THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH %28.01.2011 A.S.NO.357 OF 2010 TUMU SRIHARI APPELLANT And THUMU PADMAMMA AND FIVE OTEHRS. RESPONDENTS Counsel for the petitioners: SRI P.SRI RAGHU RAM Counsel for the respondents 3 to 5: SRI B.VENKATA RAMA RAO < Gist Ø Head Note. Ø ?Cases Referred: 1. 2006(4) ALT 64 2. AIR 2000 A.P. 29 3. AIR 1954 SC 82 THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH A.S.NO.357 OF 2010 JUDGMENT (Per the Hon’ble Sri Justice G.Chandraiah) Heard both the counsel. 2. Aggrieved by the judgment and decree dated 24.11.2009 passed by the court of Principal District Judge, Rangareddy District at L.B. Nagar, Hyderabad in O.S.No.245/2005, in dismissing the suit filed for declaration and for consequential injunction, the plaintiff filed the present first appeal. 3. The suit schedule property is the agricultural land admeasuring Ac.0- 33 guts in Sy. No. 43/ and 46/ situate at Moosapet village, Balangar Mandal, Rangareddy. 4. The plaintiff filed the suit for declaration of title and for consequential permanent injunction, restraining the defendants and their henchmen etc., from interfering with his peaceful possession and enjoyment of the suit schedule property. 5. The plaint averments are that one T.Yadaiah and T.Narsaiah are brothers and sons of Balakrishnaiah. Balakrishnaiah, owned several properties. The plaintiff is the son of Narsaiah, born through his first wife. The 1st defendant is the second wife of Narsaiah and the 2nd defendant is the son of Narsaiah, through his second wife. The defendants 3 to 5 are the sons of Yadaiah. 6. Yadaiah and Narsaiah, owned lands in Sy.Nos. 43/ , 46/ 65/ to an extent of Ac.1-11 guntas at Moosapet, Balanagar Mandal Rangareddy District. The case of the plaintiff is that he purchased the suit schedule property from Yadaiah and Narsaia under registered sale deed dated 12.1.1970 and became absolute owner of the said property and has been in continuous possession and enjoyment of the same, without any interruption and he also got his name mutated in the revenue records and has been paying taxes and cultivating the lands. After the death of his mother, the plaintiff got separated from the joint family and living separately and he is an employee of BHEL. 7. While so, in the year 1973, defendants 1 and 2 herein, who are the second wife of T. Narsiah and her son, filed a suit in O.S.No.29/1973 on the file of Munsif Magistrate, West and South, Hyderabad against the father of the plaintiff herein and the plaintiff, seeking partition of various properties, including the suit schedule property. The said suit was partly decreed and the present suit schedule property was excluded and was directed to be given to plaintiff herein, who is the 2nd defendant in the said suit. The defendants 1 and 2 herein preferred appeal and ultimately the judgment and decree in O.S.No.29/1973 has become final. 8. In the year 1992, when defendants 3 to 5 tried to interfere with the possession and enjoyment of the suit schedule property, the plaintiff filed the suit in O.S.No.197/1992 for injunction and the same was decreed on 7.5.1997 ex parte. However, the defendants 3 to 5 herein, filed a suit in O.S.No.213/1992 on the file of I Additional Senior Civil Judge, Rangareddy District for partition, including the suit schedule property. The said suit was filed against the father of the plaintiff i.e., T.Narsiah and the plaintiff. By judgment and decree dated 30.4.1998, the partition suit was decreed. Aggrieved by the same, the plaintiff herein, who is the 2nd defendant in said suit, filed first appeal in A.S.No.59/1990 on the file of III Additional District and Sessions Judge at L.B. Nagar Rangareddy District, Hyderabad. By judgment and decree dated 31.10.2003, the appeal was dismissed and the second appeal filed by the plaintiff in S.A.No.623/1004 also ended in dismissal by judgment and decree dated 17.9.2004. The case of the plaintiff in all the above judgments, is that the suit schedule property was purchased by him for a valuable consideration and that he is in possession of the said property. The further case of the plaintiff is that his sale deed dated 12.1.1970 was not rejected and hence is subsisting and thus he is the absolute owner and possessor of the suit schedule property. His case is that he is in possession of the suit schedule property for last thirty years without any interruption and after the dismissal of the second appeal, as there is threat to his title, he filed the suit for declaration and for permanent injunction. 9. The defendants 1 and 2 remained ex parte and the 3rd defendant filed written statement and the defendants 4 and 5 filed memo adopting the written statement filed by the 3rd respondent. 10. In the written statement, the 3rd defendant while admitting the relationship with the plaintiff, denied the execution of the registered sale deed dated 12.1.1970 by T.Yadaiah and T.Narsaiah, jointly in favor of the plaintiff and the exclusive possession of the plaintiff over the suit schedule property. His further case is that the alleged right of the plaintiff under the sale deed, was the subject matter of the earlier suit filed by defendants 3 to 5 in O.S.No.213/1992 on the file of I Additional Senior Civil Judge, Rangareddy District, for partition and in the said suit, the plaintiff herein failed to succeed in claiming exclusive title and possession over the suit schedule property by virtue of the sale deed dated 12.1.1970. The consequential first appeal and the second appeal filed by the plaintiff also ended in dismissal and therefore, after a period of 34 years from the date of execution of sale deed and 13 years from the date of institution of suit in O.S.No.213/1992, the present suit is bared by limitation. It is also stated that there is no cause of action and hence the suit is liable to be rejected under Order VI Rule 11(d) of C.P.C.. As the rights of the defendants have been declared in the suit in O.S.No.213/1992 and which has become final, the present suit for the very same subject matter, is not maintainable and the plaintiff has no locus standi to the file the suit. With these averments, the suit was sought to be dismissed. 11. On the basis of the above pleadings, the trial court framed the following issues: 1. Whether the registered sale deed bearing document no.24/1970 dated 12.1.1970, is true, valid and binding on the defendants? 2. Whether the plaintiff has got exclusive ownership and possession over the suit schedule property? 3. Whether the decree and judgment made in O.S.No.213/1992 by the I Additional Senior Civil Judge, Rangareddy District, operates as res judicata? If so, whether the suit is hit by the principles of res judicata? 4. Whether the suit relief is barred by the law of limitation? 5. Whether the plaintiff is entitled to the declaration as prayed for? 6. Whether the plaintiff is entitled to the consequential relief of perpetual injunction as prayed for? 7. To what relief? 12. In support of the case of the plaintiff, P.Ws.1 to 3 were examined and Exs.A-1 to A-20 were got marked. On behalf of the defendants, D.Ws.1 and 2 were examined and no document was marked on their side. 13. Appreciating the entire evidence, the court below dismissed the suit on the grounds of principles of res judicata and limitation and further held that the plaintiff failed to prove execution of Ex.A-4 sale deed and passing of consideration under the said sale deed. Challenging the said judgment and decree, the present appeal is filed. 14. The learned counsel for the appellant contended that the court below failed to appreciate the material evidence on record and erroneously held that the suit is hit by the principles of res judicata and the law of limitation. He contended that the defendants 1 and 2 herein have filed suit in O.S.No.29/1973 on the file of Munisf Magistrate, Hyderabad West and South against the plaintiff herein and his father. By judgment and decree dated 23.4.1977, the suit was partly decreed and the present suit schedule property was directed to be given to the plaintiff herein, who is the 2nd defendant in the said suit and the said judgment and decree in O.S.No.29/1973, has attained finality. He further contended that when the defendants 3 to 5 herein attempted to interfere with the possession of the plaintiff, he filed suit in O.S.No.197/1992 against them for perpetual injunction and the said suit was decreed and the judgment has also attained finality. He further contended that the plaintiff is in uninterrupted possession of the suit schedule property for the past forty years and thus has perfected the title by adverse possession. These aspects have not been noticed by the court below and without appreciating the evidence on record, erroneously dismissed the suit. He contended that the appeal is continuation of the suit and against the judgment and decree in O.S.No.213/1992, the plaintiff preferred first and second appeals and therefore the time commences only after the dismissal of the second appeal in S.A.No.623/2004 on 7.1.2004 and therefore, the court below is not justified in holding that the suit is barred by limitation. He stated that the judgment of this court in TUMMALAPALLI ANASUYA v. YENDURI PARVATHI[1],is not applicable to the facts of the present case and it is not a binding precedent and the court below is not justified in relying on the said judgment. He also contended that the validity of the sale deed cannot be assailed in the suit for partition and for its cancellation, a separate suit under Section 31 of the Specific Relief Act, has to be filed. In support of this contention, he relied on the judgment of this court reported in KASIREDDY RAMAYAMMA v. KASIREDDY RAMA RAO[2]. With these averments, the impugned judgment and decree of the trial court, was sought to be set aside and the appeal be allowed. 15. On the other hand, the learned counsel appearing for the respondents supporting the impugned judgment and decree, contended that the subject matter in the present suit is squarely covered by the judgment and decree in the earlier suit in O.S.No.213/1992 and considering the entire material evidence on record, the court below held that the present suit is hit by the principles of res judicata. Relying on the judgment of the Apex Court i n SUNDERABAI W/O DEVRAO DESHPANDE v. DEVAJI SHANKER DESHPANDE[3], he contended that where the right claimed in both the suits is one and the same, the subsequent suit is barred on the principles of res judicata, though the right in the subsequent suit is sought to be established on a ground different from that of in the former suit. He contended that the under Article 58 of the Limitation Act, 1963 the suit for declaration has to be filed within three years from the date of denial of title and in the present case, the denial of tile of the plaintiff is clear when the suit in O.S.No.213/1992 is filed for partition, including the suit schedule property. The plaintiff did not take step for filing the suit within the statutory period and hence the suit is barred by limitation. With these contentions, the suit was sought to be dismissed. 16. In view of the above rival contentions and the material on record, the question that falls for consideration is, whether the judgment and decree dated 30.4.1998 in O.S.No.213/1992, which has attained finality in respect of the sale deed dated 12.1.1970, relied on by the plaintiff herein, for claiming exclusive title and possession in the said suit for partition, and having failed to prove the same, can he be permitted to re-agitated the said issue, between the same parties in the subsequent suit filed for declaration, on new grounds? 17. In the present case, the facts which are not in dispute, as stated by the plaintiff himself is that the defendants 3 to 5 herein have filed the suit in O.S.No.213/1992 on the file of I Additional Senior Civil Judge, Rangareddy District for partition and in the said suit, the present suit schedule property was also included and the defence set up by the present plaintiff for excluding the said property from partition, is that the suit present suit schedule property was sold by his father T.Narsiah and late Yadaiah to him under registered sale deed dated 12.1.1970 for a valuable consideration and since the date of registration, he is in exclusive possession of the suit schedule property as absolute owner. Based on the averments on record, the following issue were settled for trial in O.S.No.213/1992: 1. Whether the D2 purchased the suit properties from the father of the plaintiff and D1 as averred in the written statement? 2. Whether the suit properties are liable for partition? 3. To what relief? 18. Based on the material on record, on issue no.1. the trial court held that the execution of Ex.B-1 (sale deed dated 12.1.1970) by late Yadaiah the father of the plaintiffs, is not proved, when the execution itself is not proved, the defendant no.2 failed to prove that he purchased the said property from the father of the plaintiff and D1 as averred in the written statement. In the suit, the issue is answered in negative against the D2. 19. With regard to possession of the present plaintiff over the suit schedule property, the trial court considering the entire material held as under: “. . . The presumption of Hindu law is that the family is joint till the contrary is proved. In the written statements the defendants have not taken a plea that there was already partition. Admittedly D1 was the elder brother of the father of the plaintiffs. When the father of the plaintiffs died and plaintiffs were minors. naturally the paternal uncle will look after the interest of the children of his deceased brother. Even if it is assumed that the D2 is in exclusive possession of the suit properties, his possession is in trust of other sharers. The possession of one co-parcener is also the possession of other co-parcener. Now a days when the extent of the joint family agricultural lands are negligible, all the co-parceners need not cultivate it. The co-parceners may do their separate jobs and avocations. In such a case it cannot be contended that a co-parcener who is not in possession of the ancestral property is not entitled to claim share. As already stated it may be that the father of the plaintiffs and D-1 executed Ex.B1 in favour of D2, but the D2 failed to prove the execution. Therefore, the presumption that would follow is that the possession of one coparcener is the possession of other coparceners in the absence of partition by meets and bounds. Therefore, the plaintiffs are entitled to partition of the suit schedule property into two equal shares and for separate possession of one such share.” 20. From the above excerpts of the judgment in O.S.No.213/1992 dated 30.04.1998, which has attained finality, by virtue of the dismissal of A.S.No.59/1998 dated 31.10.2003 and S.A.No.623/2004 dated 7.9.2004, it is clear that though the plaintiff has relied on the sale deed dated 12.1.1970 to claim his exclusive title and possession, he could not prove the same and the court below held that the said property is also available for partition and accordingly decreed the suit. 21. In the present case, the appellant is again claiming exclusive title over the suit schedule property, which he could not prove in the earlier suit between him and defendants 3 to 5. From a perusal of the written statement filed by the appellant in O.S.No.213/1992 and also from the perusal of the judgment, it could be seen that no where there is reference about the filing of the earlier suit against defendants 1 and 2 herein in O.S.No.29/1973 and the judgment dated 23.4.1977. Further, the defendants 3 to 5 herein are not the parties to the suit in O.S.No.29/1973. Therefore, when the plaintiff has suffered a decree earlier in O.S.No.213/1992 and the same has become final, now agitating the very same issue, on new grounds, is not permissible and the same is hit by the principles of res judicata. 22. The Apex Court in Sunderbai v. Devaji Shankar Despande (3 supra) held that whether the right claimed in both suits is the same, the subsequent suit would be bared as res judicata though the right in the subsequent suit is sought to be established on a ground different from that in the former suit and it would be only in those cases where the rights claimed in the two suits were different that the subsequent suit would not be barred as res judicata even though the property was identical. The relevant portion is extracted as under: “11. . . . where it was held that where the right claimed in both suits is the same the subsequent suit would be barred as ‘res judicata’ though the right in the subsequent suit is ought to be established on a ground different from that in the former suit. It would be only in those cases where the rights claimed in the two suits were different that the subsequent suit would not be barred as ‘res judicata’ even though the property was identical.” 23. In the present suit filed by the plaintiff, he is agitating on the grounds of filing earlier suit in O.S.No.29/1973 dated 23.4.1977 and perfection of title by prescription. These grounds were not taken in the earlier suit while deciding the title based on the sale deed dated 12.1.1970 and hence the present grounds cannot be considered, and in view of the above judgment of the Apex Court, the present suit is hit by the principles of res judicata. 24. The other contention of the respondents is that the suit is barred by limitation, apart from res judicata. In the present case, the defendants 3 to 5 earlier filed the suit in O.S.No.213/1992, as referred to above, denying the sale deed dated 12.1.1970 and seeking for partition. Therefore, the cause of action for filing the suit arose immediately on filing of the suit in O.S.No.213/1993, and within three years therefrom, under Article 58 of the Limitation Act, 1963 the suit for declaration ought to have been filed. But the present suit is filed in the year 2005 i.e., after a period of about 13 years, and hence the suit is hopelessly barred by limitation. 25. In the decision reported in TUMMALAPALLI ANASUYA vs. YENDURI PARVATHI (1 supra), similar facts arose before a learned single Judge of this court, wherein a suit for partition was filed in the year 1992 and the same was decreed. Subsequently, the party who claimed exclusive title over certain property in the partition suit, and failed to establish his claim, filed a suit, seeking for declaration of that property in the year 2002, which was one of the items in partition suit of the year 1992, after a period of about ten years. Under these circumstances, the learned single Judge held that limitation for declaration suit commences with the presentation of the partition suit in the year 1992 and the present suit in the year 2002 is barred by limitation. The learned single Judge further held that subsequent suit for declaration, is unsustainable on the grounds of res judicata, since one of the important steps taken by the court in partition suit is to ascertain the properties available for partition and accordingly passed the decree. The relevant portion of the judgment is as under: “5. It is a matter of record that the property in respect of which, the appellant seeks declaratory relief in O.S.No.12 of 2002, was one of the items in O.S.No.84 of 1992, and that the appellant herein is defendant No.1 in that suit. In a partition suit, one of the important steps taken by the Court is, to ascertain the properties that are available for partition. In that process, it undertakes the adjudication of title vis-à- vis the said properties. The appellant did claim ownership, in respect of that said item, and it was adjudicated by the trial Court. At any rate, the inclusion of the property and claim for partition, viz-a-vis that item, brings about change of exclusive title of the appellant. Therefore, the limitation can be said to have commenced with the presentation of O.S.No.84 of 1992. The present suit was liable to be dismissed, not only on the ground of limitation, but also on the ground of res judicata. Viewed from any angle, the filing of O.S.No.12 of 2002 cannot be sustained, and the trial Court has taken appropriate step in deciding the issue.” 26. The judgment relied on by the counsel for the appellant in Kasireddy Ramayamma v. Kasireddy Rama Rao (2 supra), is not applicable to the facts of the present case, since in the said judgment, the validity of a settlement deed was sought to be challenged in a suit for partition on the grounds of fraud and misrepresentation. This court held that separate suit under Section 31 of Specific Relief Act should be filed. In the said judgment, the aspect of res judicata and the limitation were not considered and the facts are totally different. 27. As rightly noticed by the trial court, in spite of the consistent findings given by all the courts in O.S.No.213/1992, A.S.No.59/1998 and S.A.No.623/2004 that the plaintiff failed to succeed in proving the execution of the sale deed, as envisaged under Section 67 of the Evidence Act, the plaintiff has not taken any steps in proving the said document in the present suit, by examining the scribe or attesting witnesses. Viewing from any angle, the trial court rightly dismissed the suit. 28. For the foregoing reasons, we do not find any ground for interference of this court in the appeal and the issue framed is answered in the negative. 29. Accordingly, the appeal fails and is dismissed. No costs. --------------------------------------- B.PRAKASH RAO,J --------------------------------------- G.CHANDRAIAH,J DATE: 28 --01—2011 AVS [1] 2006(4) ALT 64 [2] AIR 2000 AP 29 [3] AIR 1954 SC 82