Chebrolu Latchayya vs Kucherlapati Venkatapatiraju and Others

Patanjali Sartri, J.—This second appeal arises out of a suit brought by the appellant for redemption of a mortgage and recovery of

possession of the mortgaged properties from respondents 1 to 13 who were alleged to be in possession thereof as mortgagees and for other

incidental reliefs. The suit was dismissed by both the Courts below on the preliminary ground that the question of the appellant''s title to redeem is

foreclosed as res judicata by reason of the decision in A.S. No. 62 of 1928 of the Subordinate Judge''s Court of Narsapur. Hence the appeal.

The facts giving rise to this plea of res judicata may be briefly stated. The properties in question originally belonged to one Seshayya who died

without issue in 1877. He executed the mortgage now sought to be redeemed in favour of one Subbaraju whose descendants are respondents 1 to

Seshayya''s widow who succeeded to his properties died in April, 1921. In March, 1925, the appellant purchased the properties in suit from

respondents 14 to 16 herein who were alleged to have inherited them on the widow''s death as the sister''s sons and nearest reversioners of

Seshayya. Soon after this purchase, the appellant brought O.S. No. 320 of 1925 in the District Munsif''s Court of Tanuku against respondents 1 to

13 and the deceased first defendant as mortgagees in possession for the same reliefs that are now claimed against them, impleading also his

vendors, the respondents 14 to 16, as defendants pro forma. The respondents 1 to 13 then pleaded inter alia, as they do now, that the appellant

was not entitled to redeem by virtue of his purchase from the sisters'' sons of Seshayya, as one Perraju who was an agnatic relation of Seshayya

was the nearest reversioner entitled to succeed on the widow''s death. This plea was upheld by the first Court and was confirmed by the Appellate

Court in A.S. No. 62 of 1928 referred to above. Perraju was not impleaded in that suit, and his sons applied in I.A. No. 1083 of 1931 in A.S.

No. 62 of 1928 to implead themselves as respondents in that appeal but the application was dismissed. Thus neither Perraju nor his sons were

parties to the previous litigation. In the present suit, however, they have been impleaded as defendants 18 to 21 and the appellant has asked for a

declaration that they are not entitled to the properties of Seshayya as their father Perraju was not his heir. It has to be mentioned that respondents

1 to 13 have since obtained a transfer of all such rights as these defendants who are respondents 17 to 20 herein might have to the suit properties.

The appellant''s learned Counsel has raised two contentions before me. First, that the present suit is not barred by the principle of res judicata as

the appellant has impleaded the sons of Perraju and prayed for the declaration referred to above against them and, further, the respondents 1 to 13

having also relied upon their purchase of the right, title and interest of the respondents 17 to 20 must now be regarded as litigating under a different

title. In other words, there can be no res judicata as the parties are not the same and they are also not litigating under the same title. Secondly, the

learned Counsel urged that, in any case, the question of the alleged adoption of the fourteenth respondent, one of the appellant''s vendors, by one

of the two sisters of Seshayya having been expressly left open by the appellate Court in the previous litigation, the appellant''s title, in so far as it

was claimed to have been derived from that respondent, cannot be said to be res judicata.

The latter contention can be dismissed in a few words. It is no doubt true that there was no adjudication as to the fourteenth respondent''s

alleged adoption in A.S. No. 62 of 1928, but that was because it was unnecesary to decide that question in view of the finding that Perraju was an

agnatic sapinda of Seshayya and as such would exclude the fourteenth respondent who would only be a Bandhu even if his adoption was true. It

cannot therefore be said that the appellant''s title to a half share in the suit properties though based on that adoption was left open. The appellant''s

title to the whole of the suit properties was negatived as it was found that none of his vendors was entitled to succeed to any of the properties of

Seshayya.

Turning now to the main contention, I find it difficult to appreciate how, by reason only of the addition of respondents 17 to 20 as parties to the

present suit, the latter can cease to be a suit between the same parties so far as the respondents 1 to 13 are concerned. It is of course a suit

between different parties as regards respondents 17 to 20 and it would be open to the appellant to proceed with it against these persons and

obtain, if possible, the declaration he has prayed for against them, but it would be obviously futile for him to do so, as the respondents 1 to 13 are

in actual possession of the properties, and I did not understand the appellant''s Counsel to say that his client desired to prosecute the suit against

the respondents 17 to 20 even if it were to fail against the other respondents. I am therefore clearly of opinion that the present suit must be

regarded as one between the same parties as the prior suit, so far as the really substantial reliefs which are prayed for only against respondents 1 to

13 are concerned.

The learned Counsel for the appellant relied on a decision of the Lahore High Court, Ganga Ram v. Mohamad Hussain AIR 1927 Lah. 900.

The facts of the case do not fully appear in the report but as far as they can be gathered, it is clear that the additional parties impleaded in the

second suit were persons against whom the substantial, if not the entire, reliefs claimed in the suit were directed, the plaintiff in the previous suit

having been impleaded apparently as a mere pro forma defendant. It was in those circumstances that the Court held that there was no res judicata

as it could not be said that the later suit was between the same parties as the earlier one. That decision does not, in my opinion, assist the appellant

here.

The appellant next urged that the principle of res judicata has no application here as respondents 1 to 13 must now be deemed to be litigating

under a different title as they claimed to have since acquired the rights of the respondents 17 to 20. This argument appears, to my mind, to proceed

upon a misconception of the true position. Respondents 1 to 13, as persons in possession of the properties, have the advantage of being able to

resist the appellant''s suit for possession, not necessarily by establishing their own title to the property but by merely putting the appellant to proof

of his title and the latter can succeed in the suit only on the strength of his own title. It is thus unnecessary for the respondents 1 to 13 to rely upon

the transfer which they have obtained from respondents 17 to 20 and their learned Counsel stated before me that they do not rely, in any manner

or to any extent, upon such transfer and that it might be entirely ignored for the purposes of this suit. The position, therefore, is that the appellant

has to establish his title to redeem the suit properties from the mortgage of the respondents 1 to 13, and it was precisely this that they failed to do in

the previous suit. In other words, it was adjudged in the previous suit that as between the appellant and respondents 1 to 13, the appellant was not

entitled to redeem these properties and I am unable to see why the principle of res judicata should not operate to make that adjudication

conclusive of the same question when it is sought to be raised again by the appellant against the same persons in the present suit.

The appellant''s Counsel placed reliance on a decision of this Court in Maddirala Jagannadham and Another Vs. Maddirala Venkata Subba Rao

and Others, . I confess that at first sight it might appear to lend some support to his contention for it is, in essential respects, the converse of the

present case; that is to say, if the appellant herein had succeeded in the former suit and the respondents 1 to 1 3, having subsequently obtained a

transfer from the representatives of Perraju had, on the strength of such transfer, sued the appellant for recovery of the same properties, the

decision would be exactly in point and on its authority it would have to be held that the later suit in the case supposed would not be barred by res

judicata. But the reversal of the position of the parties as in the present case, seems to my mind, to make an essential difference in the application

of the principle. For, in the case supposed, it would be necessary for the respondents 1 to 13, as plaintiffs in the suit, to put forward and establish,

in order to succeed, their title derived from Perraju''s representatives and, in so doing, they would be litigating under a different title. In the present

case, however, for the reasons I have already indicated, it is not necessary for them to rely upon such title as they occupy the position of

defendants in the suit and it is clear, so far as the appellant is concerned, that he is litigating under the same title as before. It seems to me,

therefore, that the decision in Maddirala Jagannadham and Another Vs. Maddirala Venkata Subba Rao and Others, has no application to the facts

of the present case.

The appellant''s learned Counsel next relied upon a decision of the Calcutta High Court in Ramani Mohan Roy v. Jagubandhu Karmakar.

(1916) 37 I.C. 881 That was a case where A sued and recovered certain properties from B as the son and heir of C who had gone abroad and

not been heard of for many years. C turned up subsequently and sued A for recovery of the same properties but, pending this litigation, died,

whereupon B was impleaded as his heir and representative which he now really was. It was held, if I may say so, rightly, that B was litigating under

a different title in the later suit brought by his father and there was therefore no bar of res judicata. I do not see how this decision supports the

contention of the appellant here.

For these reasons, I agree with the Courts below in holding that the question of the appellant''s title is res judicata by reason of the finding in the

previous litigation and dismiss the second appeal with costs of the respondents 1 to 13.

Leave granted.