KALISETTI SUBBARAYUDU Vs. PAGADALA BALARAMAYYA
HIGH COURT OF ANDHRA PRADESH
Referred Judgements :-
MOTURI SESHAYYA V. VENKATADRI APPA RAO
KEDAR NATH V. SHEO SHANKAR
RAMCHANDRA DEO V. RAMAMURTHI
NARAYANA AYYANGAR V. SUBRAMANIA CHETTIAR
MOHAMMAD KHALIL KHAN VS. MAHBUB ALI MIAN
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(1.)This is an appeal by the plaintiffs against the decree and Judgment of the Court of the Subordinate Judge of Nellore, confirming those of the District Munsif of Nellore in O. S. No. of 1948, a suit filed by the appellants for recovery of possession of the plaint schedule property from the defendant and for mesne profits. Both the Courts, dismissed the suit on the ground that the suit was barred by res judicata as well as by O.2, R. 2, Civil P. C.
(2.)The facts found or admitted by the parties may be briefly stated: One Kalisetti Narasimhalu is propositus. He had five sons. Govindamma, the widow of one or the sons, filed a suit O. S. No. 260 of 1918 on the file of the District Munsifs Court,Nellore, for partition of the family properties against Narasimhalu and his sons. The defendant pleded that the property, which is the subject-matter of the suit, was the sell-acquired property of Narasimhalu.That suit was compromised and on 23-4-1920, a preliminary decree for partition was passed. Pusuant to the preliminary decree a Commissioner was appointed who divided the properties into six shares. Final decree was passed on 18-9-1924. When an appeal was filed in the Subordinate Judges Court against that decree, it was confirmed withsome modifications. After the preliminary decree, Narsimhalu mortgaged most of the property covered by the partition suit under Ex. B. 8 dated 12-2-1923, to one Subbaramireddi on the basis that the properties were his self-acquisitions, contrary to the terms of the compromise decree.After the death of Narasimhalu, Subbaramireddi filed O. S. No. 701 of 1924 on the file of the District Munsifs Court, Nellore, to enforce the said mortgage, impleading as defendants all the sons of Narasimhalu. The present 1st plaintiff was also one of the defendants. The sons remained ex parte and a mortgage decree was passed in that suit. In execution of the final decree made therein, the mortgaged properties were brought to sale and were purchased by one Pattabirama Reddi who sold it to the defendant under the sale deed Ex. B. 11 dated 7-11-1941 and defendant took possession of the property purchased by him including the well.The 1st plaintiff, his brothers and the grandsons of Narasimhalu filed O. S. No. 725 of 1943 against the defendant claiming that the defendant, who had only 1/6th share in the well, hadno right to close the well.
(3.)The defendant contended that the acquired exclusive right to the entire property including the well under the sale deed dated 7-11-1941, from the Court auction purchaser in O. S. No. 701 of 1924. The learned District Munsif held that the plaintiffs were entitled to 5/6th share and the defendant was entitled only to 1/6th share on the ground that the court auction purcahser acquired only Narasimhalus interest in execution of the aforesaid decree.Both parties preferred appeals to the Subordinate Judges Court. It was, inter alia, contended before the learned Subordinate Judge that the decree in O. S. No. 701 of 1924 operated as res judicata, and, therefore, the plaintiff in O. S. No. 725 of 1943 could not rely upon the earlier decree in O. S. No. 260 of 1918, wherein Narasimhalu was given only 1/6th shasre in the joint family properties.The learned Subordinate Judge held that the decision in O. S. No. 701 of 1924 did not operate as res judicata on the question of title to the property and, on that basis, confirmed the decree of the District Munsif.
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