THE HON’BLE SRI JUSTICE B.PRAKASH RAO SECOND APPEAL No.394 of 1990 JUDGMENT: Originally, the suit was filed by appellant No.1 and during the pendency of the present appeal, he died. Hence, his legal representatives were brought on record as appellant Nos.2 to 6. This appeal under Section 100 C.P.C. is at the instance of unsuccessful appellant No.1-plaintiff, aggrieved by the judgment and decree, dated 23.07.1990, passed in A.S.No.11 of 1987 on the file of the Subordinate Judge, Nagarkurnool, in allowing the appeal filed at the instance of the respondents-defendants while setting aside the judgment and decree, dated 25.01.1984, passed in his favour in O.S.No.34 of 1981 on the file of the District Munsif, Nagarkurnool. Briefly stated, the facts of the case are that both the parties namely appellant No.1 and the respondents have filed two counter suits. The present suit being O.S.No.34 of 1981 was filed by appellant No.1 for perpetual injunction in respect of the land admeasuring Acs.4.00 in Survey No.100, situated at Yetmatapur Village, Nagarkurnool Taluk. The suit was contested by the respondent herein. Simultaneously, the respondent also filed another suit being O.S.No.35 of 1981 in respect of the very same property and that the suit was contested by appellant No.1. However, both the suits were tried and disposed of separately. The present suit O.S.No.34 of 1981 was decreed in favour of appellant No.1 through judgment, dated 25.01.1984, whereas the suit filed by the respondents in O.S.No.35 of 1981 was dismissed as per the judgment, dated 4.02.1984, by the trial Court. However, instead of filing appeals against both the judgments passed by the trial Court, the respondents have filed A.S.No.11 of 1987 against the judgment, dated 25.01.1984 in O.S.No.34 of 1981, which was filed by appellant No.1. No appeal has been filed before the lower appellate Court against the judgment passed in O.S.No.35 of 1981. The learned counsel for the appellant contended that the lower appellate Court without considering the facts and findings recorded in O.S.No.34 of 1981, which was decided in favour of appellant No.1, allowed A.S.No.11 of 1987 by setting aside the judgment passed by the trial Court vide its judgment, dated 23.07.1990, which is unsustainable and in fact, the respondents did not file any appeal against the judgment passed in O.S.No.35 of 1981. He further contended that the lower appellate Court contrary to the findings recorded in O.S.No.34 of 1981, allowed the appeal, which certainly had an effect on the findings recorded in the judgment passed in the suit filed by the respondents and thereby it constitutes res judicata. Having heard the learned counsel for the appellant and after perusing the material on record, the only question which apparently a substantial one to warrant interference under Section 100 C.P.C. is as to the effect of the other parallel suit filed by the respondents being O.S.No.35 of 1981. Admittedly, both the suits are counter suits in respect of the same subject matter and between the same parties. Necessarily, the judgment and decree in O.S.No.35 of 1981 and the findings contained therein would be binding on the respondents and could not have been canvassed in any manner in the present proceedings. Further, in spite of the fact that the lower appellate Court reversed the judgment in O.S.No.34 of 1981, nothing has been considered by it nor furnished any reasons. In the circumstances, there is no justification for the lower appellate Court to straight away allow the appeal filed by the respondents. Hence, the second appeal is allowed setting aside the judgment and decree passed in A.S.No.11 of 1987 by the Court of the Subordinate Judge, Nagarkurnool and the matter is remanded to the lower appellate Court for fresh consideration and disposal after giving opportunity to both the parties. The appellants are at liberty to take appropriate steps to adduce additional evidence and thereafter, the lower appellate Court shall consider such evidence along with the main appeal. No order as to costs. __________________ B.PRAKASH RAO,J Dt:22.07.2010 kdl