SYED ALI Vs. SYED NOOR MOHAMMED

JUDGEMENT

(1.) The petitioner and the respondent are brothers. The respondent filed O.S. No. 284 of 2010 in the Court of III Additional Chief Judge, City Civil Court, Hyderabad, against the petitioner, for the relief of declaration to the effect that he is the absolute owner and possessor of the suit schedule property i.e. premises bearing No. 16-8-280, Chanchalguda, Hyderabad, and for perpetual injunction to restrain the petitioner from interfering with the peaceful possession and enjoyment thereof. The respondent has narrated the manner in which he is said to have acquired the title to the property. The petitioner filed written statement, opposing the suit. One of the grounds urged by him was that the question of title to the property was determined by the Court of VII Senior Civil Judge, City Civil Court, Hyderabad in O.S. No. 1409 of 1992 and that the decree passed therein was confirmed in A.S. No. 131 of 2001 on the file of the XII Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad. The petitioner filed I.A. No. 338 of 2011 under Rule 11 of Order VII read with Section 151 C.P.C., with a prayer to reject the plaint, on the ground that it is hit by principle of res judicata. The respondent filed counter, opposing the I.A. He raised the plea that the application filed by the petitioner is not maintainable in law. The trial Court dismissed the I.A., through order, dated 07.04.2011. Hence, this revision.

(2.) Sri Peri Prabhakar, learned counsel for the petitioner, submits that once the question of title to the suit schedule property was determined in earlier round of litigation, the present suit by the respondent is not maintainable at all. He contends that though the respondent was held to be entitled to half of the suit schedule property, he filed the suit to declare that he is the absolute owner of the entire property. Learned counsel submits that the trial Court has taken a hyper-technical view of the matter and that the petitioner is subjected to the ordeal of going to the trial, despite the fact that the issue has already been decided.

(3.) Sri M. Govind Reddy, learned counsel for the respondent, on the other hand, submits that the issue that fell for consideration in O.S. No. 1409 of 1992 is substantially different and the finding therein does not operate as res judicata in the present suit. He further submits that the question as to whether a finding on an issue, in an earlier suit operates as res judicata in a subsequent suit, is a mixed question of fact and law, and at the best, it can constitute the subject-matter of an issue, but not a ground to reject the plaint in the subsequent suit. He contends that Order VII Rule 11 C.P.C., does not take in its fold, the ground of res judicata.