Decided on November 14,1969


Referred Judgements :-



- (1.)This Second appeal is brought by the Defendants 2 to 8 and 15 to 17 in O. S. 63 of 1953 on the file of the Subordinate Judge Court Guntur, The suit was filed by two plaintiffs who are respondents 1 and 2 in this appeal for a declaration of their title to the suit property and for recovery of possession and for future profits and costs of the suit.
(2.)The suit property belonged to one Konduru Venkata Raghavacharyulu having been inherited by him as the daughter's son of one Gomatbam Peda Narasimhacharyulu, who filed a suit O. S. 20/36 on the file of the Subordinate Judge's Court, Guntur against defendants 1 to 7 and several others for possession and other reliefs and obtained a decree and took symbolical possession through court, Subsequently he sold the property to the 2nd plaintiff under a sale deed dated 22-5-1943, The 2nd plaintiff thereafter filed a suit on the file of the District Munsiff's court, Guntur for partition and separate possession of the 1/4th share. Defendants 1 to 8 raised various pleas, but the suit was ultimately decreed and confirmed in Second Appeal. Thereafter the partition was effected and the second plaintiff took possession through Court of his share on 17-12-1946. It was stated that the defendants 1 to 8 joined hands with Defendants 9 to 11 and got them to file O. S. No, 118/47 on the file of the Sub Court, Guntur for declaration of their title to the property and for possession ptc. This suit was dismissed on 6-2-1950. Notwithstanding the several legal proceedings mentioned above in which the claim of the defendants 1 to 8 wis negatived the defendants trespassed upon the suit property prior to the institution of the suit filed by the Respondents 1 and 2 as O. S. 396 of 1950 on the file of the District Muns ff's Court, Guntur out of which this Second Appeal arises, In the plaint it was stated that the 2nd plaintiff leased out the suit land to the 1st plaintiff under a lease deed dated 17-5-1950. The plaint as origin lly pre ented claimed the relief of possession on the ground of di-possrssion The defendants contested the suit The suit appears to 1 ave b en kept pending for more than 1 years and thereafter on 24-12-1952 the plaint was returned by the District Munsiff's Court for presentation to the proper count on the ground that the Court bad no pecuniary jurisdiction to entertain the suit The plaint was taken return of on 10-1-1953 and represented to the Sub Court, Guntur on 10-3-1953. The representation was made by the 2nd plaintiff above with an allegation in the plaint that the 1st plaintiff was colluding with the defendants and did not join the 2nd plaintiff. This suit was taken on file by the Sub Court as O. S. 63/53. The suit dragged on for over 12 years and it is not necessary to refer to the several causes which resulted in delay in the disposal of the suit. It is sufficient to mention that on 10-3-1965 the 2nd plaintiff filed an application I. A. 563 of 1965 for amendment of the plaint for introducing paragraphs 4-A, 5-A, 7-A, and 9A in the plaint and for claiming the relief for a declaration of a title to the suit land and for recovery of possession of the suit land on the basis of such declai ration of title. After payment of the necessary court fee, this amendment was allowed by the Court on 18-3-1965 subject to payment of costs and costs were duly paid and received by the learned Counsel for the Defendantsi The suit was finally disposed of holding that the plaint was properly presented by the 2nd plaintiff and that the suit was maintainable. It was also found that the decisions in O. S. 20/36 and O. S. 315/44 operated as res-judicata against the defendant and that the suit as amended was not barred by limitation. In this view, the suit was decreed with costs against defendants 2 to 8 and 15 to 17, declaring the plaintiffs' title to the property and directing the said defendants to deliver possession of the same to the 2nd plaintiff and further directing them to pay future profits from the date of (he suit till delivery of possession after ascertaining the same in a separate proceeding. The suit against defendants 10 to 14 was dismissed, As the 1st plaintiff did not join the suit, so far as he was core rned, the suit was dismissedi The defendants 2 to 8 carried the matter in appeal to the District Court, Guntur. It was contended in the appellate Court, that the suit which was originally presented by the 2nd plaintiff in the Munsiff's Court was represented to the Sub Court by the 2nd plaintiff only and that therefore, it could not be treated as a continuation of the original suit. This objection was upheld and it was held by the court below that the suit should be taken to have been instituted only on 10-3-1953 by the 2nd plaintiff. Then the defendants challenged the amendment of the plaint allowed by the trial court as being not valid in law. But the lower court found that the amendment was within the jurisdiction of the trial court and that though the amendment was brought after an inordinate delay and even though by that time the defendants had acquired a right to set up the plea of limitation, the amendment converting the suit into one based on title was held to be proper. The question of resjtidicata was also decided against the defendantsappellants. In this view, the appeal was dismissed with costs. The cross objections preferred by the 2nd plaintiff with regard to the costs of the suit aga nst some of the defendants was also dismissed but without costs, rience this Second appeal.
(3.)The learned Counsel for the appellants first sought 'o submit that the decision of the lower courts on the question of res-judi- cata is erroneous but the learned counsel nas not been able to successfully challenge the decision of the lower Court. Admittedly in the prior suits between the same parties, the title of the 2nd plaintiff and his predecessor in title was upheld. Therefore it must be held that the question of resjudicata was rightly decided by both the courts below.

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