IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.135 of 2000 BETWEEN Doki Kameswararao (died) and five others. …APPELLANTS AND Jalagadugula Bhogamma. …RESPONDENT Counsel for the Appellants: MR. M.V. SURESH Counsel for the Respondent: MR. M.S.R. SUBRAHMANYAM The Court made the following: - JUDGMENT: This second appeal is by the defendants in O.S.No.65 of 1991 on the file of the District Munsif, Pathapatnam. The said suit filed by the respondent herein was decreed by judgment and decree datd 26.02.1996 granting permanent injunction in her favour and the same was confirmed in A.S.No.92 of 1996 by judgment and decree dated 14.12.1999 passed by the Additional Senior Civil Judge, Srikakulam. 2. It is evident from the judgment of the trial Court that two cross suits, for injunction, were filed by the parties against each other. While the suit filed by the appellants herein is O.S.No.51 of 1989 with respect to plot No.3 in Sy.No.238/2, the respondent herein had also filed O.S.No.65 of 1991 describing the suit schedule property as bearing Sy.No.254/2. After the pleadings were filed by both sides and issues were settled, the learned counsel for both sides filed a memo requesting the trial court to try both the suits jointly because the cause of action and the subject mater of both suits is one and the same. The said memo was allowed and joint trial was conducted and evidence was also recorded in O.S.No.51 of 1989. The aforesaid aspect mentioned in para 2 of the judgment of the trial Court needs to be kept in mind to appreciate the contentions advanced by the learned counsel for the appellants in this appeal. As mentioned above, while the respondent’s suit O.S.No.65 of 1991 was decreed, the appellants’ suit O.S.No.51 of 1989 was dismissed. The appellants, however, preferred an appeal before the lower appellate Court only against O.S.No.65 of 1991 of the respondent’s suit, which was decreed and did not prefer any appeal against dismissal of his suit O.S.No.51 of 1989. 3. Learned counsel for the appellants, primarily, contended that both the Courts below have failed to notice that the suit schedule in both the suits are different, as mentioned in the opening paragraph above. He, therefore, contends that the subject matter of both the suits is different and there is no adverse affect on the appeal preferred by the appellants before the lower appellate Court against the decree in O.S.No.65 of 1991, even if they have not failed any appeal against the dismissal of their suit O.S.No.51 of 1989. In other words, the learned counsel for the appellants states that the subject matter of both the suits being different, Section 11 of the Code of Civil Procedure, 1908 has no application and the lower appellate Court has committed error in dismissing the appeal filed by the appellants on the said ground. Learned counsel also has placed before the Court a copy of the report of the Advocate Commissioner to substantiate that the said Commissioner did not state in the report that the subject matter of both suits is one and the same. He also relied upon the evidence of the said Commissioner recorded by the trial Court as D.W.3 and submits that the subject matter of both the suits being different, Section 11 CPC has no application. 4. The substantial questions of law framed for consideration in this appeal also related to the finding of the lower appellate Court applying Section 11 CPC and the same are extracted as under: “2 (a) Whether the decision of the court below in O.S.No.51 of 1989 operates as resjudicata in the present proceedings as the subject matter of the suits is not identical as per the finding of the trial court and when the suits are tried together and while disposing of by the common judgment one decision in one suit cannot be regarded as a decision in a prior suit. (b) Whether the court below erred in applying Section 11 CPC to this case as the appellant did not prefer appeal against the decision in O.S.No.51 of 1989 as the suit is only for injunction and when the threat of dispossession is not there, he can very well refrain from pursuing that remedy and hence it does not become resjudicata.” 5. After hearing both sides, I was initially impressed with the contentions of the learned counsel for the appellants that the survey numbers claimed in both the suits, prima facie, show that the subject matter of both suits are different. However, on a deeper probe, it is noticed that both the suits are between the same parties and relate to same subject matter even as per the memo filed by the learned counsel for the plaintiff on 26.04.1995 before the trial Court requesting it to hold a joint trial of both the suits and accepting the said memo, joint trial was held and evidence was recorded in O.S.No.51 of 1989 only. More importantly, the plaintiff in O.S.No.51 of 1989 – appellant No.1 herein, since deceased, was examined as P.W.1, who has stated in the cross-examination as follows: “I do not know whether the defendant got appointed Commissioner to inspect the schedule site. The defendant filed a suit on the file of this court in O.S.No.65 of 1991 against me on the same schedule site. The defendant has no manner of right, title over the schedule site. The defendant never live and possession and enjoyment of the schedule site…” 6. The above evidence of the plaintiff in O.S.No.51 of 1989, therefore, clearly establishes that even the said plaintiff accepts that the suit schedule in both the suits is one and the same. It may be that the schedule indicated in the plaint shows as if they are different survey numbers, but the parties proceeded with the suits on a specific stand that suit schedule in both the suits is one and the same. In fact, that is the reason why the trial Court conducted a joint trial. At this distance of time, therefore, and at the second appellate stage, it is not open for the appellants to reverse the said stand and claim that both the suit schedules relate to different properties. To my mind, therefore, the present contention is raised not only to get over the defect of not filing an appeal by the appellants against dismissal of O.S.No.51 of 1989 but also to get over the bar of resjudicata under Section 11 CPC. The said contention of the learned counsel for the appellants, therefore, is clearly not sustainable, as is evident from the evidence of the first appellant, extracted above. The substantial questions of law are, therefore, answered against the appellant. The second appeal is accordingly dismissed. However, there shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J February 10, 2011 DSK