BRAMAKRISHNAIAH Vs. T SCHANDRASEKHARA RAO AND

JUDGEMENT

(1.) This litigation relates to the redemption of a mortgage with possession of the property in dispute effected in the year 1905 more than four decades ago and ever since, the rights to the property are fluctuating amongst different parties and their representatives whose respective claims will be discussed later.

(2.) The suits were filed in the Court of the District Judge, Mysore. Original Suit No. 45 of 1945-46 is the earlier suit in which the appellant before this Court was impleaded as defendant 6 and the respondents to this appeal as defendants 4 and 5 respectively. The plaintiff in that suit sought for a declaration of title to the suit property in the character of the son and heir of one Hyath Bi who it is alleged was the previous owner of the property and also for a declaration that the sale by defendants 1 to 3 and their mother in favour of defendant 6 is null and void and that defendants 4 and 5 were in possession of the property as trustees for and on behall of the plaintiff. The second suit, O. S. No. 3 Of 46-47, from which this appeal arises was filed by the appellant as plaintiff against the present respondents for redemption of the suit property and for damages. By consent of the parties, both the suits were consolidated and tried together. Common evidence was let in and a single judgment was given by the same Judge on the same day. The conclusions in the judgment were followed up in both the decrees, which however were drawn up separately. Both the suits were dismissed. The plaintiff in O. s. No. 3 of 46-47 has filed this appeal against the judgment and decree in that suit but no appeal has been filed by any of the parties in O. S. No. 45 of 1945-46.

(3.) At the outset Sri Mirle Lakshminaranappa, on behalf of the respondents, raised a preliminary objection for the hearing of the appeal to the effect that the appeal is barred by the principles of 'res judicata'. Arguments on the preliminary objection as also on the merits of the case were heard. Before discussing the nature of the objection set forth above, it is useful to set out the findings on the relevant issues in both the suits for a proper appreciation of the objection raised. The lower Court recorded its findings in O. S. No. 45/45-46 regarding plaintiff's claims in that suit thus : "On the first issue, I hold that Hyath Bi was not the owner of the suit property. On the second issue, I hold that the plaintiff is not the legitimate son and heir of Hyath Bi as alleged by him". The findings on the other issues concerning the parties to this appeal were recorded as follows " On the 8th issue I hold that defendants 4 and 5 became the owners of the suit house as pleaded by them. On the 9th issue I hold that the title to the suit house has not passed on to defendant 6 by virtue of the sale held on 20-6-40 and 8-7-42 as pleaded by him. On the 10th issue I hold that defendant 6 has not a right of redemption as pleaded." In Original Suit No. 3 of 1946-47 in which the appellant was the plaintiff, the findings on the issues were as under "On the 1st issue, I hold that the plaintiff has not acquired the equity of redemption and he is not entitled to redeem the suit property. On the second issue I hold that the defendants have become the absolute owners of the suit property and the suit property therefore is not liable for redemption". The first and second issues in the latter suit are the same as the 10th and 8th issues in the earlier suit.