(SIVAPURAM) KOTAYYA Vs. (SIVAPURAM) SUBBAYA

JUDGEMENT

(1.) The question raised in this appeal is one of res judicata. The facts necessary for the disposal of this may be shortly stated. The suit is in ejectment against the defendant and for recovery of possession of certain lands on the ground that the defendant is in occupation thereof as a tenant under a lease given by the plaintiffs. The defence is a denial of the lease as well as the title of the plaintiffs. Previous to the institution of this suit the plaintiffs filed a suit, O.S. No. 4 of 1925, on the file of the District Munsif's Court of Markapur for recovery of possession of the lands from the defendant alleging that they are the owners thereof, that they leased the land to the defendant, that the defendant was unlawfully setting up title thereto and prayed that the right of the plaintiffs in the suit land may be declared and possession be delivered to them free of any objection by the defendant. The defendant filed a written statement in that suit stating that he had a right to a half-share in the said property and that the plaintiffs had no right to possession or enjoyment of the entire land, that the plaintiffs never leased the land to him and so far as his half-share was concerned he was entitled to enjoy the same with absolute right. He also set up enjoyment by adverse possession. The following issues were raised in the case : (1) Whether the alleged lease is true ? (2) Whether the defendant has been in adverse possession of the suit land for over 12 years ? and (3) Whether the suit is bad for want of notice ?

(2.) The learned District Munsif who tried, the suit went fully into the question and held that the plaintiffs title as alleged in the plaint should be found in their favour that the lease is true and that the defendant had not made out a case of adverse enjoyment for over 12 years but as the plaintiffs had not given notice to quit, the suit for possession is bad without notice. Accordingly on the said findings he dismissed the suit. But he disallowed the costs of the defendant. The ground on which he did so was stated thus : The defendant having set up title and adverse possession failed to prove both. He will therefore bear his own costs.

(3.) Thus it will be seen that the order disallowing costs was based on the express finding by the District Munsif regarding, the title of the defendant which was negatived. Both parties preferred appeals to the District Court; the appeal of the plaintiffs was against the order of dismissal and the appeal of the defendant against the order disallowing costs and the memorandum of the grounds of his appeal would clearly show that the findings of the District Munsif in regard to title and adverse possession were attacked. Both the appeals were heard by the learned Subordinate Judge of Kurnool and the points for determination which he set to himself were as follows : (1) Whether the plaintiffs are entitled to the suit land ? (2) Whether the lease set up is true ? (3) Whether the suit is bad for want of notice to quit ? and (4) What is the right order to be made as regards costs ? The learned Judge found in favour of the plaintiffs both as regards title and adverse possession and he further found that the lease in favour of the plaintiffs is true. But he also concurred with the District Munsif in regard to want of notice to quit. In regard to point No. 4 as regards costs the judgment ran thus : The lower Court has disallowed the defendant's costs. I think that order is quite correct. All the pleas set up by the defendant have been held to be false. It is only on a technical point that the plaintiffs suit has failed. So the defendant is not entitled to claim his costs. In the result both the appeals are dismissed with costs.