MORUSU LAKSHMAMMA Vs. BELLA MAGAPPA

JUDGEMENT

(1.) The Plaintiff is the appellant herein. The defendants - respondents herein filed earlier a suit O.S.No. 27/66 on the file of the District Munsif's Court, Dharmavaram for partition and separate possession of their 1/3rd share. A preliminary decree was passed. Thereafter, in spite of long passage of time no application for final decree was made by either of the parties. But now the 5th dafendant, in the earlier suit filed this suit O.S.No. 105/74 on the file of the District Munsif's Court, Dharmavaram for partition and separate possession of 2/3rd share. It is on this format the question which was raised by way of defence by the defendant was whether the suit was maintainable as the earlier suit constitutes res judicata. The trial Court held that the suit was not maintainable and it was open to the plaintiff to apply for his separate share in the preliminary decree passed in the earlier suit. On appeal the same was confirmed. Hence this Second Appeal.

(2.) The substantial question of law in this Second Appeal is whether the suit is maintainable and whether the second suit is barred by res judicata because of the preliminary decree in the earlier suit.

(3.) Sri Venkataramana, learned counsel for the Appellant (Petitioner) contended that in this suit what is sought for is his 2/3rd share in the property and while not disturbing the right that already accrued to the defendants herein as per the previous suit in O.S.No.27/66. Reliance was placed on a decision reported in Mallayya vs. Talari Tippanna (1) A.I.R. 1955 Andhra 81 wherein Subba Rao, C.J., as he then was, held :-