Telangana High Court
Gouraram , Gone Sudarshan vs Mangali Neelaiah Died Per Lrs on 4 October, 2024
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HON'BLE SMT.JUSTICE P.SREE SUDHA
Second Appeal No.92 of 2023
JUDGMENT:
This Second Appeal is filed against the judgment and
decree dated 25.11.2022 in A.S.No.24 of 2022 on the file of the
Principal District Judge, Wanaparthy in which order dated
11.02.2011 in I.A.No.279 of 2000 in O.S.No.81 of 2000 on the file
of Junior Civil Judge, Nagarkurnool was confirmed.
2. Heard arguments of learned counsel for the appellants and
learned counsel for the respondents.
3. Initially O.S.No.116 of 1998 is filed for perpetual injunction
and it was dismissed and the said order was confirmed in the
first Appellate Court and second appeal is filed against the said
order. Later O.S.No.81 of 2000 is filed for declaration and title
and consequential injunction as such I.A is filed for rejection of
plaint and it was allowed by the trial Court on the ground as the
present suit is filed for the very same relief in a suit for injunction
and it was decided substantially and it is not maintainable on the
ground of res judicata. The suit was confirmed by the first
Appellate Court against which this second appeal is preferred and
learned counsel for the appellant relied upon a citation reported
in "Keshav Sood v. Kirti Pradeep Sood and Ors." 1 wherein it
was held as follows:
AIR Online 2023 SC 902
"1. Scope of Rule 11 of Order VII of CPC is
concerned, the law is well settled. The Court
can look into only the averments made in the
plaint and at the highest, documents produced
along with the plaint. The defence of a
defendant and documents relied upon by him
cannot be looked into while deciding such
application.
2. The issue of res judicata could not have
been decided on an application under Rule 11
of Order VII of CPC. The reason is that the
adjudication on the issue involves consideration
of the pleadings in the earlier suit, the
judgment of the trial Court and the judgment of
the Appellate Courts. Therefore, we make it
clear that neither the learned Single Judge nor
the Division Bench at this stage could have
decided the plea of res judicata raised by the
appellant on merits."
4. Learned counsel for the respondents relied upon another
citation reported in "Sajjadanashin Sayed Md. B.E.Edr. (D) By
Lrs. V. Musa Dadabhai Umer and Ors." 2 wherein it was held as
follows:
" May be, the question of title was decided,
though not raised in the plaint. In the latter
suit on title, the finding in the earlier suit on
title would not be res judicata as the earlier suit
was concerned only with a possessory right.
These two decisions, in our opinion,
cannot be treated as being contrary to each
MANU/SC/0122/2000
other but should be understood in the context
of the tests referred to above. Each of them can
perhaps be treated as correct if they are
understood in the light of the tests stated
above. In the first case decided by this Court, it
is to be assumed that the tests above referred to
were satisfied for holding that the finding as to
possession was substantially rested on title
upon which a finding was felt necessary and in
the latter case decided by the Madras High
Court, it must be assumed that the tests were
not satisfied. As stated in Mulla, it all depends
on the facts of each case and whether the
finding as to title was treated as necessary for
grant of an injunction in the earlier suit and
was also the substantive basis for grant of
injunction. In this context, we may refer to
Corpus Juris Secundum( Vol.50, para 735,
page 229) where a similar aspect in regard to
findings on possession and incidental findings
on title were dealt with. It is stated:
"Where title to property is the basis of the
right of possession, a decision on the question
of possession is res judicata on the question of
title to the extent that adjudication of title was
essential to the judgment; but where the
question of the right to possession was the only
issue actually or necessarily involved, the
judgment is not conclusive on the question of
ownership or title".
5. It is for this Court to see whether the issue was earlier
decided independently or collaterally. However, learned counsel
for the respondents further stated that it is a second round of
litigation and if the matter is remanded back it amounts to third
round of litigation. However, as rightly pointed by the learned
counsel for the appellants, the Order VII, Rule 11 cannot be
allowed on the ground of res judicata. Therefore, this Court finds
it reasonable to set aside the order of the first Appellate Court.
6. In view of above discussion, this second appeal is allowed
by setting aside the order of the first Appellate Court in A.S.No.24
of 2022 dated 25.11.2022 and to remand the matter back to the
Junior Civil Judge, Nagarkurnool with a specific direction to
dispose of the suit within a period of six (06) months from the
date of receipt of a copy of this order. There shall be no order as
to costs.
As a sequel, miscellaneous petitions, pending if any, shall
stand closed.
___________________
P.SREE SUDHA, J
Date:04.10.2024
Bw
