KALASIPUDI SUBBA RAO (DECEASED) Vs. PALAKURTHI BHIMALINGAM (DECEASED)

JUDGEMENT

(1.) Plaintiff is the appellant. The plaintiffs suit was for the redemption of the mortgage over the lands in A and B schedules of the plaint and for possession of the same. A schedule lands are Mazumdari service inam and the B schedule lands are quit-rent inam. These lands were originally held by the members of Kasiraja family. In 1885 the holders executed a usufructuary mortgage over both the A schedule and B schedule lands in favour of the predecessor-in-title of defendants 1 to 5 for Rs. 6,000. In 1886 a simple mortgage of these lands was executed in favour of one Putta Audenna for Rs. 1,500. In the same year a third mortgage which was also a simple mortgage was executed in favour of two persons, K. Latchayya and M. Venkata Rao, Latchayya having a 2/3 share in the mortgage and Venkata Rao a one-third share. This mortgage was for Rs. 1,200. The second mortgagee transferred his mortgage to the first mortgagee. In execution of the decree in O.S. No. 27 of 1887 the plaintiff's father who had obtained a money decree against the mortgagors purchased the equity of redemption over these lands and obtained symbolical delivery on the 14 October, 1892. In 189.3 defendants 1 to 5 brought O.S. No. 34 of 1893 on the second mortgage and obtained a decree. This decree amount was paid off by the plaintiff's father. On the 17 of July, 1894, the plaintiff got an assignment of the 2/3 share of the third mortgage owned by K. Latchayya. In O.S. No. 303 of 1896 Venkata Rao, the mortgagee of one-third share of the third mortgage, obtained a decree which was transferred to the 6 defendant who got the lands sold at Court auction and purchased them. The plaintiff's father was a party to the suit. It may here be observed that the sale and purchase of the A schedule lands was invalid as the lands are Mazumdari service inam and hence inalienable; but the sale of the B schedule lands was not open to this objection. However, the plaintiff being bound by the decree must be deemed to have lost his rights over both the properties; but in 1902 he was given a patta for the A schedule lands by the Government. In Venkata Jagannadha V/s. Veerabhadrayya (1921) L.R. 48 I.A. 244 : I.L.R. 44 Mad. M.L.J. 1 (P.C.) it was held that the grant of patta constitutes a fresh grant. The plaintiff must therefore be deemed in consequence of the grant to have obtained an absolute title to the property for which he was given a patta. On the strength of the title thus obtained the plaintiff instituted O.S. No. 280 of 1903 for possession of the A schedule properties against the present defendants 1 to 5 and the 6th defendant who was the 19 defendant in that suit. The first issue in the suit was whether the patta granted to the plaintiff had the effect of cancelling the sale of the lands in favour of the 19 defendant. On this issue the District Munsif found against the plaintiff and dismissed the suit (see Ex. IV). On appeal the District Judge confirmed the District Munsif's decision holding that to get possession the plaintiff must first pay off the mortgage of defendants 1 to 4 and that the grant of the patta in his favour did not affect the rights of the 19 defendant (i.e., the 6th defendant) in the suit lands (see Ex. V). As a result of this decision the plaintiff instituted the suit out of which this appeal arises for redemption and for possession of the suit lands. The suit is admittedly confined to the lands for which the plaintiff has obtained a patta from the Government as already mentioned in 1902.

(2.) Besides raising the contentions relating to the merits of the case, the contesting defendants raised, at the very outset, various legal objections to the suit, as preliminary points for decision. These points were that the plaintiff's rights in the lands have been extinguished in consequence of some of the previous proceedings, that his rights, if any, were barred by limitation, that the suit was barred under Order II, Rule 2 of the Civil P. C. and that it was also barred by res judicata by reason of the decision in O.S. No. 280 of 1903. On these preliminary points, the learned Subordinate Judge upheld the contentions of the defendants and in consequence the plaintiff's suit was dismissed without an enquiry into its merits.

(3.) In appeal Mr. Govindarajachari on behalf of the plaintiff-appellant contended before us that the decision on fall these points is wrong and that the case should be sent down for a decision on the merits. Mr. Somasundaram on behalf of the 6th defendant attempted to support before us the Lower Court's decision only on the point of res judicata. The only point, therefore, for us to decide is "Is the plaintiff's suit barred by res judicata by reason of the decision in O.S. No. 280 of 1903". It may here be mentioned that the plaintiff is willing to redeem defendants 1 to 5, but they support the 6 defendant's plea which, if successful, would entail dismissal of the plaintiff's suit.