YENNAMANI RAMANNA Vs. MASUNURI VENKATANARAYANA

JUDGEMENT

(1.) The plaintiff's suit is for a declaration that the decree passed in O.S. No. 2 of 1910 is not binding on him so far as the plaint property is concerned and for an injunction restraining the defendants from interfering with his possession and for incidental reliefs. The District Munsif passed a decree in plaintiff's favour. The Subordinate Judge on appeal held that the decree in O.S. No. 2 of 1910 was binding upon the plaintiff and dismissed his suit. The plaintiff has preferred this second appeal.

(2.) The suit property was originally karnam service inam. It was enfranchised in favour of the plaintiff's paternal uncle and the title deed, Ex.D, was issued on 16 October, 1905. Defendants 1 and 2 had mortgaged the suit property with other property to the father of defendants 6 and 7 on 26 July, 1897. Defendants 6 and 7 brought O.S. No. 2 of 1910 on the mortgage and obtained a decree. They now have brought the property to sale. To O.S. No. 2 of 1910 the plaintiff's uncle and the plaintiff, who was then a minor, were made defendants on the ground that they were in possession of the property as lessees. The plaintiff's uncle is dead and the plaintiff has brought the present suit for the reliefs above-mentioned. The learned Subordinate Judge has considered the question whether defendants 1 and 2 had title to the property and whether that title was in any way affected by the enfranchisement. His view is opposed to the decision of the Privy Council in Venkata Jagannadha V/s. Veerabhadrayya (1921) ILR 44 Mad 643 : 41 MLJ 1 (PC). It is well settled that the effect of enfranchisement of karnam service inam is doing away with the right or title to the property acquired before the date of enfranchisement. The effect of issuing an inam title deed after enfranchisement in favour of a person is tantamount to Government resuming the inam and regranting it to the person in whose favour the title-deed is issued. When the Government resumes a service inam all the interests of persons who have acquired title prior to the date of enfranchisement cease to have any effect, and the person in whose name the title deed is made out after enfranchisement gets it free of the interest which other persons had in the property before the date of enfranchisement. It is therefore unnecessary in this case to consider whether defendants 1 and 2 had any interest in the property and whether such interest was subsisting after the date of the enfranchisement. The only question that needs consideration in this case is, is the plaintiff's suit barred by res judicata by reason of the decision in O.S. No. 2 of 1910. In that suit there was no adjudication on the title of plaintiff and his paternal uncle. The paternal uncle remained ex pante and the guardian of the plaintiff did not adduce any evidence. They were made parties on the ground that they were in possession as lessees. The question of their title was not specifically raised. The Subordinate Judge held that it was necessary for the plaintiff and his uncle to have repudiated the character of lessees and to have asserted their own right and as they did not do so the present suit is barred by res judicata. The question is whether this case comes within Expn. IV of Section 11 of the Code of Civil Procedure. Is the title of the plaintiff or his uncle a matter which might and ought to have been made a ground of defence or attack in the former suit. If it was not a matter which might and ought to have been made a ground of defence or attack in the former suit, then the plaintiff's suit would not be barred.

(3.) The view of the Allahabad High Court is that in a mortgage suit the paramount title of a third party who claims adversely to the mortgagor and mortgagee cannot be adjudicated upon. In Gobardhan V/s. Munna Lal (1918) I L R 40 A 584, Banerjee and Abdul Raoof, JJ., observed at page 588: We must take it as settled law that in a suit brought by a mortgagee to enforce his mortgage a person claiming a title paramount to the mortgagor and the mortgagee is not a necessary party, and the question of the paramount title cannot be litigated in such a suit.