MADDIRALA JAGANNADHAM Vs. MADDIRALA VENKATA SUBBA RAO

JUDGEMENT

(1.) This appeal arises out of a suit by a reversioner to recover certain properties of a deceased person named Punnayya. Defendants 1 and 2 claim to be nearer heirs than the plaintiff. The plaintiff is the son of one Pakeerayya. His present suit is based on the ground that his father who survived the deceased was a nearer heir than the defendants and after the property vested in Pakeerayya he succeeded to his right. The learned Subordinate Judge found in favour of the plaintiff and gave a decree. The defendants appeal.

(2.) The first question argued in appeal is the question of res judicata. Immediately after the death of Punnayya there was a suit by the present defendants to recover the property in which the defendant was the present plaintiff. But the father of the present plaintiff was not a party to the suit. In that suit the defendant, that is, the present plaintiff pleaded his own title and did not rely upon any title of Pakeerayya because he could not, as Pakeerayya was then living. He merely put forward the title of Pakeerayya as jus tertii. As the plea was found against him, the plaintiffs in that case were given a decree. On appeal an attempt to file some documents and prove the title of Pakeerayya was disallowed. So far as the former litigation is concerned, all we have is that the defendant in the case raised a plea of jus tertii. It cannot be said for the purpose of Section 11 that the decision on a plea of jus tertii is a decision between the parties litigating under the same title when the jus tertii is put forward and actually relied on in a later case by the third person. All that can be said is that, in the former suit, it was raised as a defence. It cannot be said that the defendant was actually relying upon that title or litigating under it. Now the present plaintiff who claims as the heir of Pakeerayya litigates under it. Mr. Somayya who appears for the appellants concedes that the judgment in the former suit does not bind Pakeerayya himself, or his assignees, or his heirs. It is merely an accident in the case that the heir of Pakeerayya happens to be the very person who put forward the plea of Jus tertii. That is only an accidental circumstance. It might happen to be a different person. It is therefore clear that there is no res judicata by reason of the judgment in the former litigation.

(3.) The second point argued is the question on the merits, namely, as to who is the nearer heir.