Kumarayya, J. - (1.)This short point that falls for determination in this second appeal is whether the suit of the plaintiff is barred by the principle of res judicata on account of the decision in O. S. 152 of 1942 against the 5th defendant which has become final having been affirmed by the Appellate Courts. Of course, there is another point raised, grounded, as it is either on what is alleged to be want of cause of action for the plaintiff or extinction of her right, if any, by reason of the sale deed in favour of the 5th defendant. Based as the action of the plaintiff is on the theory and assertion that her sale deed is a valid sale deed, it is neither proper nor possible for us to pronounce on this question when it is obvious that if the question of res judicata be decided in favour of the plaintiff, correct decision of the said question can be based only on the facts that may be investigated and found by the Courts below. Of course if the question of res judicata is held against the plaintiff the other question would not arise at all for consideration. So then the only point that we have to decide now is the question of res judicata.
(2.)The facts of the case are in a narrow compass. The suit property, acres, 3.64 cents in extent, is a zeroiti land situate in Thangellamudi Village originally belonging to Veburupaka Subbayya, the father of the plaintiff. The said Subbayya, according to the case of the plaintiff, has executed a will on 5-5-1941 bequeathing to her all his property including the suit property on condition that she should pay off all his debts and maintain for life his wife Sobhanadri. The plaintiff, as a result, became the owner in possession of al the properties on the death of her father. She however, conveyed the suit land to her husband, the 5th defendant, under a sale deed dated 14-7-1941 to meet the expenses of the obsequies and pay off the debts of her father. Her husband, thereafter, continued in possession of the suit land. While so, defendants 1 to 3 sought to physically dispossess him on the basis of a sale deed registered on 19-1-1942 long after the death of Subbayya and when the 5th defendant got an order in his favour under Section 144, Cr. P.C. they brought against him O. S. No. 152 of 1942 on the file of the District Munsifs Court, Eluru. That was an action for recovery of possession laid on the basis that their father Appanna got an agreement of sale from Subbayya on 18-5-1941 and a sale deed thereafter on 2-6-1941 in relation to the suit property. The latter document was executed not only by the Subbayya but also by Ghantayya alleged to be his adopted son. Subbayya died the very next day before the sale deed could be registered. A few days later./ Appanna also died on 17-6-1941. Defendants 1 to 3 therefore presented the sale deed for registration before the Registrar. Whereas Ghantayya admitted the execution of the document, Sobhandri, the widow of Subbayya, denied the sale deed. Eventually the document was registered on 19-1-1942. Thereafter as the defendant No. 5 obtained orders in his favour under Section 144 Cr. P.C. defendants 1 to 3 filled the said suit. To that suit defendant No. 5 was the sole defendant. Defendant No. 5 disputed the truth and validity of the sale deed alleged to have been executed by Subbayya and Ghantayya. He denied also that it was supported by consideration. He further denied that Ghantayya was the adopted son of Subbayya. He pleaded that during his life-time, Subbayya had executed a will in pursuance whereof his wife became the owner of the suit property. Later she executed, for valuable consideration, a sale deed in his favour as a result of which he came in lawful possession of the suit land. In this state of pleadings the District Munsif, after inquiry came to the conclusion that the sale deed was true and valid and supported by consideration and binding on the defendant. that Ghantayya was the legally adopted son of Subbayya and that the will alleged was not true. As a result he decreed the suit. These findings were affirmed in appeal and finally in second appeal in S. A. No. 1514 of 1946 decided on 19/08/1948. It is significant to note that soon after O. S. No. 152 of 1942 was decided against the 5th defendant herein, Ghantayya claiming to be the adopted son of Subbaya brought a suit O. S. No. 40 of 1947 in the District /Court, Eluru against the plaintiff herein and also her husband, defendant No. 5 for possession of all other properties that subbayya died possessed of. But that suit ended wholly in favour of the plaintiff and defendant 5. Defendants 1 to 3 herein were. however, not made parties to that suit. It was found therein that the will in favour of the plaintiff was true and valid and that Ghantayya was not the legally adopted son of Subbayya. Ghantayya preferred an appeal A. S. 78/50. But that was ultimately withdrawn by him. As a result the decision on O. S. No. 40 of 1947 became final. Before that suit was filed the 5th defendant. In execution of the decree in O. S. No. 152 of 1942, was dispossessed from the suit land in April. 1946. The plaintiff thereupon gave notice to defendants 1 to 3 demanding possession of the land and thereafter brought the present suit impleading also defendant No. 4 as the alienee in possession from defendants 1 to 3. She prayed that a decree for possession of the suit property may be granted in her favour by ejecting the defendant 1 to 4 in order to enable her to perform the warranty of title and peaceful enjoyment of the suit property which was necessary as warranted by her sale deed in favour of the 5th defendant and that an account be taken of the income of the suit property from April 1946, which was the date of dispossession of defendant 5 until the date of putting him back into possession. She also, in the alternative claimed that if the sale deed in favour of the father of defendants 1 to 3 ultimately be proved to be true and valid, a decree may be granted in her favour for the unpaid purchase money due on the sale deed with a charge on the suit property for the same.
(3.)Defendants 1 to 4 resisted the suit on the basis that the will by Subbayya was not true that after the sale by Subbayya in favour of their father, there remained no interest left in the property with the deceased which could pass off to the plaintiff, that at any rate the plaintiff was bound by the decree and judgment in O. S. No. 152 of 1942 an d that they themselves are not bound by the decision in O. S. No. 40 of 1947 to which they were not parties that the plaintiff is not entitled in the alternative to any sale amount as nothing was due from defendants 1 to 3, the entire sum having been paid to Ghantayya.