VARUPANDA SEETHARAMA SWAMY Vs. ALLAM UGRA NARASIMHA MURTHY

JUDGEMENT

(1.) The substantial questions of law which arise for determination in this second appeal are : (1) Whether the judgment in an earlier suit field for permanent injunction wherein the plea of family arrangement and consequential partition of the properties thereof was rejected, would constitute res judicata in a later suit, also field for injunction, even though the final judgment in Second Appeal arising out of the earlier suit, reserved a right in favour of the plaintiff for establishing his rights and claims by filing a regular suit? (2) Whether the lessee is a privy to the lessor and the judgment against the lessor in an earlier suit filed by him for an injunction would bind the lessee in a later suit to which the lessor is not a party within the meaning of S. 11 of the Civil P. C. ?

(2.) Before answering the relevant format of the case may briefly be set out; Defendants 1 to 3 are the appellants herein. The sole plaintiff is the respondent. The plaintiff, Allam Ugra Narasimhamurthy, filed the suit alleging that his brother-in-law, V. Appala Suryanarayana, is the son of the late Butchaiah by his first wife, that the defendants 1 to 3 and one V. Maheswararao are the sons of the said Butchaiah by his second wife, that the said Butchaiah was the owner of the plaint schedule property and the other properties, that he executed a Will dated 2-12-1954 in respect of all his properties, that by virtue of the said Will, the two brothers of the said Butchaiah got half share in those properties; while his brother-in-law, Appala Suryanarayana, got 1/6th share, that after the death of the said Butchaiah, the two brothers took their half share in the properties, that his brother-in-law and defendants 1 to 3, their brother and mother lived jointly for some time, that his brother-in-law acquired some properties with his own earnings in his name as well as in the name of the 1st defendant benami, that because of some misunderstandings between his brother-in-law and the defendants, his brother-in-law agreed to part with some properties earned by him on the advice of the elders for the sake of family peace, that there was a family arrangement reduced to writing on 26-11-1968, that by virtue of the said family arrangement, the plaint schedule land and other properties fell to the share of his brother-in-law, that his brother-in-law was in exclusive possession and enjoyment of the plaint schedule land and other properties since then, that his brother-in-law leased out the plaint schedule land to him under an agreement dated 6-10-1976, that he is in possession and enjoyment of the same as a lessee of his brother-in-law, that the defendants 1 to 3 and their brother Maheswararao, who have been enjoying the properties that fell to their share, have been trying to disturb his possession of the plaint schedule land, that they also committed theft of the coconuts in the said land, that the value of the coconuts stolen away comes to Rs. 1406-90 ps. and that his possession, therefore, be protected by away of permanent injunction and damages in the sum of Rs. 1403-40 ps. be awarded towards the value of the coconuts.

(3.) The defendants averred that the plea of family arrangement is not true, that Butchaiah took his share in the properties left by his father after severance from his two brothers, and the said properties of their father, after his death, have been in joint possession and enjoyment of themselves, their brother Maheswararao and the plaintiffs brother-in-law, Appala Suryanarayana, that the plaintiffs brother-in-law, who is their step-brother, has been managing the said properties, that there was no partition of the said properties between themselves and their step-brother, that their step-brother is not in exclusive possession and enjoyment of the same, that the lease set up by the plaintiff is false and so the plaintiff is not entitled to the permanent injunction and the damages claimed.