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Kempegowda and ors. Vs. Ramegowda and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 518 of 1968
Judge
Reported inAIR1973Kant73; AIR1973Mys73; (1972)2MysLJ268
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 98 and 103
AppellantKempegowda and ors.
RespondentRamegowda and anr.
Appellant AdvocateR.N. Narashimhamurthy, Adv.
Respondent AdvocateN.T. Raghunath, Adv. for ;N. Santhosh Hegde, Adv.
DispositionAppeal dismissed
Excerpt:
.....the evidence of dw.3, merely identifying the handwriting and also the signature of his father, the scribe of the will is of no legal consequence and does not meet the stipulation under section 69. - on the issue whether the plaintiffs were in possession of the suit property within 12 years prior to date of the suit, both the courts below hate held against the appellants. as both the courts below have held that they have failed to do so, the dismissal of the suit by the courts below was justified......1954, on the file of the munsiff. hassan, against respondent 1 (defendant 1) for possession of the suit property. ultimately that suit was decreed in appeal in their favour. when they sought to obtain delivery of possession of the property in ex. case no. 85 of 1961, they were resisted by respondent 2 (defendant 2). their application for removal of obstruction was dismissed in mis. case no. 68 of 1961 on 21-11-1962. thereafter, they brought the present suit under order 21. rule 103. civil p. c.. for a declaration of their title of the suit property and for setting aside the order of the munsiff in mis, case no. 68 of 1961.3. both the courts below have concurrently held that the plaintiffs have proved that they are the owners of the suit property. but. on the issue whether the plaintiffs.....
Judgment:

1. This second appeal has been referred to a Division Bench by Datar. J.. under the proviso to Section 6 of the Mysore High Court Act, 1961, as his Lordship felt that this appeal involves e substantial question of law on which there is no ruling of this Court, while the rulings of the former High Court of Mysore and of other High Courts on that question, are conflicting.

2. The facts which led up to this appeal are briefly these: The appellants-plaintiffs had brought a suit O. S. No. 850 of 1954, on the file of the Munsiff. Hassan, against respondent 1 (defendant 1) for possession of the suit property. Ultimately that suit was decreed in appeal in their favour. When they sought to obtain delivery of possession of the property in Ex. Case No. 85 of 1961, they were resisted by respondent 2 (defendant 2). Their application for removal of obstruction was dismissed in Mis. Case No. 68 of 1961 on 21-11-1962. Thereafter, they brought the present suit under Order 21. Rule 103. Civil P. C.. for a declaration of their title of the suit property and for setting aside the order of the Munsiff in Mis, Case No. 68 of 1961.

3. Both the Courts below have concurrently held that the plaintiffs have proved that they are the owners of the suit property. But. on the issue whether the plaintiffs were in possession of the suit property within 12 years prior to date of the suit, both the Courts below hate held against the appellants. However, the appellants contended that the present suit brought under Order 21, Rule 103, Civil P. C., should be regarded as a continuation of the proceedings in Mis. Case No. 68 of 1961 and that hence the question whether the plaintiffs were in possession of the suit property within 12 years prior to the date of the present suit, would not arise.

4. The short question that arises Tor determination in this appeal is whether a suit under Order 21, Rule 103, Civil P. C., can be regarded as a continuation of the proceedings on an application under Order 21, Rule 98. Civil P. C. for removal of obstruction. It is unnecessary, in our opinion, to refer to decisions of several High Courts as there is a ruling of the Supreme Court on a similar question, namely, whether a suit under Order 21, Rule 63. Civil P. C., can be regarded as a continuation of proceedings on an application under Order 21, Rule 58. Civil P. C.

5. In Sawai Singhai Nirmal Chand v. Union of India. : [1966]1SCR988 the Supreme Court referred to the observations of the Privy Council in Phul Kumari v. Ghanshyam Misra. (1908) ILR 35 Cal 202 (PC) and said thus at page 1071:

'It would, we think, be unreasonable to extend the said observations to the present case and treat them as enunciating a proposition of law that for all purposes, a suit brought under Order 21, Rule 63 is either a continuation of the objection proceedings, or is a form of an appeal against the order passed in them. In our opinion, this extension is not justified, because the Privy Council could not have intended to lay down such a broad proposition .....In this connection, we ought to bear In mind that the scope of the enquiry under Order 21, Rule 58 is very limited and is confined to question of possession as therein indicated while suit brought under Order 21, Rule 63 would be concerned not only with the question of possession, but also with the question of title. Thus, the scope of the suit is very different from and wider than that of the investigation under Order 21, Rule 58'. The above reasoning of the Supreme Court, is equally applicable to a suit brought under Order 21, Rule 103. Civil P. C. The scope of the enquiry on an application brought under Order 21, Rule 98, Civil P. C. is limited to the question of possession, while a suit brought under Order 21, Rule 103, Civil P. C. would be concerned not only with the question of possession but also with the question of title. As a matter of fact, in the present suit the plaintiffs have also prayed for a declaration of their title of the suit property.

6. As the present suit cannot be regarded as a continuation of the proceedings in Mis. Case No. 68 of 1961, the plaintiffs should, in order to succeed in this suit, establish that they were in possession of the suit property within 12 years prior to the date of the suit. As both the Courts below have held that they have failed to do so, the dismissal of the suit by the Courts below was justified.

7. In the result, this appeal fails and is dismissed. In the circumstances of this appeal, we direct the parties to bear their own costs in this appeal.


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