KODEPAKA NARSAIAH Vs. DANDI NARSIMHA

JUDGEMENT

(1.) This second appeal is filed under Section 100 of the Civil Procedure Code being aggrieved by the judgment and decree dated 6-9-2002 made in A.S. No. 144 of 1996 on the file of the learned I Additional Chief Judge, City Civil Court, Secunderabad, wherein the judgment and decree dated 11-12-1995 dismissing the suit in O.S. No.399 of 1990 on the file of the learned XVII Assistant Judge, City Civil Court, Secunderabad were confirmed.

(2.) There is no necessity of going into all the details. The only substantial question of law that arises for consideration in this second appeal is whether the Courts below were right in holding that the findings arrived at in O.S.No.899 of 1970 (A.S.No.97 of 1972) on the file of the learned I Additional Judge, City Civil Court, Secunderabad as to adverse possession and title of the parties operate as res judicata in the present suit filed by the appellant ?

(3.) There is no dispute as to the fact that the parties in the present suit i.e., O.S. No.399 of 1990 and the suit in O.S. No.899 of 1970 are one and the same. However, defendants 2 and 3 herein are the sons of the 3rd defendant in the above suit, namely, Dandi Ellamma. The appellant herein earlier filed O.S. No.899 of 1970 for mandatory injunction to remove the hut erected in the suit schedule property. Originally, it was filed against defendants 1 and 2 therein i.e., Dandi Narasimha and Kuragayala Mallamma and thereafter, the 3rd defendant - Dandi Yellamma was impleaded. Defendant Nos.1 and 3 contested the suit by filing separate written statements. In her written statement, the 3rd defendant asserted that she has right and title over the suit schedule property and she is in possession of the same and even otherwise, she has perfected her title by adverse possession. An issue was framed in O.S. No.899 of 1970 with regard to perfecting title by adverse possession by the 3rd defendant therein. After full trial, the said issue was answered against the 3rd defendant and in favour of the appellant herein. Aggrieved by the said judgment and decree in O.S. No.899 of 1970, the 3rd defendant therein carried the matter in appeal being A.S.No.97 of 1972 on the file of the learned Additional Chief Judge, City Civil Court, Hyderabad and the appeal was allowed. The appellate Court held that the appellant herein (plaintiff in O.S. No.899 of 1970) failed to prove the case putforth by him in the plaint, the suit for mere mandatory injunction was not maintainable without asking for recovery of possession of the property, the plaintiff also failed to prove subsisting title to the suit property and the 3rd defendant perfected her title by adverse possession. Aggrieved by the said judgment and decree of the appellate Court, the plaintiff in O.S.No.899 of 1970 carried the matter in second appeal being S.A.No.577 of 1973 before this Court, but the same was dismissed on 16-9-1975 confirming the findings of the appellate Court that the suit against the 3rd defendant also should have been dismissed, the suit as against the 1st defendant was dismissed by the trial Court itself and in view of the findings and having regard to the plaint and the prayer therein, the suit should have been dismissed even as against defendants 2 and 3 in O.S.No.899 of 1970. The judgment in S.A.No.577 of 1973 attained finality.