Raghunath Singh Died Per Lrs A2 And ... vs Soni Bai

    T HE HON'BLE SRI JUST ICE N.R.L.NAGESWARA RAO
                        C.C.C.A.NO.110 OF 1996

JUDGMENT :-

     The plaintiff in O.S.No.501 of 1990 on the file of the

Court of VII Additional Judge, City Civil Court, Hyderabad is
the appellant herein.

     The suit one was filed for cancellation of the decree in

O.S.No.1438 of 1982 on the file of the Court of I Additional
Judge, City Civil Court, Hyderabad as confirmed in A.S.No.87
of 1986 and S.A.No.464 of 1988. The dispute between the

parties is with regard to a house which belonged to one late
Durjan Singh son of Late Sri Pooran Singh who died in 1933

leaving behind his widow Tulsa Bai and two daughters by
name Chandan Bai and Janaki Bai. Another daughter Rukmini
Bai pre-deceased him and the defendant is her daughter. The

plaintiff married Janaki Bai and out of the wedlock a boy by
name Rakesh was born in 1945 and he survived only for 21

days and consequently he succeeded to the property of Durgin
Singh. The defendant is in possession of the ground floor with

the permission. The defendant filed the suit O.S.No.1438 of

1982 suppressing the fact of birth of Rakesh and hence the

above decree is not valid and the plaintiff is entitled to the
property.

     The defendant filed a written statement denying the

claim that Rakesh was born and died within 21 days and the
contention that the defendant is staying in the house with

permission in the ground floor is also disputed. According to

her, she filed the suit O.S.No.1438 of 1982 against the
plaintiff herein for possession and mesne profits and the

decree was obtained and the plaintiff also raised the

contention about the birth of Rakesh and succeeding to the
property after the death of the boy, which was not accepted

and, therefore, the present suit is barred on the principles of
 res judicata.

      After framing the necessary issues, on behalf of the

plaintiff PWs.1 and 2 are examined and marked EXs.A-1 to A-4
and on behalf of the defendants DW.1        was examined and

marked Exs.B-1 to B-5 and Exs.C-1 to C-3.

      After considering the material evidence on record and
documents, the lower court dismissed the suit and aggrieved

by the said judgment, the present appeal has been filed.

      Now the point that arises for consideration is:-

      Whether the plaintiff is the owner of the property and

the decree in O.S.No.1438 of 1982 is liable to be set aside?
POINT :-

      The strength of the claim of the plaintiff is that one boy

was born to him through his wife Janaki Bai, survived for 21

days and consequently he succeeded to the property in the

family and the plaintiff is, therefore, owner of the property.

This fact was considered in the first appellate court and this
contention was not accepted. The lower court also found from

the contention in the written statement filed in O.S.No.1438

of 1982, the present plea is not raised. It is only in the first

appeal such a plea was raised. Though Ex.A-1 is said to have

been issued by the Corporation about the birth of the child to

Janaki Bai on 21-08-1954, the lower court found that it does
not show the name of the father. The original Register Ex.A-2

was summoned and the court found that there is a blank.

There is also an inconsistency as to where the child was born.

In fact, the first appellate court in its judgment Ex.B-4

specifically found that though in the evidence the present

plaintiff claimed that a boy was born, there was no plea in the

written statement and it was found that the defendant who is
surviving daughter alone succeeded to the property. It was

also noticed that Janaki Bai died even prior to the death of

Tulasi Bai and consequently Janaki Bai does not get any rights
 and even if a son is to be born, he will not get any right. In

the second appeal also, the above fact was upheld. Evidently,

the title of the defendant has been considered in the earlier

suit and the contention of the present plaintiff has not been

accepted and there is neither fraud nor illegality in the

earlier judgments. When the judgment in the earlier suit has
become final and when the findings therein about the birth of

son Rakesh is also decided, again it is not open to the

plaintiff to reagitate the same and the learned Judge has

rightly dismissed the suit and there are no grounds to

interfere with the judgment and decree passed by the lower

court and accordingly the appal is liable to be dismissed.
     Accordingly, the City Civil Court Appeal is dismissed. No

costs.


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                                  N.R.L. NĀGESWARA RĀO,J
03-11-2011

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