ALAMENGADA MUDDAPPA Vs. ALAMENGADA KUTTAPPA

JUDGEMENT

(1.) Respondents 1 and 2 herein, instituted O.S.262/1989 in the Court of Civil Judge (Jr.Dn.), Virajpet, against the appellants and respondents 3 to 8 herein. The suit is for declaration and possession of plaint schedule properties. The defendants filed written statement and contested the suit. Learned Trial Judge raised 10 issues. Issue Nos. 4 and 6 were treated as preliminary issues. The suit was dismissed as barred by principles res-judicata, by answering issue No. 6.

(2.) Aggrieved, the plaintiffs filed R.A.4/2000 on the fife of the Dist. Judge / FTC -Virajpet. Considering the grounds raised in the appeal memo and the contentions urged for consideration by the learned Counsel, the learned appellate Judge raised 3 points for consideration. It was held that, principles of res-judicata cannot be made applicable to the case on hand. However, keeping the said point open to the parties to agitate before the Court below and since the Trial Court had not answered all the issues, the impugned judgment / decree was reversed, the appeal was allowed and the matter was remitted back to the Trial Court for fresh disposal by recording findings on all issues including issue No. 6.

(3.) Aggrieved, the defendants 1 to 5 in the suit, have preferred this miscellaneous second appeal. Sri G. Balakrishna Shastry, learned advocate appearing for the appellants, would firstly, contend that, the First Appellate Court has erred in law in not holding that O.S.262/89 is not maintainable, since the grievance sought to be raised therein relates to the execution, discharge and satisfaction of the decree dated 20.03.1972 passed in O.S.24/1969. Secondly, the lower appellate Court has erred in holding that, evidence need to be recorded on all the issues, when admittedly issue No. 7 relating to valuation i.e., payment of Court fee was already decided by the Trial Court and no grievance was made in the appeal as regards issue No. 7, Lastly, the First Appellate Court has erred in law in overlooking the basic facts that, the plaintiffs and defendants were co-sharers, properties were joint family properties and were subject matter of consideration in O.S.24/1969 for partition and separate possession and hence, the cause of action alleged in the suit is during the pendency of the final decree proceedings in O.S.24/1969 when the rights of the parties have not yet become absolute in respect of any area and any specific survey number and the issue sought to be adjudicated in O.S.262/1989 is barred on account of the provisions under Section 47 CPC.