Patanjali Sartri, J - (1.)This second appeal arises out of a suit brought by the appellant for redemption of a mortgage and recovery of possession of the mortgaged properties from respondents 1 to 13 who were alleged to be in possession thereof as mortgagees and for other incidental reliefs. The suit was dismissed by both the Courts below on the preliminary ground that the question of the appellant's title to redeem is foreclosed as res judicata by reason of the decision in A.S. No. 62 of 1928 of the Subordinate Judge's Court of Narsapur. Hence the appeal.
(2.)The facts giving rise to this plea of res judicata may be briefly stated. The properties in question originally belonged to one Seshayya who died without issue in 1877. He executed the mortgage now sought to be redeemed in favour of one Subbaraju whose descendants are respondents 1 to 13. Seshayya's widow who succeeded to his properties died in April, 1921. In March, 1925, the appellant purchased the properties in suit from respondents 14 to 16 herein who were alleged to have inherited them on the widow's death as the sister's sons and nearest reversioners of Seshayya. Soon after this purchase, the appellant brought O.S. No. 320 of 1925 in the District Munsif's Court of Tanuku against respondents 1 to 13 and the deceased first defendant as mortgagees in possession for the same reliefs that are now claimed against them, impleading also his vendors, the respondents 14 to 16, as defendants pro forma. The respondents 1 to 13 then pleaded inter alia, as they do now, that the appellant was not entitled to redeem by virtue of his purchase from the sisters sons of Seshayya, as one Perraju who was an agnatic relation of Seshayya was the nearest reversioner entitled to succeed on the widow's death. This plea was upheld by the first Court and was confirmed by the Appellate Court in A.S. No. 62 of 1928 referred to above. Perraju was not impleaded in that suit, and his sons applied in I.A. No. 1083 of 1931 in A.S. No. 62 of 1928 to implead themselves as respondents in that appeal but the application was dismissed. Thus neither Perraju nor his sons were parties to the previous litigation. In the present suit, however, they have been impleaded as defendants 18 to 21 and the appellant has asked for a declaration that they are not entitled to the properties of Seshayya as their father Perraju was not his heir. It has to be mentioned that respondents 1 to 13 have since obtained a transfer of all such rights as these defendants who are respondents 17 to 20 herein might have to the suit properties.
(3.)The appellant's learned Counsel has raised two contentions before me. First, that the present suit is not barred by the principle of res judicata as the appellant has impleaded the sons of Perraju and prayed for the declaration referred to above against them and, further, the respondents 1 to 13 having also relied upon their purchase of the right, title and interest of the respondents 17 to 20 must now be regarded as litigating under a different title. In other words, there can be no res judicata as the parties are not the same and they are also not litigating under the same title. Secondly, the learned Counsel urged that, in any case, the question of the alleged adoption of the fourteenth respondent, one of the appellant's vendors, by one of the two sisters of Seshayya having been expressly left open by the appellate Court in the previous litigation, the appellant's title, in so far as it was claimed to have been derived from that respondent, cannot be said to be res judicata.