A VEERANARAYANA Vs. K BHADRAMMA

JUDGEMENT

(1.) The present lis is between A.Veeranarayana and the heirs of Bramhaiah in relation to plaint schedule property. The said A.Veeranarayana is the appellant in both the Appeals. The said party is the 3rd defendant in O.S.No.2085/88 as originally instituted which was renumbered as O.S.No.219/95 and the plaintiff in O.S.No.955/82 as originally instituted, renumbered as O.S.No.493/85 on the file of Additional Special Judge for SPE & ACB cases-cum-V Chief Judge, City Civil Court, Hyderabad. Common evidence was recorded and A.Veeranarayana was examined as P.W.1 and K.Sivaram, one of the sons of Brahmaiah, 2nd defendant in O.S.No.493/85, was examined as DW-1. Exs.A-1 to A-75 and Exs.B-1 to B-47 were marked. The suit O.S.No.493/85 was instituted by the said A.Veeranarayana, hereinafter referred to as plaintiff against his sister and her sons, heirs of Bramhaiah, for declaration of title, recovery of possession etc., relating to H.No.7-1-282/13, Scientific colony, Balkampet, Hyderabad. The said suit was dismissed on 13-3-1987 on the simple ground of bar of res judicata and the matter was carried by way of Appeal C.C.C.A.No.123/87 wherein the learned Judge of this Court made an order of remand and the relevant portion of the same reads as hereunder :

(2.) The written statement in O.S.No.493/85 virtually is the plaint in O.S.No.219/95 aforesaid. Likewise, the plaint in O.S.No.493/85 is the written statement in O.S.219/95. The 1st and the 2nd defendants in O.S.No.219/95 are the' Deputy Registrar, office of Co-operative Society (Housing), Chirag Ali Lane, Hyderabad and the Secretary, Scientific Engineering Workers Industrial Co-operative Housing Society, Scientific Colony, . premises No.7-1-2829, Balkampet, Hyderabad. The said suit O.S.No.219/95 was filed for the relief of specific performance directing defendants 1 and 2 to execute a sale deed and further the sale deed dated 25-3-1982 executed by 2nd defendant therein in favour of 3rd defendant also had been questioned. In view of the remand, inasmuch as the subject matter of both the suits being one and the same, the evidence of the appellant/plaintiff in O.S.No.493/85 was recorded as PW-1 and that of the 2nd defendant in the said suit was recorded as DW-1 and Exs.A-1 to A-75 and Exs.B-1 to B-47 were marked as aforesaid and on appreciation of the evidence available on record the learned Judge arrived at a conclusion that the plaintiff is not entitled to the reliefs prayed for in O.S.No.493/85 and the defendants in the said suit, the plaintiffs in O.S.No.219/95, are entitled to the relief prayed for and accordingly dismissed O.S.No.493/85 and decreed O.S.No.219/95 directing the 2nd defendant therein, the Society, to execute registered sale deed in favour of the defendants in O.S.No.493/85, hereinafter referred to as defendants, the plaintiffs in O.S.No.219/95, within specified time. Aggrieved by the same, the respective Appeals are preferred.

(3.) Sri Jagannadha Sharma the learned Counsel representing the appellant in detail had explained the stand taken by the appellant/plaintiff and would contend that in the light of Exs.A-1 to A-61 it had been established that the amounts were paid by the plaintiff and the learned Counsel also placed heavy reliance on Ex.A-62 and made elaborate submissions on the strength of Ex.A-62 stating that the said document was not the subject matter of the prior litigations and the doctrine of res judicata and the applicability thereof may have to be appreciated in this background. The learned Counsel also further had commented that though the name of A.Veeranarayana is shown as though he is one of the executants in the sale deed Ex.A-62 in the beginning he had not signed the document and hence the findings recorded in this regard to the effect that the said document is invalid on that ground cannot be sustained. The learned Counsel also made elaborate submissions in relation to Exs.B-7 and B-17 and would comment that these litigations were fought at a time when Ex.A-62 was not in existence. The learned Counsel also would point out that in the light of the order of remand made in C.C.C.A.No.123/87 the findings if any recorded in Exs.B-7 and B-17 would not operate as res judicata and hence these matters to be independently decided. The learned Counsel also would explain that in the light of the pleadings in O.S.No.2761/76 and 2545/77 it is clear that those litigations were fought on the limited ground of tenancy though incidentally the title had been gone into and at any rate in the light of the subsequent event Ex.A-62, the said findings would not operate as res judicata. The learned Counsel also would maintain that even the directions if any issued in O.S.No.1039/82 had been issued in the backdrop of the circumstances as on the said date and the said findings are of no consequence in the light of the subsequent events. The learned Counsel made stress on the words ".....heard and finally decided...." occurring in Section 11 of the Code of Civil Procedure and would contend that the prior findings would not operate as res judicata in the facts and circumstances of the case. The learned Counsel had taken this Court through oral and documentary evidence and the findings recorded by the trial Court and would comment that in the facts and circumstances of the case the said findings cannot be sustained. The learned Counsel would conclude that at any rate the suit filed by the defendants, heirs of Bramhaiah is not within limitation and hence the relief could not have been granted.