Andhra HC (Pre-Telangana)
Devarapu Narasimharao vs Yerrabothula Peda Venkaiah And Ors. on 18 September, 1997
Equivalent citations: 1998(2)ALT513
JUDGMENT Krishna Saran Shrivastav, J.
1. The 2nd defendant in O.S. No. 17/79 and O.S. No. 61/79 and assignee decree holder in E.P. No. 61/79 is the appellant.
2. The decree holder assignor of decree in O.S. No. 312/68, along with the assignee of the decree, that is the appellant, filed a joint application for execution in E.P. No. 61/79 (old No. E.P. 281/77) against the deceased G. Tatayya, judgment debtor, for recovery of possession of the suit properties and arrears of rent. They obtained an order for recovery of possession alleging that the 1st respondent-plaintiff was obstructing the delivery of possession to the appellant. The appellant filed an application in E.A.756/79 for removal of the obstruction while the 1st respondent-plaintiff filed E.A. No. 197/79 Under Section 47 of the Code of Civil Procedure. He also filed civil suit in O.S. No. 61/79 for permanent injunction against Smt. Lakshmi Narasamma and the appellant. He also filed a civil suit in O.S. No. 17/79 for specific performance of the agreement of sale, Ex.A-1, dated 25-4-1977, in respect of 'B' Schedule Property and permanent injunction against his vendee (sic. vendor), late Smt. Lakshmi Narasamma and the appellant. All these cases were disposed of by the Principal Subordinate Judge, Guntur, by a common judgment on 22-7-1985. The Principal Subordinate Judge passed decree as prayed for in O.S.17/79 and O.S.61/79 and allowed E.A. 197/79 Under Section 47 of the Code of Civil Procedure, but dismissed E.P. No. 61/79 and E.A. No. 756/79 which were filed by the appellant and his assignor, late K. Krishnaiah. The 2nd defendant challenged the judgment, by preferring A.S. No. 2886/85, passed in O.S. No. 17/79, Transfer A.S.621/87 against the judgment passed in O.S. No. 61/79 and preferred another transfer appeal A.S. No. 622/89 against the judgment passed in E.A. No. 756/79. He also preferred C.R.P. No. 2722/85 against the judgment passed in E.P. No. 61/79 and C.R.P. No. 2766/85 against the judgment passed in E.A. No. 197/79.
3. The learned single Judge, through a common judgment, disposed of the above mentioned three appeals and two revision petitions on 20-7-1989. The learned single Judge dismissed all the aforesaid three appeals and both the revision petitions. The 2nd defendant has filed L.P.A. No. 339/89 against the judgment passed in A.S. No. 2886/1985, L.P.A. No. 340/89 against the judgment passed in Tr.A.S. 622/87 and L.P.A. No. 341/89againstthejudgment passed in Tr.A.S. 621/87. He had also filed special leave to appeal bearing No. 13436/90 and 13437/90 before the Supreme Court, being aggrieved by the judgement passed in C.R.P. No. 2766/85 and 2772/85. On 22-11-1990, the learned Counsel for the petitioner submitted before the Apex Court that, in view of the fact that the L.P.As. were then pending in the High Court on the very questions involved in these matters, the special leave petitions were not pressed without prejudice to their contentions in the L.P.As. The submission was recorded and the special leave petitions were accordingly dismissed as not pressed on the same day, that is on 22-11-1990.
4. It is a matter of record that, late K. Krishnaiah had obtained a decree for arrears of rent and recovery of possession of the plaint schedule property against the deceased G. Tatayya in O.S. No. 312/68, dated 25-3-1970. Thereafter, he sold the plaint schedule property and assigned the decree to the appellant and then they jointly filed E.P. No. 61/79 (Old No. EP 281/77) for recovery of possession and arrears of rent against late G. Tatayya and late Satyanarayana, s/o. late G. Tatayya, and they also obtained order for possession in E.A. No. 61/79. The appellant also filed E.A. No. 756/79 for removal of obstruction caused by the 1st respondent-plaintiff and G. Satyanarayana, whereupon the 1st respondent-plaintiff also filed E.A.197/79 Under Section 47 of the Code of Civil Procedure. Later, he filed a suit for permanent injunction in O.S. No. 61/79 against late K. Krishnaiah, the assignor of decree, the appellant-assignee of the decree and late K. Lakshmi Narasamma and filed another suit for specific performance in O.S. No. 17/79 against the deceased K. Lakshmi Narasamma, alleging that she had executed an agreement, Ex.A-1, for sale of the 'B' schedule property on 25-4-1977.
5. In brief, the case of the 1st respondent-plaintiff was that late K. Lakshmi Narasamma had inherited the plaint schedule property along with her son, since deceased, from her husband late Pattabhiramayya who had died intestate on 30-8-1955 and used to lease it out to others. She had agreed to sell 211-1/9 Sq.Yds. shown as 'B' schedule property to him under an agreement of sale, Ex.A-1, on 25-4-1977 at the rate of Rs. 100/-per sq.yd. and received an advance of Rs. 11,111/- and had agreed to receive the balance at the time of registration of the sale deed and had leased out the remaining property, that is 'A' schedule property to him by executing a lease deed in his favour. He further pleaded that, late K. Krishnaiah and his vendee that is the appellant had no right, title or possession in the plaint schedule property. Late K. Krishnaiah, who was the brother of late Pattabhiramayya-husband of late K. Lakshmi Narasamma, had fabricated a will in his favour alleged to have been executed by late Pattabhiramayya, but never remained in possession of the plaint schedule property. Therefore, he is entitled for a decree of permanent injunction against them as also a decree for specific performance of the contract against her vendor, late K. Lakshmi Narasamma, and his application Under Section 47 of the Code of Civil Procedure should be allowed dismissing the petition filed by the appellant for removal of obstruction.
6. Late K. Lakshmi Narasamma, through her written statement, admitted the claim of the 1st respondent-plaintiff in its entirety. The appellant resisted both the suits alleging that late Pattabhiramayya, of his own free will, had executed a will, Ex.B-10, on 25-8-1955 in favour of his brother K. Krishnaiah bequeathing, inter alia, the suit properties and had got it duly registered. After his death on 30-8-1955, late K. Krishnaiah had inherited, inter alia, the plaint schedule property and had leased a portion of the plaint schedule property to one Mandapati Venkata Subbaiah and the remaining to late G. Tatayya, on 10-12-1955. He filed a suit in O.S. No. 112/58 against M. Venkatasubbaiah for ejectment and rent which was decreed on 6-3-1959. After obtaining possession from him, he leased out this land also to G. Tatayya. Thus, G. Tatayya became the tenant in respect of the plaint schedule property, through rent deed, dated 22-9-1959. He had also filed a suit against G. Tatayya for eviction and recovery of arrears of rent and obtained a decree in his favour on merits on 25-3-1970. Late G. Lakshmi Narasamma had also filed a suit in O.S. No. 136/70 challenging the validity of the will and decree for confirmation of possession and had obtained an interim injunction in I.A. No. 2007/70 on 2-11-1970 which remained in force upto 12-12-1975. During the pendency of this suit, late K. Krishnaiah had filed a suit for recovery of rent for the subsequent period, that is from 1-6-1968 to 31-5-1971 in O.S. No. 910/71 against late G. Tatayya. This suit was consolidated with the suit O.S. 136/70 and was re-numbered as O.S. 14/73. In his suit, the deceased K. Lakshmi Narasamma got herself impleased as the 2nd plaintiff. On 12-12-1975, late K. Lakshmi Narasamma withdrew her suit No. OS 136/1970 through a withdrawal memo while the suit filed by late K. Krishnaiah against G. Tatayya was decreed on 30-1-1976. Earlier, K. Lakshmi Narasamma had also filed O.P. No. 80/61 against K. Krishnaiah and his tenants for possession and mesne profits. But, the plaint was rejected on 25-6-1963. Late K. Lakshmi Narasamma was never in possession of the suit property right from the date of the death of her husband, that is 30-8-1955, till the disposal of the suit in O.S. No. 14/73, dated 30-1-1976. Late K. Krishnaiah had sold the plaint schedule property on 22-3-1977 for a consideration of Rs. 40,000/-. Thereafter the appellant along with K. Krishnaiah sought execution of the decree passed in O.S. No. 312/68 in E.P. No. 61/79 (Old No. 218/77). The 1st respondent obtained a nominal and bogus agreement of sale on 25-4-1977 and not only had resisted delivery of possession but had also filed suits on false allegation. The deceased Tatayya had not handed over possession to the appellant or to his vendor in execution of the decree in O.S. No, 312/68. On his own showing, Tatayya had remained in possession of the plaint schedule property upto 1-6-1970. Thus, late K. Lakshmi Narasamma was not in possession of the plaint schedule property from the death of her husband, at least till 1-6-1970 and, therefore, her right to possession was extinguished by the lapse of more than 12 years. She had also withdrawn her suit bearing No. 136/70 on 12-12-1975 and the suit instituted by K. Krishnaiah in O.S. No. 14/73, in which she was a co-plaintiff, had been decreed on 30-1-1976 only in favour of K. Krishnaiah. Thus, the deceased K. Lakshmi Narasamma had no title to the suit property and, therefore, she could not convey any title to the 1st respondent-plaintiff. The appellant was a bonafide purchaser in good faith. The deceased K. Lakshmi Narasamma had neither succeeded to the plaint schedule property nor was ever in possession of the same. She had also from time to time unsuccessfully challenged the will which had been executed in favour of late K. Krishnaiah by his deceased brother Pattabhiramayya. The 1st respondent, in collusion with the legal representatives of G. Tatayya, has entered into possession of the plaint schedule property without any right, title or interest and, therefore, the discretionary relief of specific performance should not be granted to him.
7. The trial Court, on assessment of the evidence on record, reached the conclusion that the will in question was not genuine and valid. The deceased K. Lakshmi Narasamma, defendant No. 1, had every right to convey the property in favour of the 1st respondent-plaintiff and she had executed an agreement of sale in his favour and that she had also leased out the property in favour of one Ramarao, who was the brother of the 1st respondent-plaintiff. The trial Court had also recorded a finding that there was no satisfactory evidence on record to hold that, late K. Krishnaiah had been in continuous possession for 12 years on the strength of the will in his favour, hostile to the knowledge of late K. Lakshmi Narasamma, who had obtained possession directly from G. Tatayya and the decree passed in O.S.312/68 was not binding on the 1st appellant as also on her vendor late K. Lakshmi Narasamma, the 1st defendant. In result, the trial Court decreed the suit for permanent injunction and specific performance of the contract, as prayed for by the 1st respondent-plaintiff. It further found that the 1st respondent-plaintiff had succeeded in O.S. No. 17/79 and 61/79 and, therefore, he was entitled to the relief claimed in E. A. No. 197/79 and accordingly the order of delivery passed in E.P. No. 61/79 was set aside.
8. The learned single Judge formulated the following two points for consideration.
(1) Whether Ex.B-10 will dated 25-8-1955 is true and valid? and (2) Whether the appellant has perfected his title to the property by adverse possession?
9. The learned single Judge, on assessment of the evidence on record, agreeing with the trial Court, held that the appellant has failed to establish that the will, Ex.B-10, was genuine and has further failed to establish that he has perfected his title to the suit property by adverse possession. Holding so, the learned single Judge, dismissed A.S. No. 2886/85 and Tr.A.S. No. 621 and 622 of 1987 as also C.R.P. Nos. 2766 and 2772 of 1985.
10. Feeling aggrieved by the impugned judgment of dismissal of appeals, the 2nd defendant has preferred the aforementioned three appeals which are being disposed of by this common judgment.
11. After the conclusion of the arguments of the learned Counsel of both sides, an application under Order 41, Rule 27 read with Section 151 of the Code of Civil Procedure, bearing No. CMP 12724/97 has been filed on behalf of the appellant for taking on record the certified copy of the registration extract of the registered lease deed, dated 22-9-1959 and certified copy of the decree with schedule passed in O.S. No. 112/58, dated 6-3-1959 and arguments on this application have also been heard by us.
12. Sri N.V. Suryanarayna Murthy, learned Counsel of the 1st respondent has raised a preliminary objection as to the maintainability of these appeals on the ground that through the impugned judgement, the learned Single Judge has also dismissed CRP No. 2766/85 and CRP No. 2772/85 and the appellant, though had filed two special leave petitions before the Supreme Court, subsequently did not press them and, therefore, they had been dismissed as not pressed, with the result that the judgment passed by the learned Single Judge in respect of the aforesaid two revision petitions has become final. This judgment operates as res judicata and, therefore, all the three appeals should be dismissed on this count only. Reliance has been placed on the case of Sheodan Singh v. Daryao Kunwar .
13. On the other hand, Sri C. Poornaiah, the learned Counsel of the appellant, has contended that the 1st respondent-plaintiff has filed E.A. 197/79 Under Section 47 of the Code of Civil Procedure to set aside the delivery order passed in E.P.61/79 in O.S. 312/68 while the appellant had filed E.A.756/79 for removing the obstruction caused by the 1st respondent. The trial Court in its common judgment had decided both these petitions in favour of the 1st respondent on the ground that he had succeeded as plaintiff in O.S. 17/79 and O.S. 61/79 and as such he was entitled to the relief prayed for. Because in E.P. 61/79, the 1st respondent-plaintiff and/or his vendor, Smt. Lakshmi Narasamma were not parties and, therefore, the 1st respondent-plaintiff had no right to prefer an application Under Section 47 of the Code of Civil Procedure and as such the executing Court had no jurisdiction to decide E.A. 197/79 because it was untenable. It has also been contended that no specific issue was framed in both these petitions and no finding was recorded on merits in these two petitions. The disposal of these two petitions depended on the decision of the aforementioned civil suits and, therefore, merely because the special leave petitions were withdrawn, it cannot be said that the appeals are barred by the principles of res judicata.
14. The trial Court in its common judgement held that the 1st respondent-plaintiff was entitled to specific performance of the contract. It also held that the 1st respondent-plaintiff was entitled to permanent injunction. These findings were recorded on assessment of the evidence on record. Then, in Para 30 of its judgement, the trial Court observed that, the 1st respondent-plaintiff has succeeded in both the civil suits and as such he is entitled to the relief prayed for and accordingly the order of delivery passed in the execution petition, E.P.61/79, is set aside and for similar reasons, the Execution Application No. 197/79 was also allowed. The learned single Judge on reassessment of the evidence on record, confirmed the finding of the trial Court recorded in O.S. 17/79 and O.S. 61/79 and as a sequel to that, dismissed all the three appeals and both the revision petitions. There appears to be no discussion either by the trial Court or by the learned Single Judge in respect of the question involved in Tr.A.S. No. 622/89 (regarding removal of obstruction) that arose against the order passed in E.A.756/79 as also both the aforesaid revision petitions.
15. From what is stated above, it is evident that the dismissal of the revision petitions wholly depended on the disposal of both the appeals that have arisen out of the judgment passed on merits in O.S. 17/79 and O.S. 61/79. Thus, it appears that the consequential orders, passed in revision petitions, have no independent status. It is also noteworthy that in case the appeals are allowed, the appellant would be entitled to obtain possession of the suit property in execution of the decree passed in O.S.312/68 through E.P.61/79 without filing fresh execution petition, because, there would be an order for removal of the obstruction caused by the 1st respondent-plaintiff. The Apex Court has not decided the question involved in both the special leave petitions on merits but these petitions were dismissed in limine on account of the statement of the learned Counsel of the appellant that very questions involved in those matters were pending in High Court for disposal and this admission was also recorded. The case of Sheodan Singh (1 supra) is distinguishable on facts, because, in that case the two suits had common issues and both the suits were decided by the trial Court on merits whereas, as noted above, the question involved in both the execution petitions was different from the issue involved in both the civil suits. Similarly, the case of Ram Prakash v. Charan Kaur and Anr., 1997 (3) ALD (S.C.S.N.) 1=1997 (2) ALT 22 (D.N.) is distinguishable on facts, because, in this case, counter suits were filed for damages against each other and both the suits were dismissed. The respondent, Charan Kaur, successfully preferred the appeal, but the petitioner, Ram Prakash, did not file any appeal and under these circumstances, the petitioner's second appeal against the decree passed in the first appeal in favour of the respondent, Charan Kaur, was found to be barred by res judicata since both the suits arose from the same cause of action and the same question was directly in issue in both the suits. As noted above, such is not the case here. There appears to be no question of apprehended conflict, between the decision that may be passed in this appeal and the impugned order of the learned single Judge passed in these revisions, because, it is a consequential order, particularly when the order of the Supreme Court has not been passed on merits, but it is only an order of dismissal of the special leave petitions as not pressed. For the reasons aforesaid, we are of the view that the principles of res judicata cannot be extended and the appeals cannot be held to be barred by the principles of res judicata.
16. It has been contended on behalf of the appellant that the vendor of the 1st respondent-plaintiff, Smt. Lakshmi Narasamma, had withdrawn the suit O.S. 136/70 without obtaining the leave of the Court. In this suit, the validity of the will executed by her husband in favour of late K. Krishnaiah, the vendor of the appellant, was challenged and a decree for declaration of title and confirmation of possession and permanent injunction was sought. The 1st respondent, who claims to be the prospective purchaser of the suit property from Smt. Lakshmi Narasamma, has no right to reagitate the same matter either in O.S.61 /79 for permanent injunction or in O.S.17/79 for specific performance of the Plaint 'B' Schedule Property and permanent injunction on account of the provisions of Order 23, Rule 1 (4) of the Code of Civil Procedure. Though the appellant has not taken the specific plea that the appellant (sic. 1st respondent) who is the vendee of Lakshmi Narasamma is precluded from instituting the suit, the appellant has categorically pleaded that she had lost all her rights in the suit property by virtue of the "will" in favour of K. Krishnaiah and she had no title in the suit proeprty to be conveyed to the 1st respondent-plaintiff. This plea goes to the root of the matter and has a bearing on the jurisdiction of the Court and on this count only, the appeals should be allowed.
17. On the other hand, it has been urged on behalf of the 1st respondent-plaintiff that the appellant had not raised a specific plea in his written statement regarding the bar under Order 23, Rule 1 (4) of the Code of Civil Procedure and, therefore, no issue was framed by the trial Court. This question was neither considered and decided by the trial Court nor by the learned Single Judge. The bar under Order 23, Rule 1 (4) and Section 11 of the Code of Civil Procedure is identical. The question of res judicata cannot be gone into unless it has been properly raised by the pleadings or in the issues and the plea of res judicata is not the one which affects the jurisdiction of the Court and, therefore, it is a plea which can be waived by a party; therefore, the plea of bar under Order 23, Rule 1 (4) of the Code of Civil Procedure cannot be permitted to be raised for the first time in these appeals. Reliance has been placed on the case of Kattragadda China Anjaneyulu and Anr. v. Kattragadda China Ramayya and Ors., and on the case of the Commissioner, Hindu Religious and Charitable Endowments, Madras v. V. Krishnaswami and Anr., . It has been furtherurged that, during the cross-examination of Smt. Lakshmi Narasamma, no question has been put to her though the cross-examination was very lengthy regarding O.S. 136/70 and, therefore, it is not open to the appellant to raise the plea based under Order 23, Rule 1 (4) of the Code of Civil Procedure, particularly when the documents, Ex.B-22 to Ex.B-30, were not put to her.
18. In the case of Kattragadda China Anjaneyulu (supra), a Full Bench of this Court has held:-
"To invoke the doctrine of res judicata, the ingredients contemplated by S. 11 should be satisfied. The Court has to see whether the elements that constitute res judicata are present in a given case, which means an investigation into the facts bearing upon the several aspects, contemplated by that section. It is not a pure question of law which could be debated at any stage."
19. Thus, whenever the plea of res judicata is raised, the Court has to investigate the facts in order to determine whether the requirements of Section 11 of the Code of Civil Procedure have been fulfilled or not. The concerned party has to file copy of the pleadings of the earlier suit as also copy of the issues and the judgment so that the Court can see whether the required elements are present on record or not. Where the concerned party does not place the relevant material before the Court, the question of making an investigation into the facts and invoking the doctrine of res judicata does not arise, because, it is not a pure question of law and the plea of res judicata is not the one which affects the jurisdiction of the Court. Thus, it is a plea in bar of trial of a suit or an issue, as the case may be, which a party can choose to waive.
20. Sub-rule (3) and Sub-rule (4) of Order 23 Rule 1 and Section 12 of the Code of Civil Procedure read as under:-
Sub-rule (3):
Where the Court is satisfied-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim.
it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
Sub-rule (4):
Where the plaintiff -
(a) abandons any suit or part of claim under Sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
Bar to further suit:- Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.
21. In the case of Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and Ors., , it is held that, in order to prevent a litigant from abusing the process of the Court by instituting again and again in the same cause of action without any good reason, the Code of Civil Procedure insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in Order 23, Rule 1 (3) of the Code of Civil Procedure.
22. A combined reading of Sub-rule (3) and Sub-rule (4) of Order 23 Rule 1 and Section 12 of the Code of Civil Procedure shows that, where a plaintiff withdraws without permission his suit or part of the claim, he is disentitled to institute a fresh suit in respect of such cause of action. The word "preclude", which occurs in Sub-rule (4) of Rule 1 of Order 23 of the Code, means the disentidement to institute a suit in respect of the same cause of action, which is made crystal clear in Section 12 of the Code of Civil Procedure. Under these provisions, the Court has not to make any enquiry of whatever type, much less similar to the investigation that is to be made in a case where the plea of res judicata is raised, to see whether the elements that constitute res judicata are present in a given case or not. This provision shuts the right of a party to institute a fresh suit. The consequence of not obtaining permission to bring fresh suit at the time of withdrawal of the suit is that it takes away the right of the plaintiff to bring a fresh suit and the cause of action to bring a fresh suit is lost to him.
23. For the foregoing reasons, it cannot be said that, similarly as the plea of res judicata, if waived, cannot be taken during the pendency of the trial or at the appellate stage, the plea of bar under Order 23, Rule 1 (4) of the Code of Civil Procedure, if not taken at the relevant time, cannot be taken subsequently during the trial or in appeal, because, it is a pure question of law that can be debated at any stage of the suit including appeal and affects the jurisdiction of the Court as it goes to the root of the matter and can be put forward at any stage of the suit or appeal. Similarly, the bar of fresh suit contemplated under Order 9, Rule 9 of the Code of Civil Procedure is also absolute.
24. In the case of The Commissioner, Hindu Religious and Charitable Endowments, Madras v. V. Krishnaswami and Anr. (4 supra), a Division Bench of the Madras High Court has held that, even as in the case of res judicata a defence in respect of an action under Order 9 Rule 9 of the Code of Civil Procedure is not an inexhorable or inflexible defence in the sense that such a defence can be invoked as an answer to a claim made by a party in an action at any stage of the proceedings and that the invoking of such a defence cannot be trammelled by any other rule of law. Even so, in respect of a plea under Order 9, Rule 9 of the Code of Civil Procedure, it is one which a party can choose to waive and defend a later action on the strength of his case. In this case, the provisions of Section 12 of the Code of Civil Procedure have not been discussed. For the reasons given in the preceding paragraphs, we respectfully disagree with the view taken by the Division Bench of the Madras High Court.
25. Smt. Lakshmi Narasamma, D.W.1, has admitted in cross-examination that she had filed a suit for declaration that the will is fabricated. There is unchallenged testimony of K. Krishnaiah, D.W. 5, on record that Smt. Lakshmi Narasamma and N. Radhakrishna Murthy had filed a suit against him in O.S. 136/70. During the pendency of that suit, he had also filed a suit in O.S.910/71 which was later renumbered as O.S.14/71 for recovery of lease money against G. Tatayya. Smt. Lakshmi Narasamma was also impleaded as a party to that suit. She and Radhakrishna Murthy filed separate memos and had withdrawn the suit O.S.136/70 and decree only in favour of K. Krishnaiah has been passed by the trial Court. The copy of the plaint is Ex.B-22. A perusal of the pleadings shows that the validity of the will in favour of K. Krishnaiah had been challenged in O.S. No. 136/70 and relief for declaration of title, confirmation of possession and permanent injunction had been sought in it. The memos for withdrawal of this suit are at Ex.B-28 and Ex.B-29. The copy of the decree is at Ex.B-30. The copy of the plaint in O.S.910/71 (New No. 14/71) is at Ex.B-31 and the order impleading Smt. Lakshmi Narasamma is at Ex.B-33. Later she did not contest the suit and her Advocate had withdrawn his vakalat vide copy of the memo, Ex.B-34. From what is stated above, it is established that, Smt. Lakshmi Narasamma and one another had filed a suit against the vendor of the appellant and one other in O.S.136/70 for declaration of her title, confirmation of possession and permanent injunction and in this suit, the validity of the impugned will had also been challenged and this suit had been withdrawn without obtaining the leave of the Court to institute a fresh suit on the same cause of action. Under these circumstances, not putting the aforesaid documents to Smt. Lakshmi Narasamma during her cross-examination is inconsequential. The question, therefore, is whether Smt. Lakshmi Narasamma and/or her vendee - the appellant (sic. 1st respondent-plaintiff) - were precluded from instituting any fresh suit in respect of the same subject-matter or such part of the claim?.
26. As noted above, the "will" in question had been challenged in O.S.136/70 that had been filed by Smt. Lakshmi Narasamma, the vendor of the first respondent, and in this suit, relief of declaration of title and permanent injunction had also been claimed. Therefore, Smt. Lakshmi Narasamma was incompetent to institute a fresh suit again challenging the "Will" in question and claiming relief of declaration of title and permanent injunction.
27. There is no reason as to why the disability should not be extended to persons claiming through a plaintiff against whom the order under Order 23, Rule 1 (4) of the Code of Civil Procedure applies. If the disability does not extend to persons claiming title through such plaintiff, it would enable such plaintiff to circumvent the provisions of Order 23, Rule 1 (4) of the Code of Civil Procedure by making an assignment or agreement to sell after-withdrawal of the suit without obtaining the leave of the Court. True it is that under Order 23, Rule 1 (4) of the Code of Civil Procedure it is not mentioned that the representatives or persons claiming or deriving title through such plaintiff shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim; yet, there appears to be no reason for holding that such plaintiff does not include his heirs and representatives in interest on the general principles of law that an order by or against such person binds not only him but also the persons claiming through him. The heirs or persons claiming title through such plaintiff can never be said to be in a better position than the person through whom they claim such subject-matter or part of the claim. Therefore, the word "plaintiff" used in Order 23, Rule 1 (4) of the Code of Civil Procedure includes his heirs and representatives in interest.
28. On going through the pleadings in both the suits filed by the 1st respondent and his vendor, Smt. Lakshmi Narasamma, in O.S. No. 136/70, it could be seen that the main relief sought was for declaration that the impugned "will" in question is bogus and, therefore, Smt. Lakshmi Narasamma is the owner of the suit lands. Similarly, prayer for issuance of permanent injunction in all the suits had been made. The property is the same. Since Smt. Lakshmi Narasamma had withdrawn the suit O.S. 136/70, that is the earlier suit, without obtaining liberty to institute a fresh suit, the present two suits are hit by Sub-rule (4) of Rule 1 of Order 23 of the Code of Civil Procedure. Though no specific plea had been taken by the appellant, because the matter goes to the root of the case, the 1st respondent was precluded from instituting suits bearing No. O.S. 17/79 and O.S. 61/79.
29. It is next contended on behalf of the appellant that the trial Court as also the learned Single Judge has erred in holding that the "will" in question, Ex.B-10, is not genuine. K. Krishnaiah had nursed his deceased brother, Pattabhiramayya, and gave him good treatment. The deceased Pattabhiramayya was neglected by his wife, Smt. Lakshmi Narasamma, and his children and, therefore, out of love and affection, the deceased Pattabhiramayya has executed the will of his free own will in favour of his brother K. Krishnaiah. The learned Single Judge should have considered the condition of the testator at the time of executing the will Ex.B-10. Because his hands were shaking, he directed the scribe, D.W.3, to write the word "Nishani". Even the Registrar had advised the scribe to do the same when he was trying to take the thumb impression of the testator on the will, Ex.B-10. The minor contradictions should not have been taken notice of, because, the witnesses were giving evidence after a lapse of 30 years from the date of the execution of the will, Ex.B-10.
30. On the other hand, relying on the case of Raja Ratan Gopal Sainchar (Died) and Ors. v. Rajendra Prasad and Ors., (D.B.), it has been urged by the learned Counsel of the 1st respondent that, in Letters Patent Appeal, a finding of fact should not be disturbed unless the finding can be said to be perverse. The learned Single Judge has correctly appreciated the evidence on record and, therefore, it does not call for any interference.
31. In the case of Raja Ratan Gopal Sainchar (Died) and others (supra), (a Division Bench of this Court) explaining the scope of reappraisal of evidence, one of us (Lingaraja Rath, J.), has held that:-
"The jurisdiction exercised by the Court while deciding a letters patent appeal is that of a corrective one only to safeguard as to whether any judgment of the Court can be said to be untenable in law. The mechanism is an internal one for the Court to correct itself either on questions of fact or law. The jurisdiction is not available to disturb a finding of fact reached by the learned Single Judge unless the finding can be said to be wholly against the evidence on record. A Division Bench would not substitute appreciation of evidence with another finding of its own only because it is possible to reach a different conclusion also."
32. The learned Single Judge has found that the testator and K. Krishnaiah were not on very good terms, that the self-serving statement of K. Krishnaiah that the testator was not on cordial terms with his wife, Smt. Lakshmi Narasamma was not reliable, that there was no motive for the testator Pattabhiramayya to execute the. will in favour of K. Krishnaiah excluding his wife, minor son and unmarried daughter as also his other unmarried brother, that the Registrar was not examined, that the attestors had not seen the testator affixing his thumb impression on the will, Ex.B-10, and that the theory of nonavailability of ink pad was inconvincible. These findings cannot be said to be without any evidence on record or based on misreading the evidence on record. Even if a second conclusion can be drawn on reassessment of the evidence on record, we are not inclined to substitute the evidence with another finding of our own, particularly because the finding reached by the learned Single Judge appears to be on proper appreciation of the evidence on record and, therefore, no interference is called for in the finding of the learned Single Judge that the will, Ex.B-10, could not be proved in this case by the appellant.
Even, so, in our view, confirming the view of the learned Single Judge that the "will" has not been proved to be genuine, does not make any difference, because, we have held earlier that the 1st respondent was precluded from filing both the aforementioned suits. When such is the position, even if both the suits had been instituted, obviously the court had no jurisdiction to decide them due to the bar of Order 23, Rule 1 (4) of the Code of Civil Procedure. Under these circumstances, the decision of the trial Court as well as of the learned Single Judge should be considered to be non-est because, the Civil Court had no power to try the suit again. Even assuming for the sake of argument that the Civil Court had jurisdiction to try the aforementioned suits and the finding regarding the validity of the "will" is legal, it is of no help to the 1st respondent for the reasons which we shall supply in the subsequent paragraphs.
33. Before we proceed further, we would like to dispose of the C.M.P. No. 12724/97 filed under Order 41, Rule 27 read with Section 151 of the Code of Civil Procedure for adducing additional evidence. It is well settled that under Rule 27 of Order 41 of the Code of Civil Procedure, production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are: Where (I) the trial Court had refused to admit the evidence though it ought to have been admitted; (II) the evidence was not available to the party despite exercise of due diligence; and (III) the appellate Court required the additional evidence so as to enable it to pronounce better judgment or for any other substantial cause of like nature.
34. The first document which the appellant wants to produce is the certified copy of the registration extract of the lease deed, dated 22-9-1959. The case of the appellant is not covered under the aforementioned first two contingencies. This document is not a public document. Certified copy of the registered lease deed requires oral evidence to prove it. No foundation has been laid in the application for adducing it as secondary evidence. Actually, no prayer has been made to adduce oral evidence. For the reasons aforesaid, we are not inclined to admit the certified copy of the registered lease deed on record. The copy of the judgment and the decree passed in O.S. 112/58 are at Ex.B-11 and Ex.B-12. Extract of Civil Suit Register in O.S. 112/58 is at Ex.B-13. On perusal of these documents, it appears that the schedule of suit property has not been annexed with copy of the judgment, Ex.B-11 and copy of the decree Ex.B-12, whereas copy of the extract of civil suit register Ex.B-13 appears to be incomplete. In order to clarify the suit property, it appears necessary to take the certified photostat copy of the decree with schedule annexed with it and, therefore, this document is taken on record and is marked as Ex.C-1. This application is thus partly allowed.
35. It is lastly urged on behalf of the appellant that immediately after the death of Pattabhiramayya - elder brother of K. Krishnaiah; the legatee K. Krishnaiah had taken possession of the suit land. He had leased out 315 Sq.ft. (equivalent to 45 Sq. Yds.) of land to one Venkata Subbaiah and the remaining land measuring 3517 Sq.ft. to G. Tatayya and after obtaining possession from Venkata Subbaiah, he had given on lease the entire land measuring 3832 Sq. ft. to late G. Tatayya against whom he has obtained a decree for ejectment in O.S. 312/68 which is at Ex.B-21. He had also obtained a decree for arrears of rent for the same land against him in O.S. 910/71 (new No. O.S. 14/73), a copy of which is at Ex.B-31. The predecessor of the 1st respondent Smt. Lakshmi Narasamma had never been in possession of that land right from the year 1955 till date and in the alternative upto 12-12-1975 when she had withdrawn her suit O.S. No. 136/70. The vendor of the appellant K. Krishnaiah was in possession of the suit land through his lessees hostile to Smt. Lakshmi Narasamma and, therefore, had perfected his title by adverse possession.
36. On the other hand, relying on the case of Mohd. Ibrahim v. Secretary to the Government of India, Ministry of Defence, New Delhi and Ors., (D.B.), it has been contended on behalf of the 1st respondent that in the absence of specific plea regarding adverse possession in the written statement, no amount of evidence can be let in or can be looked into and, therefore, the appellant is not entitled to urge that his predecessor in title had acquired title by adverse possession.
37. In the case of Mohd. Ibrahim (supra), it is held that, the requirement that specific plea regarding adverse possession is to be raised and evidence to be let in is a requirement in law since all possessions are not adverse possessions.
"Adverse possession", to satisfy the tests, must be with hostile animus against the real owner. The three ingredients to be satisfied are, as is commonly known on the nec vi, nec clam and nec precario. A mere permissive possession is not adverse. All the ingredients and particularly possession with hostile animus are questions of fact for which evidence has to be led with opportunity to the parties to cross-examine the witnesses. It is further held in this case that, in normal cases, an appellate Court will not allow the plea of adverse possession to be raised before it. There are no doubt some cases in which the plea will be allowed, because, in some form the allegation upon which it can . be raised was made at the time and the facts necessary to prove the plea were brought before the Court and proved.
38. It is matter of record that in O.S. 17/79, the appellant has alleged in para 4 of the written statement that, Smt. Lakshmi Narasamma in collusion with G. Tatayya who was the lessee of K. Krishnaiah succeeded in obtaining the possession of the suit land, but only after her rights to possession having been extinguished and, therefore, her possession was illegal. Again in O.S. No. 61/79, the appellant has pleaded that G. Tatayya was the tenant of the first defendant, that is K. Krishnaiah, and his lessee had continued to be in possession till 01-6-1970 and Smt. Lakshmi Narasamma did not take any step to recover possession of the suit property and, therefore, her rights were extinguished. On perusal of the judgment of the learned Single Judge, it appears that the plea of adverse possession had been taken by the appellant before the trial Court as also before the learned Single Judge during the arguments in the first appeal and the learned Single Judge has also discussed the evidence which has been adduced by the appellant. For the reasons aforesaid, it cannot be said that, the appellant had not raised the plea of adverse possession and had not adduced any evidence in support of his pleadings. On perusal of the copy of the plaint in O.P. No. 18/61, which is at Ex.B-3, it is revealed that, Smt. Lakshmi Narasamma had filed the suit for declaration of title and possession of the suit property against K. Krishnaiah and G. Tatayya and one another and had pleaded that ever since the death of her husband in 1954, the defendants therein have been in wrongful possession of the suit land and had sought the relief, inter alia, of possession of the suit land. Again, she had filed O.S. 136/70 against K. Krishnaiah and one another, a copy of which is at Ex.B-23, in which she had pleaded that her husband had died on 29-8-1955 and in para 10, she had pleaded that she could secure the vacant possession of the suit property on 1-6-1970. As noted above, this suit was dismissed as withdrawn on 12-12-1975.
39. In the case of Basant Singh v. Janki Singh and Ors., it is held that Section 17 of the Indian Evidence Act makes no distinction between an admission made by a party in a pleading and other admissions. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive and it is open to the party to show that it is not true.
40. It is noteworthy that, in cross-examination, Smt Lakshmi Narasamma has admitted to have filed O.P. 18/61 against K. Krishnaiah and she has also admitted that the certified copy of the plaint is at Ex.B-3. She has also admitted that, after the death of her husband, she has filed the suit in the Court of the District Munsif, Khammam, in respect of the suit property for declaration of title and possession against K. Krishnaiah, G. Tatayya and one another. She has also admitted that G. Tatayya was the person in possession of the suit land at that time. She had given instructions for writing the plaint and the facts stated in the certified copy of the plaint, Ex.B-3, are correct.
41. From what is discussed above, it is crystal clear that, Smt. Lakshmi Narasamma, on her own showing, was not in possession of the suit land right from the death of her husband, that is from 29-8-1955 at least till 1-6-1970 and the suit land has been in the cultivating possession of G. Tatayya - the lessee of K. Krishnaiah. These facts are supported by the written statement of late G. Tatayya which was filed in O.S. 910/71 (new O.S. No. 14/71), a copy of which is at Ex.B-2. In para 8 of the written statement, he pleaded to have vacated the suit land on 1-4-1970. It is pertinent to note that Smt. Lakshmi Narasamma was also a party to this suit, but she had abandoned her claim by default and decree for arrears of lease money had been passed in favour of K. Krishnaiah and against G. Tatayya for the period from 1-6-1968 to 31-5-1971.
42. On perusal of the lease deed, Ex.B-15, it is revealed that, out of the site of an extent of 3832 Sq.ft. bearing T.S. 61/2 situated in Block No. 3, New Ward No. 7 in Kothapeta Municipality, Guntur, the land measuring 3517 Sq.ft. had been leased out by K. Krishnaiah to G. Tatayya on 12-12-1955. From the schedule, Ex.C-1, annexed with the decree passed in O.S.112/58 in favour of K. Krishnaiah and against Venkata Subbaiah and one another, it is clear that 45 Sq.Yds. (equivalent to 315 Sq.ft.) of land, out of the aforesaid 3832 Sq.ft. of land had been leased out to Venkata Subbaiah by K. Krishnaiah and for the possession of this land, a decree had been passed against him on 6-3-1959 and he obtained possession of 315 Sq.ft. of land on 23-7-1959. The extract of the civil suit register, a copy of which is at Ex.B-13, obviously appears to be incomplete. The aforementioned ambiguity has been removed through the Schedule, Ex.C-1.
43. For the foregoing reasons, we are unable to agree with the finding of the learned Single Judge that possession given to K. Krishnaiah might have been symbolic and how could he execute a registered lease deed, Ex.B-15, for the entire 3832 Sq.ft. of land in favour of G. Tatayya. As discussed above, there is ample evidence on record that late K. Krishnaiah had leased out the suit land in two parts right from the death of his brother and while one lessor namely Venkata Subbaiah remained in possession of 315 Sq.ft. as his lessee upto 23-7-1959 G. Tatayya remained in possession of the suit land till his death and, as noted above, even according to Smt. Lakshmi Narasamma, upto 1-6-1970. There is no gainsaying the fact that late K. Krishnaiah had been in possession of the suit land through his lessees on the strength of the will, Ex.B-10.
44. Surveying a catena of cases, one of us (Lingaraja Rath, J.), in the case of Mohd. Karemuddin Khan (died) and Ors. v. Syed Azam, L.P.A. No. 85/88, dated 6-8-1996 - Reported in , has held that, where possession is through an invalid sale, the vendee, ipso facto, acquires adverse possession from the date of possession itself. That being so, in that case, it was held that, without any further proof, the joint family having been in possession of the properties since 1969 through an invalid sale deed, has become the owner of the properties after the lapse of statutory period. Relying on this judgment, one of us (Lingaraja Rath, J.), speaking for the Bench in the case of Nakkalapu Annapurnamma v. Nakkalapu Narendra Kumar and Ors., 1997 (3) An.W.R. 564 = 1997 (4) ALD 97 (D.B.), reiterated that, since more than half a century, the law is consistent that where possession is through invalid sale, the vendee ipso facto acquires adverse possession from the date of possession itself and in such case, such person becomes the owner after the lapse of the statutory period.
45. For the foregoing reasons, even on the strength of the alleged invalid "will", Ex.B-10, late K. Krishnaiah was in possession of the suit property through his lessees for a continuous period of more than 12 years and, therefore, we have no hesitation in holding that he has ipso facto acquired title by adverse possession and, therefore, in spite of the interim injunction order from the date of institution of the suit in O.S. 136/70 upto its dismissal on 12-12-1975, the title acquired by late K. Krishnaiah remained unaffected.
46. In view of our above findings, both the suits O.S. 17/79 and O.S. 61/79 are liable to be dismissed, while E.A. 756/79 deserves to be allowed.
47. In result, all the three appeals are allowed. The judgment and the decree by the trial Court as well as the learned Single Judge are set aside. The suit O.S. 17/79 and O.S. 61/79 are dismissed and the application E.A. 756/79 is allowed and as a sequel to that, the order passed in E.A. 197/79 Under Section 47 of the Code of Civil Procedure in E.P. 61/79 and the order passed in E.P. 61/79 become inoperative and E.P. 61/79 is revived and the executing Court is directed to execute the decree in E.P. 61/79. However, under the circumstances of the case, we leave the parties to bear their own costs.