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Judgment
P.S. Narayana, J.—The unsuccessful defendants in O.S. No. 124/87 on the file of Subordinate Judge, Gudiwada had preferred this appeal. The 2nd plaintiff who was impleaded as legal representative of the 1st plaintiff by virtue of the orders in LA. No. 870/91 in O.S. No. 124/87 is the respondent. The first appellant herein filed yet another suit O.S.No. 177/84 as against the defendants shown in the said suit and both the suits were tried together and a common judgment was made by the learned Subordinate Judge, Gudiwada on 24-3-1995.
It is not in controversy that on the respective pleadings of the parties, common Issues were settled and common judgment was delivered in both the suits. It is also not in serious controversy that the judgment and decree in O.S. No.,177/84 had attained finality since the same had not been questioned. But, however, the judgment and decree in O.S. No. 124/87 alone had been questioned and the present appeal had been preferred.
Sri Ramakrishna, the learned Counsel representing Sri Prabhakar Rao, the Counsel for appellants, would maintain that despite the fact that no appeal had been preferred as against the judgment and decree made in O.S.No. 177/84, the findings recorded in O.S. No. 124/87 can be independently questioned. The learned Counsel had taken this Court through the respective pleadings of the parties and also the Issues settled and would maintain that in the light of the evidence available on record, P.Ws. 1 to 8 and D.Ws. 1 to 8, and also Ex.A.1 to Ex.A.6 and Exs.B.1 to Ex.B.3, the findings cannot be sustained.
Per contra, Sri CCS. Sastry, the learned Counsel representing respondent -2nd plaintiff would maintain that inasmuch as common judgment was delivered and common Issues were settled and common findings had been recorded, ultimately decreeing the suit O.S.No. 124/87 and dismissing the suit O.S.No. 177/84 unless the findings recorded in O.S.No. 177/84 and also the decree are questioned, the present appeal has no legs to stand.
Heard both the Counsel and perused the oral and documentary evidence available on record.
The suit O.S.No. 124/87 was filed for declaration that the plaintiffs is the adopted son of the 1st defendant and the said adoption was recorded by ante-adoption agreement on 23-12-1980 and for partition of plaint ''A'' schedule properties into two equal shares and also for separate possession. For the self-same property yet another suit was filed for recovery of possession and as far as the suit for recovery of possession O.S.No. 124/87 is concerned, the same was decreed and the former suit referred to O.S.No. 177/84 was dismissed. In the light of the rival contentions, the following points arise for consideration in this appeal :-
Whether the judgment and decree in O.S. No. 124/87 also are liable to be confirmed or to be disturbed in the facts and circumstances of the case ?
If so, to what relief the parties would be entitled to ?
Point No. 1 :-The respective pleadings of the parties and the evidence available on record had been appreciated in detail by the learned Judge and findings had been recorded. It is not in serious controversy that common issues were settled, and the issues settled and the Additional Issues settled in this regard are as hereunder:-
Whether the plaintiff is entitled to the declaration that he is the adopted son of the 1st defendant?
Whether there is any ante-adoption agreement as pleaded by the plaintiff?
Whether the plaintiff is entitled to claim partition of the plaint ''A'' schedule properties ?
Whether the 1st defendant agreed to enjoy his half-share in the plaint ''A'' schedule properties during his lifetime only and vested remainder to the plaintiff ?
Whether the plaintiff is entitled to any profits. If so at what rate ?
To what relief ?
Additional Issue :-Where D-10 to D-14 are necessary and proper parties to the suit ?
From a glance of the issues, it is clear that the questions involved in both the suits being the same, both the suit were tried together and common judgment was delivered. In fact, common findings also had been recorded. When that being so, inasmuch as the judgment and decree in O.S.No. 177/84 had attained finality inasmuch as the same had not been questioned at all, the said findings do operate as res judicata and hence, the appellants herein cannot agitate the correctness of the self-same findings which had attained finality by preferring an appeal as against the judgment and decree O.S.No. 124/87 only. The other merits and demerits of the matter need not be gone into. Even otherwise this Court had gone through the findings recorded by the learned Judge and on appreciation of the evidence of P.Ws.1 to P.W.8 and D.Ws. 1 to D.W.8, Exs.A.1 to Ex.A.6 and Exs.B.1 to Ex.B.3, this Court is thoroughly satisfied that the learned Judge recorded correct findings on appreciation of facts. Viewed from any angle, the appeal is devoid of merits.
Point No. 2 :-In the light of the findings recorded above, the appeal being devoid of merit, the same shall stand dismissed. However, in view of the peculiar facts and circumstances, since the judgment and decree in the other suit had not been challenged, the parties to bear their own costs.