T.Subramanyam, Vs E.Eswaraiah

This second appeal under Section 100 of the Code of Civil Procedure is filed aggrieved against the judgment and decree, dated 27.04.2012, in A.S.No.38 of 2009, on the file of the Principal District Judge, Kurnool, reversing the judgment and decree, dated 25.02.2009, in O.S.No.1467 of 2004, on the file of the Principal Junior Civil Judge, Kurnool.

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The plaintiffs initiated action in O.S.No.1467 of 2004, on the file of the Principal Junior Civil Judge, Kurnool District, with a prayer for declaration of title of the plaint schedule property to the plaintiffs and to order for delivery of possession of the same for mesne profits and for costs of the suit.

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The learned Principal Junior Civil Judge, Kurnool, dismissed the suit with costs and allowed the counter claim of the defendant No.2. Felt aggrieved of the same, the unsuccessful plaintiffs in the above said suit filed the aforesaid appeal before the First Appellate Court. The learned Principal District Judge, Kurnool, allowed the appeal by setting aside the judgment and decree passed by the learned trial Judge. Aggrieved thereby, the defendants in O.S.NO.1467 of 2004 approached this Court by way of second appeal.

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The appellants herein are the defendants, the respondents herein is the plaintiffs in O.S.No.1467 of 2004. During the pendency of the second appeal, the

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respondent No.3 herein died and the respondent Nos.4 to 7 were brought on record as the legal representatives of the deceased respondent No.3. Thereafter, during the pendency of the second appeal, the respondent No.2 herein also died and the respondent Nos.8 to 12 were brought on record as the legal representatives of the deceased respondent No.2.

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For the sake of convenience, both parties in the second appeal will be referred to as they are arrayed in the suit O.S.No.1467 of 2004.

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The case of the plaintiffs, in brief, as set out in the plaint averments in O.S.No.1467 of 2004, is as follows:

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I. The plaintiffs are the owners of the plaint schedule property and the said property was the self-acquired property of one Choudappa, the grandfather of the plaintiffs. The plaintiffs pleded that the said Choudappa had two sons, namely, (1) Venkaiah and (2) Nagalakshmaiah. Choudappa executed a Will, dated 10.08.1960, bequeathing the vested remainder interest in the said properties in favour of Venkaiah, the father of the plaintiffs, to take effect after the life estate granted in favour of E.Seshaiah, the son of his elder brother Nagappa, and his wife Yellamma. The plaintiffs further pleaded that while so, when the said E.Seshaiah and his wife Yellamma attempted to alienate the plaint schedule properties, the plaintiffs filed O.S.No.274 of 1981 on the file of the Principal District Munsif Court, Kurnool, seeking a declaration that the defendants therein had only limited rights over the plaint schedule properties and for consequential permanent injunction restraining them from alienating

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the same and the said suit was decreed. Aggrieved by the said judgment and decree, the defendants therein preferred A.S.No.66 of 1988 before the Court of the I Additional District Judge, Kurnool. During the pendency of the said appeal, E.Seshaiah and his wife Yellamma died. Consequent upon their death, the vested future interest of the plaintiffs became a present and enforceable right. The plaintiffs further pleaded that thereafter, the defendants herein got themselves impleaded as parties to the said appeal and consequently, the said appeal was dismissed with costs, confirming the judgment and decree passed by the trial Court.

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II. The plaintiffs further pleaded that thereafter, the defendants, who are illegally squatting over the plaint schedule property without any manner of right, preferred S.A.No.321 of 1992 before the Composite High Court of Andhra Pradesh at Hyderabad, and the same was also dismissed. The plaintiffs further pleaded that, subsequently, the plaintiffs filed an Execution Petition seeking delivery of possession of the plaint schedule property from the defendants. However, the said Execution Petition was dismissed on 07.07.1997 on the ground that there was no specific relief of delivery of possession granted in O.S.No.274 of 1981 on the file of the Principal District Munsif Court, Kurnool, and in A.S.No.66 of 1988 on the file of the I Additional District Judge, Kurnool. Hence, the plaintiffs were constrained to file the present suit seeking declaration of title and also for delivery of possession of the plaint schedule property.

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The defendant No.1 remained ex-parte before the trial Court and the defendant No.2 filed a written statement and the case of the defendants No.2 as per the written statement filed by the defendant No.2 is as follows:

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I. The defendant No.2 pleaded that one Seshaiah, S/o E.Nagappa, executed a registered Will, dated 30.07.1980, in their favour and in the said Will, the executant, namely, Seshaiah, stated that all his movable and immovable properties, which were allegedly acquired by him through his ancestors and under a family partition effected in the year 1952, were bequeathed in favour of the defendants. The defendant No.2 further pleaded that after the death of the said Seshaiah in the year 1985, the Will came into effect and the defendants herein succeeded to the properties covered there under and have been in possession and enjoyment of the same ever since. The defendant No.2 further pleaded that, after the death of Seshaiah, the Will was duly acted upon and mutations were effected in the revenue records in their favour and consequently, they acquired right, title, and possession over the properties bequeathed under the said Will, and their names were entered in the revenue records. The defendant No.2 further pleaded that subsequently there was a partition among themselves, pursuant to which the plaint schedule properties fell to the share of the defendant No.2, and since then, the defendants have been in separate possession and enjoyment of their respective shares.

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II. The defendant No.2 further pleaded that they have sought permission to file a counter-claim seeking declaration of title and consequential permanent injunction restraining the plaintiffs from interfering with their peaceful

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possession and enjoyment of the plaint schedule properties, which, according to them, were acquired under the registered Will dated 30.07.1980. The defendant No.2 further pleaded that they were not parties to the suit in O.S.No.274 of 1981 on the file of the Principal District Munsif Court, Kurnool and the said suit was instituted by the plaintiffs against K.Seshaiah and K.Yellamma, seeking for a declaration that the said Seshaiah and Yellamma had only limited rights over the plaint schedule properties and for consequential permanent injunction restraining them, their men, agents, or anybody claiming through them from alienating the plaint schedule properties and the said suit was decreed holding that K.Seshaiah and K.Yellamma had only limited rights over the plaint schedule properties. The defendant No.2 further pleaded that against the said judgment and decree, an appeal suit in A.S.No.66 of 1988 was preferred and during the pendency of the appeal, the defendants herein were brought on record as appellants in the place of the deceased Seshaiah and Yellamma. The defendant No.2 further pleaded that no opportunity was afforded to them to file an independent written statement or to adduce evidence on their behalf and the appeal was disposed of solely on the basis of the pleadings and evidence of Seshaiah and Yellamma. The appellate Court had also drawn an adverse inference against the defendants on the ground that Seshaiah and Yellamma were not examined as witnesses in the suit.

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III. The defendant No.2 further pleaded that they have been in possession and enjoyment of the plaint schedule properties from the date of death of Seshaiah

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and that the plaintiffs never questioned either their possession or their alleged rights over the properties. The defendant No.2 further pleaded that the findings rendered in O.S.No.274 of 1981, A.S.No.66 of 1988, and S.A.No.321 of 1992 are not binding on them in the present proceedings. Therefore, he prayed for dismissal of the suit with costs.

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On the basis of above pleadings, the learned trial Judge framed the following issues for trial:

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1. Whether the plaintiff is entitled for a declaration that he is the absolute owner of the plaint schedule property?

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1. Whether the plaintiff is entitled for delivery of suit property?

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1. Whether the plaintiff is entitled to mesne profits? and

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1. To what relief?

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On 11.03.2008, the trial Court framed the following additional issues:

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1. Whether the second defendant is entitled for declaration as prayed for?

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1. Whether the second defendant is entitled for relief of declaration of title by way of adverse possession over the plaint schedule properties?

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On 03.04.2008, the trial Court allowed I.A.No.442 of 2008 and the issues which were framed earlier were re-casted as the earlier issues that are framed on 24.06.2005 refers plaintiff only in singular form, but not in plural form. The recasted issues are as follows:

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1. Whether plaintiffs are entitled for a declaration as they are absolute owners of the plaint schedule property?

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1. Whether the plaintiffs are entitled for delivery of suit property?

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1. Whether the plaintiffs are entitled to mesne profits? and

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1. To what relief?

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During the course of trial in the trial Court, on behalf of the plaintiffs, P.W.1 was examined and Exs.A-1 to A-5 were marked. On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-9 were marked. Exs.X-1 was also marked.

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The learned trial Judge after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, dismissed the suit with costs and allowed the counter claim of the defendant No.2. Felt aggrieved thereby, the unsuccessful plaintiffs filed the appeal suit in A.S.No.38 of 2009, before the Principal District Judge, Kurnool, wherein the following points came up for consideration:

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1. Whether the contentions raised by the defendants in this suit are hit by the principle of res-judicata?

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1. Whether the second defendant perfected his title to the plaint schedule properties alternatively by adverse possession and whether the plaintiffs’ suit is barred by limitation?

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1. Whether the plaintiffs are entitled to the reliefs of declaration and possession over the plaint schedule properties against the defendants and per contra,

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whether the second defendant is entitled to declaration and injunction against the plaintiffs? and

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1. To what relief?

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The learned first appellate Judge after hearing the arguments, answered the points, as above, against the defendants and allowed the appeal by setting aside the judgment and decree passed by the learned trial Judge. Felt aggrieved of the same, the unsuccessful defendants in O.S.No.1467 of 2004 filed the present second appeal before this Court.

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On hearing both sides’ counsel at the time of admission of the second appeal on 13.08.2012, the Composite High Court of Andhra Pradesh at Hyderabad, admitted the second appeal and framed the following substantial questions of law:

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1. Whether the appellate Court has erred in considering the rights of the respondents when the suit O.S.No.1467 of 2004 filed by them was dismissed and the counter claim by the appellants was allowed, which was not separately challenged?

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1. Whether the declaration of the titled granted by the lower Court is overlooking the provisions of Order 2 Rule 2 of C.P.C?

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1. Whether the lower appellate Court has not properly and legally appreciated the claims by the parties?

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Heard Sri Vedula Srinivas, learned Senior Counsel appearing for the appellants/defendants and Sri P.Veera Reddy, learned Senior Counsel representing Sri Karri Murali Krishna, learned counsel for the respondents/plaintiffs.

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The law is well settled that under Section 100 of CPC, High Court cannot interfere with findings of fact arrived at by first appellate Court, which is final Court of facts, except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence.

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In the case of Bhagwan Sharma v. Bani Ghosh¹ , the Apex Court held as follows:

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“The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the First Appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature.”

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In the case of Kondira Dagadu Kadam v. Savitribai Sopan Gujar² , the Apex

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Court held as follows:

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“The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.”

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The learned senior counsel appearing for the appellants would contend that the single appeal in A.S.No.38 by 2009 against the dismissal of O.S.No.1467 of 2004 and decreeing of counter claim therein is not maintainable. As seen from the decree and judgment in A.S.No.38 by 2009 passed by the First Appellate Court, the suit filed by the plaintiffs is dismissed by the trial Court and the counter claim filed by the defendants was decreed. Having defeated in both the suit and the counter claim, the plaintiffs filed first appeal against both the suit and counter claim. The decree of

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1 AIR 1993 SC 398

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2 AIR 1999 SC 471

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the First Appellate Court itself reveals that the plaintiffs paid separate Court fees for the relief of suit claim and counter claim.

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The learned Senior Counsel for the appellants placed a case law in Ramesh Chand and Ors. Vs. Om Raj and Ors.³ , wherein the High Court of Himachal Pradesh held as follows:

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“ 42.

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(i) …

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(ii) …

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(iii) …

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(iv) When both the suit and the counter claim are decreed by a common judgment, regardless of whether separate decree has been prepared in the counter claim, both would be required to be challenged by separate appeals;

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(v) In a case where two separate appeals are required to be filed against judgment of the suit and the counter claim and if appeal is filed only against one and not against the other, non filing of appeal against such judgment and decree would attach finality thereto and would attract not only the principle of resjudicata but also waiver and estoppal and the judgment and decree not appealed against would be taken to have been acquiesced to by the party not filing appeal.”

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In the aforesaid case law, both the suit and counter claims are decreed by way of a common judgment. But in the present case, the suit filed by the plaintiffs is dismissed and counter claim filed by the defendant No.2 is decreed by the trial Court by way of a common judgment and common evidence is recorded in both the suit and counter claim. Having defeated in both the suit and counter claim, the plaintiffs filed the first appeal against the decree and common judgment passed in suit and

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3 MANU/HP/1047/2022

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counter claim by paying separate Court fees for suit claim and for relief of counter claim.

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The learned Senior Counsel for the appellants placed a case law in Ghanshyam Singh and Ors. Vs. Narendra Singh⁴ , wherein the High Court of Uttarakhand held as follows:

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“ 29 . The Hon'ble Apex Court, in Rajni Rani (supra), while dealing with the implications of Order 8 Rule 6A, in relation to the counterclaim preferred by the defendant in a suit, it has observed that it will take shape of a cross-suit and even if the suit is dismissed, once the law provides that the counterclaim would still prevail to survive to be adjudicated on its own merit, unaffected by the dismissal of the suit, in that eventuality, the counterclaim, as well as the plaint, would have an independent procedural and adjudicatory status resulting into an independent formulation of a decree, in that eventuality, two different appeals are required to be preferred.”

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In the case of Narahari and Others Vs. Shanker and Others⁵ , wherein a Full

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Bench of the Hon’ble Apex Court held as follows:

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“ The question of 'res judicata' arose only when there were two suits. As there was one suit and both the decrees were in the same case and based on the same judgment and the matter decided concerned the entire suit the principle of 'res judicata' did not apply."

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19. In Hansi Town Improvement Trust Vs. Sham Sunder⁶ , by referring to

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various case laws of the Apex Court, Punjab and Haryana High Court held as

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follows :

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"Though a counter-claim by a legal fiction is treated as a separate suit, however, under Order 8 R 6A, the counterclaim is maintainable against the claim of the plaintiff which accrues to the defendant against the plaintiff. The counterclaim has to be

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4 MANU/HP/0420/2022

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5 AIR 1953 SC 419

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6 AIR Online 2024 P & H 759

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intricately interwoven with the claim of the plaintiff. Hence, though by legal fiction, it is a cross suit, however, in substance, it is a part of the same suit filed by the plaintiff. Order 8 Rule 6A enables the Court to pronounce a final judgment in the same suit both on the original claim and on the counterclaim. Hence, the judgment as well as decree envisaged are composite judgment and decree and not separate judgments and decrees. Hence, for the purpose of filing an appeal, the counterclaim is required to be treated as a part of the entire claim which has been decided by a composite

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judgment and decree. Order 8 Rule 6A (2) enables the Court to pronounce a final judgment in the same suit both on the original claim and on the counterclaim. Hence, the judgment as well as decree envisaged are composite judgment and decree and not separate judgments and decrees. Hence, for the purpose of filing an appeal, the counterclaim is required to be treated as a part of the entire claim which has been decided by a composite judgment and decree. Thus, when the composite decree is passed while deciding both suit and counterclaim, there is no use of filing two separate appeals. A single memorandum of appeal filed for challenging the correctness of composite judgment and decree would be maintainable."

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In Shri Shankar Masu Dokare Vs. Shobha Subhash Dokare and another⁷ , the High Court of Judicature at Bombay held as under:

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"Now coming to the judgment of the Apex Court in Narahari and others case (supra), the Apex Court in paragraph 5 has observed that it is now well settled that where there has been one trial, one finding and one decision, there need not be two appeals even though two decrees may have been drawn up. The observation of the Apex Court in Narahari's case therefore applies in all fours to the facts of the instant case wherein there was one trial, one finding and one decision as regards the property and therefore the appellants were not required to file separate appeals. Insofar as the judgment of a learned Single Judge of the Kerala High Court in Pampara Philip's case is concerned, though the said judgment is not directly on the point as to whether one appeal is maintainable, the appellant can draw support from the said judgment in the light of the fact that the learned Single Judge of the Kerala High Court has held that if the claim in the counterclaim is dismissed and the suit claim is allowed, then there is no warrant to file two appeals but what is required to be done is that the valuation has to be composite i.e. the valuation of the suit and counterclaim, and Court fees have to be paid accordingly. In my view, the judgment

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7 2015 (4) ALL MR 53

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lends support to the case of the appellants inasmuch as in the instant case also the suit claim has been allowed and the counterclaims have been dismissed."

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In the case at hand, the plaintiffs’ suit claim is dismissed and a counter claim

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of defendant No.2 is decreed by the trial Court. As seen from the judgment of the trial Court, the trial Court recorded common evidence in suit and counter claim and one judgment is pronounced in both the suit and counter claim. Then there is no warrant to file two appeals by the plaintiffs before the first appellate court, but what is required to be done is that valuation has to be composite i.e. valuation of the suit and the counter claim; and the court fees has to be paid accordingly. As seen from the appeal grounds in the first appeal, it contains common grounds of challenge for both the decree in the suit as well as counter claim and separate court fees is also paid on the suit claim and counter claim in the first appeal. Hence, single appeal is maintainable before the First Appellate Court, the First Appellate Court by giving reasons allowed the first appeal in decreeing the suit filed by the plaintiffs and dismissing the counter claim filed by the defendant No.2. Therefore there is no substance in the contention of the appellants that two appeals have to be filed before the First Appellate Court by the plaintiffs for challenging the suit claim and counter claim in the suit.

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The appellants herein have not taken any objection for filing a single appeal by the plaintiffs against the dismissal of suit and decree of counter claim before the First Appellate Court. For the first time, the said objection was taken during the

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pendency of the second appeal. In a case of K.Kandaswamy Vs. P.Natarajan and Others⁸ , the High Court of Madras held as follows:

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" 25. Once a comprehensive appeal under Sectioin 96 CPC has been entertained and decided, any procedural objection as to whether two separate appeals outght to have been filed instead of a single appeal becomes academic and inconsequential, and cannot be permitted to be re-opened ina Second Appeal under Section 100 CPC, particularly in the absence of any demonstrated prejudice or failure of justice."

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The material on record reveals that in a suit filed by the plaintiffs, a counter claim is filed by the defendant No.2. Both the suit and counter claim were tried by recording common evidence and a common judgment is pronounced in both the suit and counter claim. It is well defined legal principle that the rules of procedure are the hand made of justice. Hence, they shall not be narrowly construed. The procedural laws are designed to facilitate justice and interpreting them purely in a technical manner leaves no room for reasonable interpretation.

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For the aforesaid reasons, this Court is of the considered view that there is no subsistence in the contention of the appellants that two separate appeals have to be filed by the plaintiffs before the First Appellate Court against the dismissal of the suit and decree of counter claim passed by the trial Court.

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The learned Senior Counsel for the appellants contends that the respondents herein are barred from filing the present suit in O.S.No.1467 of 2004, seeking for declaration of title, since they have abandoned that relief while filing the earlier suit in O.S.No.274 of 1981, though Seshaiah has claimed his title over the very same property and disputed the title of respondents herein.

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8 2026 SCC OnLine Mad 14

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The learned Senior Counsel for appellants placed a case law in Virgo Industries (Eng.) Private Limited Vs. Venturetech Solutions Private Limited⁹ , the Hon’ble Apex Court held as follows:

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" 8. The necessary discussions that will have to follow may be initiated by extracting the provisions of Order 2 Rule 2 of the CPC:

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“ 2.Suit to include the whole claim - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

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(2) Relinquishment of part of claim -Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.

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(3) Omission to sue for one of several reliefs -A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

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Explanation -For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”

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9. Order 2 Rule 1 requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order 2 Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, Order 2 Rule 2 of CPC makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. It must be noticed that Order II Rule 2 (2) does not contemplate omission or relinquishment of any portion of the plaintiff‟s claim with the leave of the court so as to entitle him to come back later to seek what has been omitted or relinquished. Such leave of the Court is contemplated by Order II Rule 2(3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such

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9 (2013) 1 Supreme Court Cases 625

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reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the Court had been obtained. It is, therefore, clear from a conjoint reading of the provisions of Order 2 Rule 2 (2) and (3) of the CPC that the aforesaid two sub-rules of Order 2 Rule 2 contemplate two different situations, namely, where a plaintiff omits or relinquishes a Part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particular relief he had obtained leave of the Court in the first suit.."

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The learned Senior Counsel for appellants placed a case law in State Bank of India Vs. Gracure Pharmaceuticals Limited¹⁰ , the Hon’ble Apex Court held as follows:

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" 12. Order 2 Rule 2, CPC, therefore, requires the unity of all claims based on the same cause of action in one suit, it does not contemplate unity of distinct and separate cause of action. On the abovementioned legal principle, let us examine whether the High Court has correctly applied the legal principle in the instant case.”

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The learned Senior Counsel for appellants placed a case law in Vurimi Pullarao, S/o Satyanarayana Vs. Vemari Vyankata Radharani Dhankoteshwarrao¹¹ , the Hon’ble Apex Court held as follows:

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" 12. The rationale underlying in Order 2 Rule 2 has been dealt with in several judgments including in the decision of the Privy Council in Mohd. Khalil Khan v Mahbub Ali Mian, the Privy Council held:

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“(1) The correct test in cases falling under Order 2 Rule 2, is „whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit.”

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10 (2014) 3 Supreme Court Cases 595

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11 AIR 2020 SUPREME COURT 395

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(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment.

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(3) If the evidence to support the two claims is different, then the causes of action are also different.

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(4) The causes of action in the two suits may be considered to be the same if in substance they are identical.

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(5) The cause of action has no relation whatever to the defence that maybe set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour.”

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In order to attract the applicability of the bar enunciated under Order 2 Rule 2, the cause of action on which the subsequent claim is founded ought to have arisen to the plaintiff when enforcement of the first claim was sought before the Court.

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In Virgo Industries (Eng.) Private Limited (supra), the provisions of Order 2 Rule 2 came up for consideration before a two judge Bench of this Court. The Court observed:

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“10. The object behind the enactment of Order 2 Rules 2(2) and (3) CPC is not far to seek. The Rule engrafts a laudable principle that discourages/prohibits vexing the defendant again and again by multiple suits except in a situation where one of the several reliefs, though available to a plaintiff, may not have been claimed for a good reason. A later suit for such relief is contemplated only with the leave of the court which leave, naturally, will be granted upon due satisfaction and for good and sufficient reasons.” These principles have been reiterated in the more recent decision in Pramod Kumar (supra) .”

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In the present case, the earlier suit in O.S.No.274 of 1981 is filed by the plaintiffs herein for seeking relief of declaration that the defendants therein have got only limited right in the plaint schedule property and another relief sought by the

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plaintiffs is to grant permanent injunction, restraining the defendants and their men from alienating the plaint schedule property in favour of 3^rd parties. The contention of the plaintiffs in the aforesaid suit is that though the defendants therein are having limited right of enjoyment, they are trying to alienate the plaint schedule property to the third parties. The trial Court decreed the said suit in O.S.No.274 by 1981. The defendants therein filed a first appeal and during the pendency of the said first appeal, one of the appellant died. The defendants herein, who the legal representatives of the deceased appellant were brought on record as parties to the said first appeal and after hearing both sides, the said first appeal was dismissed by the First Appellate Court against which a second appeal has been preferred by the defendants therein before this Court and the said second appeal vide S.A.No.324 of 1991 was dismissed by this Court on contest by both the parties therein. By the date of filing of the suit in O.S.No.274 by 1981, the plaintiffs herein are having vested remainder rights in the plaint schedule property and they are not having enjoyment of possession in the plaint schedule property. Therefore, there is no subsistence in the contention of the appellants that the respondents herein have abandoned the claim of title of declaration in the year 1980 and they cannot claim the same in the present suit in the year 2004.

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The learned Senior Counsel appearing on behalf of the appellants would contend that the present suit in O.S.No.1467 by 2004 is barred by law of limitation, since the relief of recovery of possession of property has to be claimed under Article 64 of Limitation Act within a period of twelve (12) years from the date of possession of the defendants become adverse to the plaintiffs. He would further contend that

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the appellants herein are in possession of the suit property since 1990 and the present suit is filed in the year 2004, and that the present suit is barred by law of limitation.

¶158

The contention of the appellants is that the plaint schedule properties belongs to Seshaiah, as he got them under a partition in the year 1952 and he executed a registered will dated 30.07.1980 in favour of the defendants and after the death of Sesaiah, the said will was acted upon and the defendant came into possession of the suit schedule property. The specific case of the plaintiffs is that the suit schedule property originally belongs to one Chodappa and the said Chodappa created a life interest in the scheduled property in favour of the Sesahaiah and vested interest to the plaintiffs’ father Venkayya. The suit schedule property in the present suit in O.S.No.1467 of 2004 and the suit schedule property in the earlier suit in O.S.No.274 by 1981 are one and the same. The Plaintiffs herein filed the said suit O.S.No.274 by 1981 with a specific prayer for seeking relief of declaration that defendant Nos.1 & 2 therein i.e. Seshaiah and his wife have got only limited interest in the plaint schedule property and another relief sought by the plaintiff in the said suit is to restrain the defendants and their men by granting permanent injunction from alienating the plaint schedule property. The said suit in O.S.No.274 by 1981 was decreed on contest by both the parties, against which first appeal has been preferred by the defendants in O.S.No.274 by 1981 and the defendant No.2 in the said suit died pending first appeal and the defendant Nos.1 and. 2 in the present suit are added as appellant No.3 and 4 in the first appeal vide A.S.No.56 of 1988, the said appeal was dismissed on contest by both the parties, against which a second

¶159

VGKR, J. SA_631_2012

¶160

appeal is preferred by the defendant vide S.A.No.321 of 1992. The said S.A.No.321 of 1992 was dismissed on contest by both the parties on 24.06.2008. The present suit is filed in the year 2004, before the trial Court.

¶161

The appellants would contend that they got the suit property under Ex.B-1 Will executed by Seshaiah. The defendants in the suit are parties in earlier appeal suit vide A.S.No.56 of 1988 itself. Admittedly, the present defendants have no right over the property even through the Ex.B-1 Will, as it is evident that all the Courts viz. the trial court, the First Appellate Court and the Second Appellate Court concurrently held in the earlier suit proceedings that the Seshaiah and his wife only had only a limited interest of enjoyment over the property and they have no power to transfer the property. In the earlier suit proceedings, the appellants claimed that the suit property is through Seshaiah only and they never set up an independent title and possession over the property. The defendants herein are claiming right and title through the said Seshaiah only. As noticed supra the said Seshaiah was having limited right of enjoyment only and he is not having any power of alienation in respect of the suit schedule property. The suit schedule property in the present suit and the suit schedule property in O.S.No.274 of 1981 are one and the same. The plaintiffs herein succeeded in the earlier suit proceedings from the trial Court to the Second Appellate Court and the second appeal was dismissed on contest by both the parties on 24.06.2008, during the pendency of the present suit. The trial Court to the Second Appellate Court had concurrently held in the earlier suit proceedings that the said Seshaiah and his wife had only limited right of enjoyment and they are not having any power of alienation. Therefore, no title is transferred under Ex.B-1 to the

¶162

VGKR, J. SA_631_2012

¶163

appellant and the findings in the previous proceedings will act as a res-judicata against the defendants in the present suit as their claim over the suit schedule property is only through Seshaiah, but not from any other independent source.

¶164

In a case of Amruddin Ansari (Dead) through Learned Counsel for the respondent submits that and Others Vs. Afjal Ali and Others¹² , the Hon’ble Apex Court held as follows:

¶165

" 23. The principle of res judicata is based on the common law maxim “nemo debet bis vexari pro una et eadem causa”, which means that no man shall be vexed twice over the same cause of action. It is a doctrine applied to give finality to a lis. According to this doctrine, an issue or a point once decided and attends finality, should not be allowed to be reopened and re-agitated in a subsequent suit. In other words, if an issue involved in a suit is finally adjudicated by a Court of competent jurisdiction, the same issue in a subsequent suit cannot be allowed to be re-agitated. It is, therefore, clear that for the application of principle of res judicata, there must be an adjudication of an issue in a suit by a court of competent jurisdiction.

¶166

In the present case the issue of title of Seshaiah in earlier proceedings was finally adjudicated from the trial Court to the Second Appellate Court on merits. The appellants herein, who are the party to the appeal proceedings having accepted the said finding, now they cannot contend that by virtue of Ex.B-1 Will executed by the Seshaiah, they are having title in the suit schedule property. As stated supra, the Seshaiah and his wife had got only limited right of enjoyment and they are not having any power of alienation in the plaint schedule property.

¶167

The law is well settled that “ a limited rights holder cannot transfer his limited rights to others under a Will or any other document .” Therefore, the alleged legatee

¶168

12 AIR 2020 SUPREME COURT 395

¶169

VGKR, J. SA_631_2012

¶170

of Will said to have been executed by Seshaiah will not get any better title than Seshaiah. The alternative plea of adverse possession taken by the appellants against the plaintiffs is not set up by the appellants in the earlier suit proceedings. The rights of the parties in earlier suit were finally decided on contest by both the parties from the trial court to the Second Appellate Court. Finally, it was decided in second appeal in S.A.No.321 of 1992 vide its judgment dated 26.06.2008, during the pendency of the present suit proceedings. Therefore, the said possession and enjoyment of the defendants cannot confer any adverse title to them since, they are claiming title through Seshaiah and the alleged absolute right of Seshaiah was negatived by the trial Court to the Second Appellate Court in earlier suit proceedings. Therefore, the present suit cannot be said to be barred by the law of limitation.

¶171

On appreciation of the entire evidence on record, the learned First Appellate Judge had arrived to a conclusion that the plaintiffs are having right and title in the plaint schedule property and the relief of possession was also granted by the First Appellate Court. On proper appreciation of the entire evidence on record on all issues decided by the trial Court and after framing the points for determination as required under Section 96 of C.P.C., the learned First Appellate Judge rightly allowed the first appeal and dismissed the counter claim. In the light of the material on record and upon earnest consideration now, it is manifest that the substantial question of law raised in the course of hearing in the second appeal on behalf of the appellants did not arise or remain for consideration. This Court is satisfied that the second appeal did not involve any substantial question of law for the determination.

¶172

VGKR, J. SA_631_2012

¶173

In the result, the second appeal is dismissed by confirming the judgment and decree passed by the First Appellate Court and the appellants are directed to deliver the vacant portion of the plaint schedule property to the respondents/plaintiffs within a period of three (03) months from the date of this judgment. Considering the facts and circumstances of the case, each party do bear their own costs in the second appeal.

¶174

As a sequel, miscellaneous petitions, if any, pending in the appeal shall stand closed.

¶175

__________________________ V. GOPALA KRISHNA RAO, J.

¶176

Date: 15.06.2026

¶177

SRT

T.Subramanyam, v. E.Eswaraiah

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T.Subramanyam, v. E.Eswaraiah

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