate court’s jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the Trial Court are open for re-consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court’s findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties........” 28. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court’s findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties........” 28. In support of the said proposition, he is also relied upon another judgment of the Hon’ble Supreme Court in Nemai Chandra Dey v. Prasanta Chandra, (2022) 2 DNJ 710 wherein it was held that “it is the bounden duty of the first appellate Court to deal with appeals within the confines of law and keeping in mind the principles which have been enumerated under order XLI Rule 31.” 29. By placing reliance on the above pronouncements, Sri Rayaprolu Srikanth, learned counsel for the appellants/defendant Nos. 1 to 3 submits that even the respondent Nos. 2 to 15 not shown as necessary parties to the appeal, this Court being first Appellate Court can decide the appeal on its own merits and the same is not a hurdle to this Court to decide the matter on merits. 30. As against the same, Sri M.V.S. Suresh Kumar, learned counsel representing Sri Aravala Srinivasa Rao, learned counsel for the respondent No. 1/plaintiff, vehemently contends that the appeal pending before this Court itself is not maintainable, in as much as the defendant Nos. 4 to 11, who are necessary parties and who were originally made as defendants in the suit, were given up and no notice was given to them; that they were shown as not necessary parties to this appeal; that if the necessary parties are not impleaded, the appeal cannot be entertained, as the infirmity is fatal and on that score alone the appeal ought to have been rejected in limine, even without going into the merits of the case. In support of the above said contentions, learned Senior Counsel relied on judgment of this Court in Dodla Chinnabbai Reddy v. Dodla Kumar Swamy Reddy, 2002 SCC Online AP 813 wherein referred judgments of the Hon’ble Supreme Court in Kanakarathanammal v. Loganatha, AIR 1965 SC 271 and State of Punjab v. Nathu Ram, AIR 1962 SC 9 and held at paragraph Nos. 28 to 31 as follows: “28. 28 to 31 as follows: “28. Another important aspect to be noted is, whether simply because a party remained ex-parte in the suit, could it be said that all his rights and claims in the suit are wiped off. Further the concept of setting a party to the suit ex-parte is unknown to CPC. The expression “setting ex-parte” only denotes that all further proceedings by the Court shall proceed ex-parte. It is also an established principle that the party to the suit who was set ex-parte can always participate in subsequent proceedings in the suit at any time including the appeal which is consequential or continuation of the suit proceedings. In other words, if a party remains ex-parte, it does not mean that all his rights and claims are totally erased or all the doors for him are totally shut once for all. 29. On the other hand the learned Counsel for the appellant- 1st defendant heavily relied on the judgment of the Apex Court in Kanakarathanammal's case (supra). The facts of this case in brief are necessary to be stated to the extent relevant. It was a case where in a suit for partition, two brothers who were alive, were not added as necessary parties. There a specific plea was taken that the property found to belong to the appellants mother therein and under the relevant law the appellants and her brothers would be entitled to succeed to the property and a specific issue with regard to the maintainability of the suit on account of non-joinder of parties was also framed. Eventually the suit was dismissed on the ground that the necessary parties namely the other two brothers therein were not made parties to the suit. In that context Their Lordships of the Supreme Court held that the non-joinder of all the parties who would be entitled to succeed to the property was vital to the suit. Ultimately it was held that the suit itself shall get defeated on account of non-joinder of necessary parties. 30. The learned Counsel for the appellant - 1st defendant relied on another judgment of the Supreme Court reported in State of Punjab's case (supra), which arose under Punjab Land Acquisition Act, wherein the appeal against a party stood abated when no application to bring on record the legal heirs of the deceased was made within the statutory period. 30. The learned Counsel for the appellant - 1st defendant relied on another judgment of the Supreme Court reported in State of Punjab's case (supra), which arose under Punjab Land Acquisition Act, wherein the appeal against a party stood abated when no application to bring on record the legal heirs of the deceased was made within the statutory period. While dealing with the disputed question, Their Lordship held at paragraph Nos. 6 and 7 as under: .... Courts will not proceed with an appeal: (a) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent. (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court. (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed. (7) There has been no divergence between the Courts about the Court's proceeding with the appeal between the respondents other than the deceased respondent, when the decree in appeal was not a joint decree in favour of all the respondents. The abatement of the appeal against the deceased respondent, in such a case, would make the decree in his favour alone final, and this can, in no circumstances, have a repercussion on the decision of the controversy between the appellant and the other decree-holders or on the execution of the ultimate decree between them. 30. From both the judgments cited above, relied on by the learned Counsel for the respondent, it is clear that if necessary parties are not impleaded, the appeal cannot be entertained. The Hon'ble Supreme Court has given some guidelines when the appeal cannot be entertained and they are emphasized above. Therefore, coming to the present case, the appellant has himself impleaded defendants 4 and 5 in the appeal, and no doubt they remained ex-parte. But as discussed above, that will not disentitle them to participate in future proceedings that are to say in an appeal, which is a continuation of the suit. Therefore, coming to the present case, the appellant has himself impleaded defendants 4 and 5 in the appeal, and no doubt they remained ex-parte. But as discussed above, that will not disentitle them to participate in future proceedings that are to say in an appeal, which is a continuation of the suit. If the final decision is given without their presence and if subsequently they come and agitate the issue in separate proceedings, taking the ground that they were not impleaded in the appeal and that they have no notice, then that would result in giving divergent decisions, which the Supreme Court in the decision cited in (supra) had deprecated. Therefore, the two decisions cited by the learned Counsel for the 1st defendant - appellant squarely apply to the present set of facts.” 31. He further submits that in the absence of the certain defendants who have been deleted from the array of parties will prevent the Court from hearing the appeal against the other defendants. In this regard, he relied upon a judgment of the Hon’ble Supreme Court in Sunkara Lakshminarasamma v. Sagi Subba Raju, (2019) 11 SCC 787 wherein it was held that “.....the Court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole.......The absence of certain defendants who have been deleted from the array of parties along with the absence of legal representatives of a number of deceased defendants will prevent the court from hearing the appeals as against the other defendants. We say so because in the event of these appeals being allowed as against the remaining defendants, there would be two contradictory decrees in the same suit in respect of the same subject-matter.......” 32. He further submits that when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed and that the Court will not proceed with an appeal when the success of the appeal may lead to the Court’s coming to a decision which be in conflict with the decision between the appellant and the other defendants, who are shown as not necessary parties to the lis. In support of the same, he relied upon a judgment of the Hon’ble Supreme Court in Budh Ram v. Bansi, (2010) 11 SCC 476 wherein referred the judgments of Apex Court in Ramagya Prasad Gupta v. Murali Prasad, (1973) 2 SCC 9 and Constitutional Bench judgment in Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272 and held at paragraph Nos. 14, 15 and 18 held as follows: 14. In Ramagya Prasad Gupta v. Murli Prasad, this Court examined the same issue in a case of dissolution of a partnership firm and accounts and placed reliance upon two judgments referred to immediately hereinabove and held as under: “16.......The courts will not proceed with an appeal: (a) when the success of the appeal may lead to the court's coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and, therefore, it would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed. These three tests......are not cumulative tests. Even if one of them is satisfied, the court may dismiss the appeal.” 15. These three tests......are not cumulative tests. Even if one of them is satisfied, the court may dismiss the appeal.” 15. In Sardar Amarjit Singh Kalra v. Pramod Gupta a Constitution Bench of this Court, while dealing with the similar issue, has after considering a large number of judgments of this Court, reached the following conclusion: “21.......(a) In case of ‘joint and indivisible decree’, ‘joint and unseverable or inseparable decree’ the abatement of proceedings in relation to one or more of the appellants or respondents on account of omission or lapse and failure to bring on record his or their legal representatives in time would prove fatal to the entire appeal and require to be dismissed in toto as otherwise inconsistent or contradictory decrees would result and proper reliefs could not be granted, conflicting with the one which had already become final with respect to the same subject-matter vis-a-vis the others; (b) the question as to whether the court can deal with an appeal after it abates against one or the other would depend upon the facts of each case and no exhaustive statement or analysis could be made about all such circumstances wherein it would or would not be possible to proceed with the appeal, despite abatement, partially; (c) existence of a joint right as distinguished from tenancy-in-common alone is not the criterion but the joint character of the decree, dehors the relationship of the parties inter se and the frame of the appeal, will take colour from the nature of the decree challenged; (d) where the dispute between two groups of parties centered around claims or was based on grounds common relating to the respective groups litigating as distinct groups or bodies-the issue involved for consideration in such class of cases would be one and indivisible and (e) when the issues involved in more than one appeal dealt with as a group or batch of appeals, are common and identical in all such cases, abatement of one or the other of the connected appeals due to the death of one or more of the parties and failure to bring on record the legal representatives of the deceased parties, would result in the abatement of all appeals.” The Court further observed that any relief granted and the decree ultimately passed, would become totally unenforceable and mutually self-destructive and unworkable vis-a-vis the other part, which had become final. The appeal has to be declared abated in toto. It is the duty of the court to preserve and protect the rights of the parties. 19. In the instant case a declaratory decree was passed in favour of the respondent-plaintiffs and Smt Parwatu to the effect that they were co-owners, though, they had specific shares but were held entitled to be in “joint possession.” The appellant applicants had sought relief against Smt Parwatu before the first appellate court as there was a decree in her favour, passed by the trial court where Smt Parwatu had been impleaded by the appellant applicants as pro forma respondent. In such a fact situation, she had a right to contest the appeal. Once a decree had been passed in her favour, a right had vested in her favour. On her death on 19-11-2000, the said vested right devolved upon her heirs. Thus, the appeal against Smt Parwatu stood abated. In the instant case, the first appellate court rejected the application for condonation of delay as well as the substitution of LRs of Smt Parwatu, Respondent 4 therein.” 33. By placing reliance on the above pronouncements, Sri M.V.S. Suresh Kumar, learned counsel representing Sri Aravala Srinivasa Rao, learned counsel for the respondent No. 1/plaintiff, strongly opposed the present appeal as the appeal itself is not maintainable and this Court need to proceed further on the merits of the appeal and prays to dismiss the appeal with costs. 34. In view of the above rival contentions, this Court perused the material available on record. As stated supra, it is not in dispute that the application filed by the appellants to restore the respondent Nos. 2 to 15 in the appeal and to issue notice to them, in the year 2017, when the appeal is filed in the year 1997, was dismissed by this Court and it became final before the Hon’ble Supreme Court also. This Court gave categorical finding in the said order by considering the submission made by the plaintiff that “respondent Nos. 2 to 15 cannot by themselves challenge the appeal now after the passage of so much time. So indirectly they cannot be joined in the appeal now and this Court on appreciation of all the facts etc., agrees with the submissions of the respondent and does not find any valid reason to allow the prayer of the petitioner.” 35. 2 to 15 cannot by themselves challenge the appeal now after the passage of so much time. So indirectly they cannot be joined in the appeal now and this Court on appreciation of all the facts etc., agrees with the submissions of the respondent and does not find any valid reason to allow the prayer of the petitioner.” 35. Now, this Court has to decide that whether the appeal is maintainable without necessary, proper and effected to the lis. In this regard it is necessary to read the provision of Rule 9 of Order 1 of C.P.C. which are extract hereunder: “Mis-joinder and non-joinder: No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it: Provided that nothing in this rule shall apply to non-joinder of a necessary party.” 36. The proviso to Rule 9 of Order 1 was inserted by Act 104 of 1976 and it came into force with effect from 01.02.1977 and it is in the nature of an exception to Rule 9 and makes it abundantly clear that suit shall be defeated by reason of non-joinder of a necessary party. Normally non-joinder of a party would not defeat the suit when the matter in controversy insofar as it relates to rights and interest of the parties inter se actually before it. But the proviso to Rule 9 is a specific exception to the general principle under Order 1, Rule 9 C.P.C. Therefore, it is always imperative for the Courts to see the nature of the actual controversy that fell before it for consideration. In a suit for partition or partnership, there would be an absolute necessity to implead all the interested parties. The necessity or otherwise of such impleadment or the interestedness of such party involved would and should be decided in the suit only in their presence. 37. Apparently, in the present case on hand, defendant Nos. 4 and 5 who are the daughters of late Karumuri Venkata Ramanadham, defendant Nos. 6 and 7, who are the sons, defendant No. 8 wife and defendant Nos. 9 to 11 daughters of late Karumuri Nageswara Rao are necessary parties and effected for partition. 37. Apparently, in the present case on hand, defendant Nos. 4 and 5 who are the daughters of late Karumuri Venkata Ramanadham, defendant Nos. 6 and 7, who are the sons, defendant No. 8 wife and defendant Nos. 9 to 11 daughters of late Karumuri Nageswara Rao are necessary parties and effected for partition. But, as stated supra, the appellant shown them in the appeal as not necessary parties and not even send any notice to them. This a suit filed for declaration and partition of the plaint schedule properties. It is settled law that the other non-appealing respondents (including ex-parte respondents) can avail the opportunity of filing objections or cross-objections within the prescribed period of limitation from the date of receipt of summons in the First Appeal. Admittedly, in the present case, the defendants Nos. 4 to 17 were not sought to be served any notice at the instance of appellants, meaning thereby the statutory right of defendant Nos. 4 to 17, who are parties to the suit, to submit their objections, was denied. 38. This Court has no quarrel with the law settled by the Hon’ble Supreme Court in Nemai Chandra Devy case, Somakka case and United Engineers and Contractors case (referred to supra), relied upon by the learned counsel for the appellants, but, the same is not applicable to the present case on hand. Because, it is settled and categorical that if the necessary parties are not brought on record, the appeal cannot be entertained, as the infirmity is fatal. Further, in the absence of effected and necessary parties, when the success of the appeal may lead to the Court’s coming to a decision which be in conflict with the decision between the appellants and respondents. There has been no divergence between the Courts about the Court’s proceedings with the appeal between the appellants and respondents, when the decree in appeal was not a joint decree in favour of all the respondents. The said principle was enunciated in Dodla Chinnabbai Reddy case (referred to supra), in which referred the judgments of Hon’ble Supreme Court in Kanakarathanammal case and Nathu Ram case (referred to supra). 39. From the above, it is crystal clear that if necessary parties are not shown and not even sent any notice to them, the appeal cannot be entertained. The said principle was enunciated in Dodla Chinnabbai Reddy case (referred to supra), in which referred the judgments of Hon’ble Supreme Court in Kanakarathanammal case and Nathu Ram case (referred to supra). 39. From the above, it is crystal clear that if necessary parties are not shown and not even sent any notice to them, the appeal cannot be entertained. Because that will disentitle them to participate in future proceedings in particularly in an appeal, which is nothing but continuation of the suit. If the final decision is given without their presence, if subsequently they come and agitate the issue in separate proceedings, taking the ground that they were not shown as necessary parties in the appeal and that they have not sent any notice, then that would result in giving divergent decisions. Thereby the above said two judgments of the Hon’ble Supreme Court relied upon by the learned counsel for the plaintiff is squarely applicable to the present set of facts. 40. Having regard to the above discussion and in view of the plethora of pronouncements made by the Hon’ble Supreme Court as stated supra, this Court is of the considered opinion that the present appeal is not maintainable without proper, necessary and effected parties on record and liable to be dismissed on that score alone. Accordingly, this point is answered against the appellants. 41. POINT Nos. 2 to 4: In view of the findings in point No. 1, this Court need not go into the merits of the case as the appeal itself is not maintainable in the absence of proper and effected parties. However, this Court is inclined to answer the present points also by perusing the entire material on record and going into the merits of the case being first Appellate Court. 42. In this context, Sri Rayaprolu Srikanth, learned counsel for the appellants/defendant Nos. 1 to 3 submits that the trial Court erred in decreeing the suit and that in view of Exs.B.13, 14 and 17, the limitation is only one year as contemplated under Article 134, but not twelve years. In support of the same, he relied upon a judgment of the Orissa High Court in Sadhucharan Patri v. Sudarshan Patri, AIR 1965 Orissa 2. 43. In support of the same, he relied upon a judgment of the Orissa High Court in Sadhucharan Patri v. Sudarshan Patri, AIR 1965 Orissa 2. 43. He further submits that the plaintiff has to prove the case of declaration and possession etc.; that the plaintiff is not entitled to any extent other than what he has purchased under Ex.A.1 and that the decree in O.S. No. 254 of 1969 is satisfied by sale of 300 sq. yards, but not 600 sq.yards of site, as such the plaintiff cannot claim such property. On that score, he relied upon a judgment of Madras High Court in A. Chandran and A. Palani v. Periyammal, 2010 Law Suit (Mad) 4162. 44. He further relied on another judgment of Madras High Court in Thirugnana Sambandam Chettiar v. Kadumbadi Niacker, 1974 Law Suit (Mad) 1974 wherein according to the contention of learned counsel therein was that “it was only that extent that was notified of sale, and it was that extent which was intended to be purchased by the Court auction purchaser, and it was only for that extent the price was paid, and, therefore, there is no scope for enlarging the title of the judgment-debtor.” 45. He further submits that the contention raised by the plaintiff is already decided in A.S. No. 68 of 1985 raised and hence it operates res-judicata and hence bars the subsequent proceedings. In support of the same, he relied upon a judgment of the Hon’ble Supreme Court in Sathyanath v. Sarojamani, (2022) 7 SCC 644 wherein it was held at paragraph No. 24 that “......on a question of res judicata, the preliminary issue needs to be framed.” 46. He further submits that the trial Court did not appreciate the material on record in proper perspective, erroneously decreed the suit and thereby, prays to allow the appeal in its own merits. He also relied upon a judgment of this Court in Nagumilli Narayanamurthy v. V. Gudimetla Gangaraju, AIR 1958 A.P. 451 wherein it was held that “the cause of action has been held to mean every fact or the bundle of facts which the plaintiff has to prove in order to sustain his action. This connotes that both the right to sue and cause of action are the same and the cause of action is synonymous with the right to sue.” 47. This connotes that both the right to sue and cause of action are the same and the cause of action is synonymous with the right to sue.” 47. Per contra, Sri M.V.S. Suresh Kumar, learned counsel representing Sri Aravala Srinivasa Rao, learned counsel for the respondent No. 1/plaintiff, submits that the burden is on the appellants to prove the limitation as the suit is filed for declaration of title and for consequential relief of possession. If the suit is filed only for possession without seeking declaration of title the burden of prove the same would be shifted on the plaintiff. 48. He further submits that it is also not in dispute that the father of the 1st defendant taken time for adjudication before the High Court by filing C.M.A. No. 64268 of 1977, which was dismissed in 1980, the same has to be excluded. The name of the plaintiff was mutated in the municipal records vide Exs.A.5 to A.8. The testimonies of PWs. 1 and 2 coupled with documentary evidence established that the suit is not barred by time. The present suit is filed within twelve years, which is covered by Article 65 of Limitation Act. The Article 134 of Limitation Act has no in application to the case on hand, because it is a suit but not a petition. 49. He further submits that the appellants have not right to question the title of the plaintiff over the plaint schedule property, because the same was purchased by the plaintiff in the Court auction. 50. He further submits that the law is well settled that the boundaries will prevail over extent and only in the absence of definite material to show the actual extent intended to be sold the boundaries should outweigh the doubtful extent mentioned in the document. 51. He further submits regarding res judicata that since the matter is decided on its merits, the preliminary issue does not arise at all on the point of res judicata. The plaintiff being an auction purchaser under Ex.A.1 sale certificate entitled for declaration of 1/3rd share in the plaintiff schedule property of late Ramanadham, the same is not in dispute and no rebuttal material was placed by the appellants. The plaintiff being an auction purchaser under Ex.A.1 sale certificate entitled for declaration of 1/3rd share in the plaintiff schedule property of late Ramanadham, the same is not in dispute and no rebuttal material was placed by the appellants. The trial Court by rightly appreciating the material on record decreed the suit in favour of plaintiff and that there are no tenable grounds to interfere with the judgment of the trial Court. Even the appeal itself is not maintainable on the ground of excluding the proper and effective parties. Thereby, prays to dismiss the appeal with costs. 52. In view of the above submission, this Court intends to answer the contentions raised by the learned counsel for the appellants by perusing the entire material placed on record before the trial Court. 53. The specific case of the plaintiff is that one Venakta Ramanadham and Nageswara Rao were members of the undivided Hindu Joint family and late Ramanadham being eldest managed the properties of the family. Later late Nageswara Rao filed O.S. No. 26 of 1968 on the file of trial Court for partition and their brother-in-law Vuppala Venakta Narasimha Nookaraju also filed a suit in O.S. No. 6 of 1975 for declaration of his title on some of the properties of the joint family. Both the said suits were clubbed and joint trial was held and passed decrees on 31.07.1978. 54. Late K.V. Ramanadham father of defendants Nos. 1, 2, 4, 5 and husband of 3rd defendant borrowed an amount from Mandhata Chittenna, who is an Advocate at Kakinada, after executing a promissory note and then said Chittenna filed suit in O.S. No. 254 of 1969 on the file of Sub-Court at Kakinada and the same was decreed, which is also became final. Then said Chittenna filed E.P. No. 251 of 1971 in Sub- Court, Narsapur for realization of decretal amount and got attached the 1/3rd undivided share of late Ramanadham, which is subject matter in O.S. No. 26 of 1968 on the file of trial Court. Then, conducted auction and the plaintiff became higher bidder in the auction and purchased the said 1/3rd undivided share for a total sum of Rs.31,400/- and also engrossing the stamps by deposing the said sum for sale certificate. One A. Venakta Rayudu, Advocate of Narsapur was appointed as Receiver to manage the joint family properties in O.S. No. 26 of 1968. 55. One A. Venakta Rayudu, Advocate of Narsapur was appointed as Receiver to manage the joint family properties in O.S. No. 26 of 1968. 55. Then, said Ramanadham filed E.A. No. 473 of 1975 in E.P. No. 251 of 1971 to set aside the sale against the decree holder and Court Receiver in O.S. No. 26 of 1968 and the same was dismissed on merits with costs on 07.09.1976. Thereafter, the sale certificate was issued and registered on 13.09.1976. 56. Later said Ramanadham raised an objection in E.A. No. 473 of 1975 stating that the 1/3rd undivided share was not property mentioned in the schedule. But the same was not considered by the trial Court that as per the isthihar and boundaries mentioned, the Court can ascertain and identify the property to be sold. 57. On that said Ramanadham filed an appeal in C.M.A. No. 64268 of 1977 before the High Court and obtained interim stay of operation of orders in E.A. No. 473 of 1975 from the High Court in C.M.P. No. 6995 of 1978. In view of the said stay order the plaintiff could not take further steps in execution proceedings. Consequently, the said C.M.A. was dismissed by the High Court. 58. The trial Court while delivering the judgment in O.S. No. 26 of 1986 categorically held that the properties purchased by the plaintiff under sale certificate were allotted to the share of Venkata Ramanadham for adjustment of equities and to avoid loss to the plaintiff. Aggrieved by the said decree and judgment in O.S. No. 26 of 1968 Ramanadham filed an appeal in A.S. No. 340 of 1979 before the High Court. The plaintiff is one of the respondent in the said appeal. 59. During the pendency of the said appeal, Venakta Ramanadham and Nageswara Rao died and their legal representatives were brought on record. Then plaintiff filed E.A. No. 168 of 1985 for symbolic delivery. He is also advised to file the present suit for declaration, partition and to allot 1/3rd share of late Venakta Ramanadham to him being auction purchaser, by metes and bounds. 60. The above said aspects were not disputed by the appellants. The only contention is that the present suit is barred by limitation. To prove his case, the plaintiff got examined himself as PW-1 and he reiterated his case. 60. The above said aspects were not disputed by the appellants. The only contention is that the present suit is barred by limitation. To prove his case, the plaintiff got examined himself as PW-1 and he reiterated his case. During cross examination he denied that the extent shown in the sale certificate are not correct. Even he admitted that he did not mentioned in his chief examination about the filing of C.M.A. and obtaining interim stay from the High Court, the same is not disputed by the appellants in any way. Nothing elicited during cross examination to disbelieve his testimony. 61. He also got examined PW-2, who was appointed as Commissioner in I.A. No. 86 of 1990 in O.S. No. 26 of 1968 and he testified about execution of the warrant to take the measurements over the plaint schedule properties in O.S. No. 26 of 1968. 62. PW-3, who was working as Junior Assistant, Palakole Municipality testified about the mutation of plaintiff’s name in the records regarding the schedule property and he produced Exs.X.1 to X.4 records. 63. On the other hand, DW-1, who is 1st defendant, in his chief examination reiterated his contentions that the plaintiff was shown as party in A.S. No. 349 of 1979 on the file of High Court and there was no stay in the said appeal. The plaintiff did not mention about the present suit in E.A. No. 242 of 1990 and E.A. No. 186 of 1985, which is filed for symbolic delivery of the property covered under Ex.A.1 and the schedule mentioned therein was not amended by him. The plaintiff is not entitled claim undivided share in the schedule property. 64. During cross examination, DW-1 categorically admitted that he does not know anything about the proceedings, which are lead to issue Ex.A.1. He also admitted that his father and himself did not file any appeal for the relief granted to the plaintiff in the suit. He further admitted that the relief granted in the suit became final and he has any document to show the valuation of the plaint is not correct. 65. Now, it is the burden on the appellants to prove the limitation to file the suit for declaration of title and for consequential reliefs. As stated supra, if the suit is filed only for possession without seeking declaration of title the burden of proof would be on the plaintiff. 65. Now, it is the burden on the appellants to prove the limitation to file the suit for declaration of title and for consequential reliefs. As stated supra, if the suit is filed only for possession without seeking declaration of title the burden of proof would be on the plaintiff. It is not in dispute that the father of the 1st defendant approached the High Court for adjudication of sale held in E.A. No. 473 of 1975 in E.P. No. 251 of 1971 by filing C.M.A. No. 64268 of 1977, which was dismissed in the year, 1980. Exs.A.3 and A.4 both are dated 07.09.1976 relating to the sale and sale certificate issued by the trial Court and the suit is filed within even otherwise in the period of limitation. Exs.A.5 and A.8 issued by Municipal authorities established that the name of the plaintiff was mutated in the records. 66. It is also not in dispute that the plaintiff was impleaded as 16th defendant in O.S. No. 26 of 1968 in a suit for partition of the joint family property, instituted by late Ramanadham and in which the sale certificate was exhibited as Ex.B.135 and a finding was given that equities will have to be adjusted by allotting the properties sold by the late Ramanadham to his share in the final decree proceedings. Then the Court appointed PW-2 as an Advocate Commissioner. 67. The plaintiff before filing the suit got filed E.A. No. 168 of 1985 in E.P. No. 251 of 1971 in O.S. No. 254 of 1969, which is marked as Ex.B.17. The contention of the defendant that the said E.A. No. 168 of 1985 was dismissed and orders passed therein are binding on him and the limitation as per Article 134 applies to the present case. But, as could be seen from proceedings of the suit in O.S. No. 26 of 1986, similarly E.P. No. 251 of 1971 and C.M.A. No. 64268 of 1997, which was dismissed in the year, 1980 and the present suit is filed on 05.02.1987. The sale certificate issued on 13.09.1976. However, as per the judgment in O.S. No. 26 of 1968 the equities have to be worked even for the plaintiff and against the said judgment an appeal was preferred by the judgment debtor, wherein it is mentioned that 15th defendant, who is plaintiff herein is not a necessary party. The sale certificate issued on 13.09.1976. However, as per the judgment in O.S. No. 26 of 1968 the equities have to be worked even for the plaintiff and against the said judgment an appeal was preferred by the judgment debtor, wherein it is mentioned that 15th defendant, who is plaintiff herein is not a necessary party. Therefore, he is not shown as party. 68. It is not in dispute that the plaintiff got the sale made absolute on 13.09.1976 and as stated supra the present suit is filed on 05.02.1987. As such, it is filed within twelve years which is covered by Article 65 of Limitation Act. But, the appellants contended that in view of Article 134 of Limitation Act, it should be filed in within one year from the date of sale made absolute. 69. On plain reading of these Articles, it is only by way of petition, but not regular suit. Articles 65(c) says about the suit filed by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the sale, the purchase shall be deemed to be representative of the judgment debtor who was out of possession as sale by the purchaser and the period of limitation is prescribed for twelve years. Admittedly, the plaintiff being auction purchaser got the sale certificate in the year, 1976 and filed the suit in the year 1987, when E.A. No. 168 of 1985 is pending. It is also admitted fact that the plaintiff purchased the property in E.P. No. 251 of 1971, but he failed to recover the possession, as the proceedings are taken to High Court, which prevents him to file a suit. 70. Thereby, considering the limitation on any angle Article 134 of Limitation Act is not applicable to the case on hand and on the other hand in view of Article 65(c) the suit is filed within twelve years from the date of confirmation of sale. The Hon’ble Supreme Court in a judgment between D.R. Bhargava v. Shyam Sunder Seth, 1994 (3) ALT 43 SC categorically observed and supported the said findings, which is relied and cited by plaintiff. The Hon’ble Supreme Court in a judgment between D.R. Bhargava v. Shyam Sunder Seth, 1994 (3) ALT 43 SC categorically observed and supported the said findings, which is relied and cited by plaintiff. Even the judgment of Orissa High Court relied upon by the learned counsel for the appellants in Sadhucharan Patri case (referred to supra) is not applicable to the case on hand in view of the above discussion and observations made by the Hon’ble Supreme Court in the above cited judgment. 71. The trial Court elaborately discussed on this point and made categorical findings that the suit is within the limitation. This Court has no grounds to interfere with the said findings. 72. Now, coming to the contention raised by the learned counsel for the appellants regarding extent claimed by the plaintiff and that he claimed 600 sq. yards instead of 300 sq. yards, which he is entitled. As stated supra, it is the testimony of PW-2, Advocate Commissioner that he was appointed to take measurements of plaint schedule properties in O.S. No. 26 of 1968 and the warrant is still under execution. It is settled law made by the Hon’ble Supreme Court in plethora of judgments that the boundaries will prevail over the extent. It is the categorical observation made by the trial Court in the judgment that the equities are to be worked out and adjusted only in the final decree proceedings in O.S. No. 26 of 1968 and the plaintiff is entitled for 1/3rd share under Ex.A.1 subject to proceedings of the final decree in I.A. No. 86 of 1990. 73. Even the trial Court held in E.A. No. 473 of 1975 in E.P. No. 251 of 1971 that when all the particulars of properties, except the extent, are correctly noted in the isthihar and when from the boundaries of the properties could be easily be identified, it cannot be said that simply because that there is some variations about the actual extent of the properties, when door numbers, assessments numbers and boundaries are correctly given, the property within boundary prevails, though the extent is not in correctly noted. 74. 74. Thereby, the contention raised by the learned counsel for the appellants has no legs to stand, because the equities are to be worked out and adjusted only in the final decree proceedings not in the present suit and he has no scope to enlarge the extent actually purchased. 75. The another plea taken by the learned counsel for the appellants is that to decide the question of res-judicate, the preliminary issue needs to be framed by the trial Court and in support of the same he relied Sathyanath case (referred to supra). But, the said decision is not applicable to the present set of facts, because, when the matter itself decided on merits, there is no question of framing of preliminary issue on the point of res judicata by the trial Court. Thereby, the said contention raised by the appellants is liable to be rejected. 76. Furthermore, the learned counsel for the appellants relied on a judgment of this Court in Nagumilli Narayanamurthy case (referred to supra) regarding ‘cause of action’ is a bundle of essential facts, which is necessary for the plaintiff to prove before he can succeed in his suit. This Court has no quarrel with the above principle, but the same is not applicable to the present case on hand, because, the plaintiff herein categorically proved his entitlement over 1/3rd share of late Ramanadham in the plaint schedule property by narrating each and every essential fact. 77. Viewing from any angle, the appellants failed to make out their case to interfere with the consistent findings given by the trial Court. Thereby, these points are answered against the appellants/defendant Nos. 1 to 3 and in favour of the 1st respondent/plaintiff. 78. POINT NO. 5: Having regard to the above discussion in Point Nos. 2 to 4, this Court after duly evaluating the facts and law, is of the considered opinion that there is no misreading of proposition of law or facts by the trial Court, even the present appeal is not maintainable without proper and effected parties as discussed supra in point No. 1. Thereby, this Court does not find any grounds to interfere with the well-articulated judgment and decree of the trial Court. Therefore, there are no merits in this appeal and as such the same is liable to be dismissed. 79. Thereby, this Court does not find any grounds to interfere with the well-articulated judgment and decree of the trial Court. Therefore, there are no merits in this appeal and as such the same is liable to be dismissed. 79. In the result, the appeal is dismissed with costs by confirming the decree and judgment dated 10.02.1997 in O.S. No. 23 of 1987 on the file of the Court of learned Subordinate Judge at Narsapur. 80. Interim orders granted earlier if any, stand vacated. 81. Miscellaneous Petitions pending if any, stand closed.