ORDER
P.S. Narayana, J.
1. The present lis is between A. Veeranarayana and the heirs of Bramhaiah in relation to plaint schedule property. The said A. Veeranarayana is the appellant in both the appeals. The said party is the 3rd defendant in O.S. No. 2085/88 as originally instituted which was renumbered as O.S. No. 219/95 and the plaintiff in O.S.No. 955/82 as originally instituted, renumbered as O.S. No. 493/85 on the file of Additional Special Judge for SPE and ACB cases-cum-V Chief Judge, City Civil Court, Hyderabad. Common evidence was recorded and A. Veeranarayana was examined as P.W.I and K. Sivaram, one of the sons of Brahmaiah, 2nd defendant in O.S.No. 493/ 85, was examined as DW-1. Exs.A-1 to A-75 and Exs.B-1 to B-47 were marked. The suit O.S.No. 493/85 was instituted by the said A. Veeranarayana, hereinafter referred to as plaintiff against his sister and her sons, heirs of Bramhaiah, for declaration of title, recovery of possession etc., relating to H.No. 7-1-282/13, Scientific colony, Balkampet, Hyderabad. The said suit was dismissed on 13-3-1987 on the simple ground of bar of res judicata and the matter was carried by way of Appeal C.C.C.A.No. 123/ 87 wherein the learned Judge of this Court made an order of remand and the relevant portion of the same reads as hereunder :
As I have stated above, the lower Court held that the decision in the earlier suit that the plaintiff has no title to the property operates as res judiciata, but the lower Court has not taken into consideration the sale deed on which the plaintiff is relying upon subsequent to the decision in the suits decided by the XI Assistant Judge nor did it gave any finding on that aspect. In that view of the matter, I feel that the lower Court did not properly consider the issue regarding res judicata, especially bearing in mind whether the issue was substantially in issue in the earlier suit and so the finding of the lower Court on the issue regarding res judicata is set aside.
The lower Court is therefore directed to dispose of the suit on all the issues including the issue regarding res judicata.
Since the heirs of late Brahmaiah have filed O.S.No. 2085 of 1988 in the Court of the V Additional Judge regarding the same subject-matter of the suit which is covered by the same sale deed, that suit is transferred to the Court of the Additional Chief Judge, City Civil Court, Hyderabad to be tried along with O.S.No. 493 of 1985. Since the parties have been litigating for the past 21 years, it is high time that the Court decides the matter finally and therefore the learned Additional Chief Judge, Hyderabad is directed to dispose of both the suits expeditiously preferably within a period of six months from today. The parties are also directed to co-operate in the expeditious disposal of the suits.
The appeal is allowed and the matter is remanded to the Lower Court for fresh disposal in the light of the directions given above. The parties are directed to bear their respective costs.
2. The written statement in O.S. No. 493/85 virtually is the plaint in O.S. No. 219/95 aforesaid. Likewise, the plaint in O.S. No. 493/85 is the written statement in O.S. No. 219/95. The 1st and the 2nd defendants in O.S. No. 219/95 are the Deputy Registrar, office of Co-operative Society (Housing), Chirag Ali Lane, Hyderabad and the Secretary, Scientific Engineering Workers Industrial Co-operative Housing Society, Scientific Colony, premises No. 7-1-2829, Balkampet, Hyderabad. The said suit O.S. No. 219/95 was filed for the relief of specific performance directing defendants 1 and 2 to execute a sale deed and further the sale deed dated 25-3-1982 executed by 2nd defendant therein in favour of 3rd defendant also had been questioned. In view of the remand, inasmuch as the subject-matter of both the suits being one and the same, the evidence of the appellant/ plaintiff in O.S.No. 493/85 was recorded as PW-1 and that of the 2nd defendant in the said suit was recorded as DW-1 and Exs.A-1 to A-75 and Exs.B-1 to B-47 were marked as aforesaid and on appreciation of the evidence available on record the learned Judge arrived at a conclusion that the plaintiff is not entitled to the reliefs prayed for in O.S. No. 493/85 and the defendants in the said suit, the plaintiffs in O.S. No. 219/95, are entitled to the relief prayed for and accordingly dismissed O.S. No. 493/85 and decreed O.S. No. 219/95 directing the 2nd defendant therein, the Society, to execute registered sale deed in favour of the defendants in O.S. No. 493/85, hereinafter referred to as defendants, the plaintiffs in O.S. No. 219/95, within specified time. Aggrieved by the same, the respective appeals are preferred.
3. Sri Jagannadha Sharma, the learned Counsel representing the appellant in detail had explained the stand taken by the appellant/plaintiff and would contend that in the light of Exs.A-1 to A-61 it had been established that the amounts were paid by the plaintiff and the learned Counsel also placed heavy reliance on Ex.A-62 and made elaborate submissions on the strength of Ex.A-62 stating that the said document was not the subject-matter of the prior litigations and the doctrine of res judicata and the applicability thereof may have to be appreciated in this background. The learned Counsel also further had commented that though the name of A. Veeranarayana is shown as though he is one of the executants in the sale deed Ex.A-62 in the beginning he had not signed the document and hence the findings recorded in this regard to the effect that the said document is invalid on that ground cannot be sustained. The learned Counsel also made elaborate submissions in relation to Exs.B-7 and B-17 and would comment that these litigations were fought at a time when Ex.A-62 was not in existence. The learned Counsel also would point out that in the light of the order of remand made in C.C.C.A.No. 123/87 the findings if any recorded in Exs.B-7 and B-17 would not operate as res judicata and hence these matters to be independently decided. The learned Counsel also would explain that in the light of the pleadings in O.S.No. 2761/76 and 2545/77 it is clear that those litigations were fought on the limited ground of tenancy though incidentally the title had been gone into and at any rate in the light of the subsequent event Ex.A-62, the said findings would not operate as res judicata. The learned Counsel also would maintain that even the directions if any issued in O.S.No. 1039/82 had been issued in the backdrop of the circumstances as on the said date and the said findings are of no consequence in the light of the subsequent events. The learned Counsel made stress on the words “…heard and finally decided…” occurring in Section 11 of the Code of Civil Procedure and would contend that the prior findings would not operate as res judicata in the facts and circumstances of the case. The learned Counsel had taken this Court through oral and documentary evidence and the findings recorded by the trial Court and would comment that in the facts and circumstances of the case the said findings cannot be sustained. The learned Counsel would conclude that at any rate the suit filed by the defendants, heirs of Bramhaiah is not within limitation and hence the relief could not have been granted.
4. Per contra, Sri Vilas V. Afzulpurkar, the learned Counsel representing the defendants, contesting respondents, heirs of Bramhaiah, would contend that there are several admissions made by P.W.I relating to his official position in the society. The learned Counsel also had taken this Court through the findings which had been recorded in Exs.B-7 and B-17 and would contend that almost all the documents except some subsequent documents had been relied upon in O.S. No. 2761/76 and 2545/77 and further the oral and documentary evidence of PW-1 to PW-3 and DW-1 to DW-3 had been recorded and positive findings had been recorded relating to the question of title and hence the said findings do operate as res judicata. The learned Counsel also would submit that the order of remand also may have to be interpreted in the context and the remand was made with the fond hope that apart from the question of res judicata all the other questions also would be decided and that does not mean that finally a finding had been recorded by the appellate Court that the said findings in the prior judicial proceedings would not operate as res judicata at all. The learned Counsel also pointed out to the documents available on record Ex.B series and had explained the date of death of Bramhaiah and the series of events subsequent thereto and the improbabilities in the version of the plaintiff and the probabilities which support the version of the defendants. The learned Counsel also explained Exs.B-18 to B-36, Exs.B-37 and B-38 and also would contend that even several of the receipt which had been relied upon as Ex.A series would clearly reflect the payments made by Bramhaiah since receipts had been issued in the name of Bramhaiah only. The learned Counsel also pointed out that though there may be some infirmity in the findings recorded in relation to Ex.A-62 this would not alter the situation because of the mere fact that Veeranarayana had not signed the document but there cannot be any controversy that his name was shown at the commencement of the document Ex.A-62. The learned Counsel would conclude that at any rate having been unsuccessful in the prior litigations, the plaintiff is continuing these litigations and these are just frivolous and vexatious litigations and hence the appeals are to be dismissed.
5. Heard the Counsel on record and perused the oral and documentary evidence and also the findings recorded by the trial Court.
6. Though the reliefs prayed for in both the suits are different, in substance the Points for consideration which would arise in both the appeals being common, both the matters are being disposed of by this Common Judgment.
7. The following Points emerge for consideration in this appeal :
1. Whether the plaintiff/appellant is entitled to the reliefs prayed for in O.S.No. 955/82 (= O.S.No. 493/85) ?
2. Whether the aforesaid suit and the reliefs prayed for in the said suit can be said to be barred by the doctrine of res judicata ?
3. Whether the contesting respondents/ heirs of Bramhaiah are entitled to the relief of specific performance in O.S. No. 2085/85, renumbered as O.S. No. 219/95 ?
4. Whether the sale deed dated 25-3-1982 can be said to be an invalid transaction in the facts and circumstances of the case ?
5. Whether the findings recorded by this Court suffer from any legal infirmities ?
6. If so, to what relief the parties are entitled to ?
In view of the common evidence recorded and also in view of the fact that the discussion relating to the Points for consideration in both these appeals would overlap, for the purpose of convenience, Points 1 to 5 are being discussed together.
8. Points 1 to 5 :-As already referred to supra, virtually the plaint and the written statement in one suit appear to be the written statement and the plaint in the other suit. The relationship between the parties is not in serious controversy. For the purpose of convenience the respective pleadings in O.S. No. 493/85 may be glanced at and as already referred to supra the same respective stands had been taken by the contesting parties in the other suit too.
9. It was pleaded in the plaint as hereunder :
Plot No. 4 in Scientific Colony of Scientific Engineering Workers Industrial Co-operative Housing Society Limited, Balkampet, Hyderabad was allotted to late Brahmaiah who is the husband of the 1st defendant. The plaintiff who is the brother of the 1st defendant advanced amounts to Brahmaiah from time to time for the purchase of the said plot and construction of the house thereon. Later Brahmaiah acknowledged the receipt of amounts paid by the plaintiff. The house bearing Municipal No. 7-1-282/13 was constructed on the said plot. Late Brahmaiah executed an agreement dated 23-8-1973 agreeing to pay rent to the plaintiff for occupation of the said house. Later Brahmaiah nominated the plaintiff to get the house mutated in the Society records in his favour after his death. Basing on that the Society was authorised by late Brahmaiah to mutate the house in favour of the plaintiff as his successor in interest. Late Brahmaiah did so keeping in view of the fact that the plaintiff invested the amounts for the purchase of the plot and construction of house thereon. After occupation of a portion of the said house in or about March 1969, late Brahmaiah executed an agreement dated 15-4-1969, agreeing to pay reasonable rent and undertaking not to putforth any claim in respect of the house until he pays a sum of Rs. 12,075/-. After the demise of Brahmaiah on 20-12-1973 the defendants claimed ownership over the suit house and they also forcibly occupied another portion of the house vacated by a tenant. It was further pleaded that the plaintiff paid the entire monies to the Society in the name of late Brahmaiah and obtained receipts from the Society. As Brahmaiah committed default in payment of rent and raised dispute, the plaintiff filed O.S.No. 2761/75 in the Court of XI Asst. Judge, City Civil Court, Secunderabad seeking delivery of the house by treating Brahmmam as his tenant. The plaintiff also filed another suit O.S. No. 2545/77 in the same Court for recovery of arrears of rent. As both the suits were resulted in dismissal, the plaintiff filed the instant suit stating that after the death of Brahmammam in the year 1973 the Society mutated the suit house in his favour on the basis of the nomination given by Brahmaiah and also executed the registered sale deed dated 25-3-1982 (Ex.A-62) conveying the suit house for a sum of Rs. 30,000/- by virtue of G.O. Ms. No. 592, dated 22-8-1981. As the plaintiff has thus became absolute and exclusive owner of the suit house, he is entitled for declaration of title and recovery of possession. As the defendants are in illegal occupation of the suit house without payment of rent, they are liable to pay compensation to the plaintiff. The plaintiff had limited his claim for Rs. 5,400/- and Rs. 150/- p.m., as compensation fro 16-6-1979 to 15-6-1982 and Rs. 150/- per month from the date of suit to the date of the delivery of possession of the suit house to the plaintiff.
10. The heirs of Brahmaiah, defendants, filed written statement as hereunder :
Late Brahmaiah purchased plot No. 4 and constructed the suit house thereon with his own funds. The plaintiff being the younger brother of the 1st defendant lent some money to Brahmaiah, but it was repaid by Brahmaiah. Late Brahmaiah paid the instalments to the Society through the plaintiff who was working as treasurer of the Society. The claim of the plaintiff that he paid instalments payable by late Brahmaiah to the Society is utterly false. The plea of the plaintiff that Brahmaiah executed an Agreement defendant 23-8-1973 in his favour is also false. The plaintiff filed O.S.No. 2761/76 on the basis of alleged agreement and it was dismissed holding that the agreement is false. Therefore the judgment in the said suit operates as res judicata. Therefore the judgment in the said suit operates as res judicata in the present case. It was also pleaded that the plea of the plaintiff that he was nominated by late Brahmaiah as his heir in respect of the suit house had been denied as utterly false because Brahmaiah is having his wife and three children i.e., defendants 1 to 4 as his legal heirs. By taking advantage of his position as Treasurer and Secretary of the Society, the plaintiff tampered the records of the Society and he might have created false nomination in his favour. After the death of late Brahmaiah the defendants had been in continuous possession of the entire suit house. It was also pleaded that late Brahmaiah neither paid any rent to the plaintiff nor executed the alleged agreements dated 23-8-1973 and 15-4-1969. After O.S.No. 2761/76 and O.S.No. 2545/77 were dismissed the plaintiff might have tampered the records of the Society and got executed registered sale deed in his favour. It is further contended in the written statement that the defendants filed a suit against the Society to declare them as the owners and possessors of the suit house and the said suit which was decreed ex parte has become final. The plaintiff took a plea in the rent suit filed by him in the Small Causes Court that he purchased the suit house in the name of Brahmaiah benami but he could not establish the same. As the plaintiff is neither the owner nor possessor of the suit property he is not entitled to claim any compensation. Further the common judgment in O.S.Nos. 2761/76 and 2545/77 operates as res judicata.
11. On the strength of the pleadings in O.S.No. 493/85 the following Issues and Additional Issue had been settled :
Issues in O.S.No. 493/85 :
1. Whether the plaintiff is entitled for declaration that he is the sole and absolute owner of the suit house and for possession ?
2. Whether the plaintiff is entitled for compensation of Rs. 5,400/- and for future mesne profits at the rate of Rs. 150/- p.m., from the date of suit till the date of realisation ?
Additional Issue in O.S.No. 493/85 :
Whether the suit is barred by res judicata in view of the judgment in O.S.No. 2545/77 and O.S.No. 2761/76 on the file of the Court of XI Asst. Judge, City Civil Court, Secunderabad ?
Likewise in O.S.No. 219/95, the following issues were settled :
Issues in O.S.No. 219/95 :
1. Whether the sale deed dated 25-3-1982 executed by defendant No. 2 in favour of defendant No. 3 has to be declared null and void as prayed for?
2. Whether the plaintiffs are entitled for specific performance ?
3. Whether the suit is time barred ?
4. Whether Court fee is insufficient ?
5. Whether the Court has no jurisdiction to try this suit ?
12. A. Veeranarayana had examined himself as PW-1 and Exs.A-1 to A-75 were marked. The 2nd defendant was examined as DW-1 and Exs.B-1 to B-47 were marked. The 1st defendant, the widow of Brahmaiah, is none other than the sister of Veeranarayana and defendants 2 to 4 are the sons of the said Brahmaiah, the sister’s children of Veeranarayana. It is also not in serious controversy that the said Veeranarayana, the plaintiff, and late Brahmaiah were employees of Scientific Engineering Factory and were members of Scientific Engineering Co-operative Housing Society, Balkampet. It is also not in serious controversy that the said Veeranarayana acted as Treasurer and Secretary of the said Society from time to time. It is also not in controversy that Plot No. 4 was allotted in favour of the plaintiff by the Society and they had constructed house and the said house is 7-1-282/13 and the house of the plaintiff is 7-1-282/22. Till 1977-78, the plaint schedule properties stood in the name of Brahmaiah and the property tax also was paid in his name. The specific stand taken is that though plot No. 4 was allotted in favour of late Brahmaiah, the plaintiff had advanced nearly Rs. 20,000/- from time to time to Brahmaiah for construction of the house. The specific stand taken by the plaintiff is that he had contributed the funds for the purpose of allotment of plot and the construction thereof and hence he is the owner of the property. Further a stand had been taken that the said Brahmaiah executed an agreement wherein he had admitted the contribution of funds by the plaintiff. It is also the specific stand that the said Bramhaiah occupied portion of the suit house and executed an agreement on 15-4-1969 agreeing to pay rent. Further a specific stand was taken that the said Brahmaiah nominated him as successor and basing on the same Ex.A-62 sale deed dated 25-3-1983 was executed by the society in his favour.
13. As already specified supra, the evidence of P.W.I and D.W.I is available on record. P.W.I deposed in detail in relation to the receipts Exs.A-1 to A-61, sale deed dated 25-3-1982 Ex.A-62, plan attached to the sale deed Ex.A-63, the common judgment in O.S.No. 2761/75 and 2547/77 Ex.A-64, the receipt Ex.A-65, property tax receipts and house tax receipts, Exs.A-66 to A-69, demand notice Ex.A-70, share certificate Ex.A-71, letter of the Commissioner of Labour Ex.A-72 and Ex.A-73, Ex.A-74, G.O.Ms.No. 592 and sale deed Ex.A-75 for release of mortgage debt. Much comment had been made in relation to Exs.A-72, A-73, A-74 and submissions at length were made that in the light of this G.O. issued and also in the light of the sale deed executed by the society in favour of Veeranarayana Ex.A-62, the title may have to be declared inasmuch as this is a subsequent event and the said sale deed was not in existence as on the date of disposal of the prior litigations. D.W.I deposed in detail all the facts inclusive of the prior litigations. Ex.B-1 is a certified copy in Small Cause Suit No. 400/75, Exs.B-2 and B-3 are the plaint and written statement in O.S.No. 2761/76, Exs.B-4 and B-5 are the plaint in O.S.No. 2545/77 and written statement in the said suit, Exs.B-6 and B-7 are the certified copies of the decree and judgment in O.S.No. 1039/82, Ex.B-8 is the property tax bill, Ex.B-9 is the house tax receipt, Ex.B-10 is a copy of the letter by the Commissioner of Labour to the Society, Ex.B-11 Xerox copy of the letter dated 15-6-1966, Ex.B-12 certified copy of the decree in A.S.No. 96/89, Ex.B-13 certified copy of the judgment in A.S.No. 96/89, Ex.B14 certified copy of the order in I.A.No. 2202/ 89 in C.M.A.S.R.No. l2189/89, Ex.B-15 certified copy of the plaint in O.S.No. 1137/ 78, Ex.B-16 certified copy of the Judgment in O.S.No. 955/85, Ex.B-17 certified copy of the judgment in O.S. Nos. 2761/76 and 2545/ 77, Exs.B-18 to B-37 house tax receipts, Ex.B-37(A) and Ex.B-38 water supply tax receipts, Ex.B-39 letter issued by M.C.H., Ex.B-40 office copy of the notice issued by defendants to the Deputy Registrar of Co-op. Society (Housing), Hyderabad, Ex.B-41 returned postal cover, Ex.B-42 office copy of the notice, Ex.B-43 notice issued by the Advocate, Ex.B-44 office copy of the notice, Ex.B-45 postal acknowledgment, Ex.B-46 Membership application and allotment letter Ex.B-47.
14. The oral evidence let in by the respective parties are just repeating the prior proceedings and also certain other factual details. Exs.A-1 to A-61 had been relied upon by the plaintiff to show relating to the investment of funds. It is no doubt true that Exs.A-1 to A-61 would go to show that the plaintiff paid certain amounts to the society on behalf of Brahmaiah. It is not in serious dispute that Brahmaiah died in the month of December, 1973 and the sale deed Ex.A-62 was executed on 25-3-1982. It appears in the meantime there had been certain litigations. Now coming to the other receipts, Exs.A-17 to A-54 relate to 1966 to 1972 and these receipts would go to show that Brahmaiah made the payments. Ex.A-55 to A-61 would go to show that the plaintiff paid the money to the society on behalf of Brahmaiah. The relationship of the parties, the regulations governing the society and also the averments made may have to be appreciated in the backdrop of the facts and circumstances of the present case. The society addressed a letter Ex.B-11 wherein the Works Manager was requested to make a deduction of Rs. 33/- per month from the salary of late Brahmaiah and no doubt certain other members of the society as well. Further the society also addressed a letter dated 25-10-1965 Ex.B-46, calling upon him to pay membership fee. Ex.B-55 is the receipt. Ex.B-47 is yet another letter calling upon him to pay the instalments. Apart from these documents, Exs.B-18 to B-36 would go to show that property tax was being paid by Brahmaiah. The other documents which had been spoken in detail by DW-1 also would go to show that the findings recorded by the learned Judge in relation to Exs.A-72, A-73, A-74 and A-62 cannot be found fault in any way. It is not doubt true that when the prior litigations were fought by the parties, Ex.A-62 was not in existence, but the question of title had been specifically gone into. Be that as it may, the heirs of Brahmaiah filed O.S.No. 1039/82 praying for the relief of mandatory injunction as against the Municipal Corporation of Hyderabad and also the plaintiff herein praying for a specific direction to delete the name of Veeranarayana from Property Register in relation to the suit house and to incorporate their names. The said suit was decreed and the decree in the said suit is marked as Ex.B-6 and the judgment is marked as Ex.B-37. In the said suit the following Issues were settled :
1. Whether the suit is not maintainable for non-issuance of notice under Section 685 of HMC Act?
2. Whether the first defendant is not a proper or necessary party to the suit?
3. Whether this Court has no pecuniary jurisdiction to try the suit ?
4. Whether the plaintiffs are entitled to mandatory injunction sought against defendants 1 and 2 ?
5. To what relief ?
While answering Issue No. 4 in the said judgment Ex.B-7 it was observed :
The case of the plaintiff is that Plot No. 4 situated at Balkampet, Hyderabad upon which the suit property was constructed by the society was allotted to in the name of late K. Brahmaiah. This fact is not denied by the defendant No. 2. Brahmaiah died on 20-12-1973, the name of late K. Brahmaiah continued in the Assessment register till 1978. This fact is also not disputed by any of the parties to the suit. According to defendant No. 2 he has paid all the instalments for the suit property and the said Brahmaiah has nominated the defendant No. 2 in respect of the suit property. The sale deed was executed in favour of defendant No. 2 in 1982. Exs.B-1 and B-2 are the copies of sale deed and map attached to Ex.B-1 dated 25-3-1982.
It was also further observed in the said Judgment:
On the other hand the plaintiffs have filed the tax receipts from their possession to show that the tax was collected by MCH from them. Though name of late K. Brahmaiah is not found when the defendant No. 2 has become owner of the suit property in 1982. Exs.B-1 and B-2 does not show as to how the name of the defendant No. 2 was entered in respect of the suit property in the assessment register in 1979 onwards when the 2nd defendant was became owner on 25-3-1982. There is no evidence on behalf of MCH or on behalf of defendant No. 2 to specify or illustrate these points. Earlier the defendant No. 2 has merely filed the suits for recovery of possession and arrears of rent against the plaintiffs herein in respect of the suit property in another Court. The certified copies of the judgments are marked as Ex.A-17 to A-20.
Further, it was observed in the said judgment:
In these circumstances the action taken by the defendant No. l to enter the name of defendant No. 2 in respect of suit property in favour of D2 is not legal. As the defendant No. 2 has become owner of the property only in 1982 vide Ex.B-1 and Ex.B.2 dated 25-3-1982 Defendants 1 and 2 have not shown as to on what basis the name of late K. Brahmaiah was discontinued and the name of defendant No. 2 was added in 1979. The action of defendant No. 1 was high handed and not proper and without any basis. Therefore the name of defendant No. 2 is liable to be struck down from the Assessment register in respect of suit property as prayed for by the plaintiff. This issue is held in favour of plaintiff and against the defendant.
Further, the MCH had been directed to consider to change and remove the name of the defendant No. 2 without costs. In the said suit, P.W.1 K. Bhadramma, P.W.2 K. Siddi Ram, P.W.3 M.A. Raheem were examined and the plaintiff herein A. Veeranarayana was examined as D.W.I. Exs.A-1 to A-31 and Exs.B-1 and B-2 were marked. The matter was carried by way of A.S.No. 96/89 on the file of Additional Chief Judge and the same was dismissed no doubt with an observation that the contesting defendants to establish their rights to the suit property. In relation to yet another stand taken that by virtue of the agreement dated 23-8-1973 the heirs of Brahmaiah cannot dispute the ownership of the plaintiff. It is pertinent to note that on the strength of the same the earlier suit O.S. No. 2545/77 for recovery of arrears of rent had been filed on the ground of tenancy and the said A. Veeranarayana also filed yet another suit O.S.No. 2761/76 for recovery of possession and both were dismissed by a common judgment dated 25-9-1981 marked as Ex.B-17. In the said suits, the following issues were settled :
Issues in O.S.No. 2761/76 :
1. Whether late Brahmaiah executed agreement dated 23-8-1973 agreeing to pay rents to the plaintiff and whether it binds the defendant ?
2. Whether the defendant is the tenant of the plaintiff?
3. Whether the notice of termination of tenancy is valid and legal ?
4. Whether the plaintiff is entitled for possession of the suit premises ?
5. To what relief ?
Issues in O.S.No. 2545/77 :
1. Whether plaintiff is the real owner of the suit house ?
2. Whether the defendant is liable to pay rents as claimed ?
3. Whether the plaintiff is entitled for the suit amount from the defendant?
4. To what relief ?
The evidence of P.W.I A. Veeranarayana and P.W.2 and P.W.3, D.W.I Siddaram, DW-2 and DW-3 had been recorded. Exs.A-1 to A-12, X-l and X-2, B-l to B-47 were marked and ultimately the suits were dismissed with costs. Thus the ownership relating to the suit property was in issue in between the parties in the prior litigation too. It is true that the said common judgment was delivered on 25-9-1981. Submissions at length were made on the aspect that inasmuch as Ex.A-62 was executed subsequent thereto, on the strength of Ex.A-62 title may have to be declared and the prior findings would not operate as res judicata. Yet another submission was made that in the light of the order of remand made, the question of res judicata needs no serious consideration at the hands of this Court and on the strength of Ex.A-62, the title may have to be declared. On a careful scrutiny of the material available on record the said contention is liable to be rejected for the reason that almost all the documents in which reliance is being placed had been putforth, there was serious contest between the parties at one stage relating to the mutation of M.C.H. records and also the litigations referred to supra wherein the relief of recovery of possession and the recovery of rents had been prayed for in the suits aforesaid which resulted in dismissal. On a careful scrutiny of Exs.B-10, B-11 and also Exs.B-39, B-40, B-42, B-43, B-44 and also Exs.B-46 and B-47, there cannot be any doubt whatsoever that the question of ownership and title relating to the plaint schedule property cannot be permitted to be reagitated again. Reliance also was placed on a decision of the Apex Court in Aanaimuthu Thevar (Dead) by L.Rs. v. Alagammal and Ors. 2005 (4) ALT 51 (SC). Even if the order of remand is read carefully in letter and spirit, this Court is of the considered opinion that this could not come in the way in holding that the prior findings recorded on the self-same issues would operate as res judicata and even otherwise there is other ample material available on record which would go to show that Ex.A-62 was brought into existence under peculiar circumstances by virtue of which A. Veeranarayana cannot claim title to the property. It is true that there is some discrepancy relating to the findings in relation to Ex.A-62 and specifically it had been pointed out that though the name of A. Veeranarayana was shown at the commencement of the document, in fact he was not the executant. The said stand appears to be the correct stand, but however this would not alter the situation in any way in the light of the voluminous evidence available on record in the context of the conduct of the parties and also the prior litigations and the clear findings which had been recorded in the prior litigations. It is needless to say that the heirs of Brahmaiah had been fighting the litigation and in view of the prior litigation and the result thereof and they brought the suit praying for a direction to the Society to execute the document and on this question also findings in detail had been recorded by the learned Judge which need not be disturbed especially in the light of the fact that the plaintiff herein A. Veeranarayana had been unsuccessful in the prior litigations on the question of title and the mere existence of Ex. A-62 at present would not improve his case any further. Accordingly the said findings recorded by the learned Judge are hereby confirmed.
15. Point No. 6 : In the light of the findings recorded supra, the appeals are devoid of merit and accordingly the appeals shall stand dismissed, with costs.