MOHD AZMATH KHAN Vs. MYAKALA BEERAIAH

JUDGEMENT

(1.) The unsuccessful plaintiffs in O.S.No.135/89 on the file of Subordinate Judge, Karimnagar, preferred the present Appeal. The 1st plaintiff/1st appellant herein died and his legal representatives were brought on record. Likewise, respondents 17 to 19 were brought on record as legal representatives of the deceased 14th respondent and respondents 25 to 27 were brought on record as the legal representatives of the deceased 13th respondent. The suit was filed for partition and separate possession of open land in S.No.1169 of Jyothinagar, Mukkarampura, Karimnagar, admeasuring Acs.1-34 guntas within the specified boundaries. The learned Judge on the respective pleadings of the parties having settled the Issues recorded the evidence of PW-1 to PW-3, DW-1 to Dw-3, marked Exs.A-1 to A-16 and also Exs.B-1 to B-17 and dismissed the suit principally on two grounds - one being that on the strength of Ex.A-1, the agreement, without enforcing the same the suit for partition cannot be maintained and yet another ground that the prior proceedings and the Judgments and decrees made therein would operate as res judicata. Aggrieved by the same, this Appeal is preferred.

(2.) Submissions of Sri M.V.Bharathi, Counsel representing the appellants : Sri Bharathi, the learned Counsel representing the appellants made the following submissions. The learned Counsel had pointed out that the twin grounds on which the relief was negatived were that the suit was based on an agreement and without enforcing the same the suit claiming the relief of partition cannot be maintained and the other that the same is barred by res judicata, cannot be sustained in the light of the findings made inter-parties in L.P.A.No.338/88. The learned Counsel also would maintain that the evidence of PW-1 to PW-3 and Exs.A-1 to A-16 had not been appreciated in proper perspective. The learned Counsel also had emphasized on Ex.A-7 sale deed which was not questioned and in view of Ex.A-7, the Counsel would maintain that it can be inferred that at least Ex.A-1 was acted in part. The learned Counsel also had taken this Court through the evidence available on record and would submit that DW-3 had supported the case of the appellants/plaintiffs in toto. The learned Counsel also pointed out that the extents involved in the prior proceedings and in the present suit are different and this is an independent cause of action based on the agreement Ex.A-1 and hence the suit is perfectly maintainable. The learned Counsel also had taken this Court through the contents of the relevant notices in general and Ex.A-13 in particular and had pointed out to certain admissions. The Counsel also pointed out that the revenue records would go to show that these properties stand in the name of Narsaiah, the father of DW-3. The learned Counsel also would maintain that in the light of the specific grounds raised in the Appeal, the Judgment and decree of the trial Court cannot be sustained and the suit may have to be decreed as prayed for.

(3.) Submissions of Sri P.V.Vidyasagar : Sri P.V. Vidyasagar, the learned Counsel representing Sri K.Rajareddy, the Counsel on record representing the legal representatives of 13th respondent/13th defendant, had taken this Court through the order made in L.P.A.No.338/88 and also had pointed out to the proceedings O.S.No.183/69, A.S.No.27/71 and S.A.No.329/78 and also to O.S.No.185/75 and A.S.No.1418/81 and would explain that the principal question which is being agitated by the appellants in fact had been agitated in the prior proceedings and hence the said findings definitely would operate as res judicata. The learned Counsel also had placed strong reliance on Ex.B-2, the deposition of a dead person which is consistent with the pleading and the Counsel also would maintain that the same could be looked into being a prior statement made by a dead person within the meaning of Section 33 of the Indian Evidence Act 1872. While making further submissions in elaboration the learned Counsel had explained the relationship between the parties and how the affected parties are non-parties to Ex.A-1 and how they are not bound by the same and also commented about the role played by PW-3 who is no doubt no more. The Counsel also had taken this Court through the pleadings of the parties and the evidence available on record. Further, the Counsel would contend that absolutely there is no cause of action and Ex.A-1 which came into existence even prior to disposal of L.P.A.No.338/88 could not form the basis for a separate cause of action so as to maintain this action.