VISSAVAJJULA MAHADEVA SASTRI Vs. POTHULA SRRERAMAMURTY

JUDGEMENT

(1.) This is an appeal against the decree and judgment of the Court of the Subordinate Judge, Eluru, confirming that of the District Munsif, Eluru, in O. s. No. 303 of 1947, a suit filed by the respondent for partition and separate possession of his 1/ share in the plasint schedule property.

(2.) Krishnamacharyulu and Ramanujacharyulu were brothers. They jointnly owned the plaint schedule property. Krishnamacharyulu sold the said property to the plaintiff on 12-7-1939 representing that he was the full owner thereof. Ramanujacharyulu, in his turn, sold the same property to the defendant on 5-8-1939 representing that he was the full owner thereof. The plaintiff filed O. s. No. 174 of 1944 on the file of the Court of the District Munsif, Eluri, for evicting the defendant, who was the 6th defendant in that suit.The District Munsif held that the property was the joint property of Krishnamacharyulu and Ramanujacharyulu and decreed the suit in respect of half the suit property. The defendant preferred an appeal to the District Court West Godavari, A. S. No. 413 of 1945. The suit was remanded for fresh disposal and sent to the District Munsifs Court, Narasapur. It was numbered as O. S. No. 282 of 1946.That Court also found that the suit property was the joint property of the two brothers and the plaintiff must be deemed to have purcahsed only the equity of enforcing partition as against the co-owner in possession. The plaintiff was advised to file a separate suit for partition. With that observation, the suit was dismissed. Wtih that observations, the suit was dismissed. Thereafter the plaintiff filed O. S. No. 303 of 1947 for partitioin and separate possession of his half share.The defendant, apart from raising the plea that the suit property was the absolute property of Ramanujacharyulu, pleaded that the plaintiffs earlier suit for the recovery of the entire property having been dismissed, he was barred by res judicata from filing the present suit for half of it. The learned District Munsil held that the decree in the previous suit constituted res judicata and the defendant could not in the present suit, reopen the question of title.In the result the suit was decreed as prayed for. Or appeal, the learned Subordinate Judge expressed the same view on the question of res judicata and dismissed the appeal. Hence this Second Appeal.

(3.) The only question in the Second Appeal is whether the Judgment in A. S. No. 282 of 1946 operates as res judicata against the defendant in the suit on the question of title. The learned Counsel for the appellant raised before me the following two points (i) the earlier suit, which was filed for the recovery of the entire property having been dismissed, the plasintiff cannot file the present suit for recovery of half of the properly, the subject-matter of the earlier suit, and (ii) though the defendant was given only half the costs of the suit on the basis of the finding that the plaintiff and defendant jointly owned the property in equal shares, the finding would not operate as res judicata.