KEELU MADANA MOHANA Vs. GORAKALA VARAHALU

JUDGEMENT

(1.) KEELU Mdana, the defendant in O. S. No. 7/88 on the file of Subordinate Judge, Sompeta, is the appellant and the respondent is the plaintiff. The respondent/plaintiff herein filed the said suit for partition and separate possession and the trial Court on the respective pleadings of the parties settled issues, examined PW-1 and DW-1 and marked Exs. A-1 to A-3 and ultimately passed a preliminary decree for partition of the suit schedule properties into two equal shares and for allotment of one such share to respondent/plaintiff. Aggrieved by the same, the present Appeal is preferred.

(2.) SRI Sadasiva Reddy, the learned Counsel representing the appellant made the following submissions. The learned Counsel would maintain that the present suit is decreed only on the strength of observations made in the Judgment in A. S. No. 52/83 on the file of subordinate Judge, Sompeta, marked as Ex. A-1. The learned Counsel would submit that respondent/plaintiff herein filed prior suit O. S. No. 131/77 on the file of District Munsif, Sompeta for mere injunction and subsequently converted the suit praying for the relief of possession which was decreed and the matter was carried in Appeal as A. S. No. 52/83 wherein the same was reversed and the Appeal was allowed. But however, an observation was made that she may claim the relief of partition and taking advantage of the same, the present suit had been instituted. The learned Counsel also would submit that the appellant/defendant being the surviving coparcener by operation of survivorship and in view of Section 6 of the Hindu Succession Act, 1956, hereinafter referred to as "act" for the purpose of convenience, he would be entitled to these properties and unless the severance of status or separate enjoyment of the properties by the deceased brother of the respondent/plaintiff is established, the question of the respondent/plaintiff succeeding to the property by virtue of Section 18 of the Act, read with the Schedule of the aforesaid Act, would not arise. The learned Counsel also would maintain that though some evidence was let in the prior suit except marking the Judgment no evidence had been adduced and on the sole testimony of the plaintiff as PW-1, the suit cannot be decreed.

(3.) PER contra Srinivas, the learned Counsel representing the respondent/plaintiff would maintain that the Issues which had been settled in the prior litigation and the Points for consideration which had been framed before the appellate Court clearly go to show that this question whether the plaintiff herein also would succeed to the property or not had in fact been decided and the said finding being finding inter parties in the prior litigation they do operate as res judicata. The learned Counsel also would submit that adducing of any further evidence in this regard would not alter the situation in any way inasmuch as relating to separate enjoyment of the properties there is evidence available on record and the fact that the witnesses had deposed about his aspect in the prior litigation also was taken note of by the trial Court and findings had been recorded in this regard. The learned Counsel also had pointed out that in the present suit, DW-1 while deposing wanted to get over the prior admissions made in the prior litigation, but however Ex. A-2 and A-3 contradictions marked in the deposition in O. S. No. 131/77 would clearly go to show that the appellant having been unsuccessful in getting rid of the finding relating to partition in the prior litigation, though ultimately the respondent/plaintiff was unsuccessful in the Appeal, had taken such a stand and hence the same cannot be said to be a justifiable stand. The learned Counsel also would maintain that the natural sister of the deceased who is entitled to succeed to the property by virtue of Section 18 of the Act had rightly instituted this suit and based on the prior findings the learned Judge arrived at the correct conclusion and such findings do not warrant any interference at the hands of the appellate court. The learned Counsel also placed reliance on the decisions Kalvani Vs. Narayanan (AIR 1980 S. C. 1173), Sulochana Amma Vs. Narayanan Nair (AIR 1994 S. C. 152) and P. G. Reddy Vs. Golla Obulamma (AIR 1971 A. P. 363 ).