Madhavan Nair, J.
1. The 3rd defendant is the appellant. The plaintiff's suit was substantially for a declaration of the rights of plaintiffs Nos. 1 to 4 to the plaint lands and also for delivery of possession.' During the pendency of the suit plaintiffs Nos. 1 to 4 sold their rights to plaintiffs Nos. 5 and 6. According to the plaintiffs, the suit property originally belonged to the members of the Racheyla family and it was purchased by the father of plaintiffs Nos. 1 to 4 one Hampayya of Idukal on the 3rd of September 1912 under Ex. A. The case of the defendants is that the property belonged to the family of Ponpayya and Mallayya, that they took a sale-deed of it from the Racherla family in the name of Mallayya's father-in-law, Harupyya of Idukal, that it was a mere benami transaction, that Pompayya and Mallayya were always inpossession, that thelandsnowbelong to defendants Nos. 4 and 5 the children of Pompayya and Mallayya, and that the lands are now being held by the 2nd defendant on a lease given to him by the first defendant as the guardian of the 4th defendant. The 3rd defendant supported the plea of defendants Nos. 1 to 4 and also stated that the present suit is not maintainable on account of the order passed in O.S. No. 531 of 1918 on the file of the District Munsif's Court of Bellary.
2. Three questions were argued before me (1) that the purchase by Hampayya of Idukal, the father-in-law of Mallayya was a benami transaction; (2) that defendants Nos. 4 and 5 are owners of the suit lands by adverse possession and (3) that the present suit is not maintainable.
3. The first question, viz., the benami character of the sale to Hampayya, is a question of fact. Both the lower Courts have found that Ex. A evidenced a real transaction and conveyed title to the property to the father of plaintiffs Nos. 1 to 4. This finding is attacked by the learned Advocate-General on behalf of the appellant. Exhibit A, the sale-deed, recites that the plaint lands were orally sold to Hampayya for Rs. 800 in 1903, and put in Hampayya's possession and that as no proper sale-deed was executed till then, Ex. A was executed and delivered to Hampayya. According to the evidence in the case, out of the consideration of Rs. 800, Rs. 400 was paid in cash for the rest a promissory-note, Ex. C, was executed. This was renewed by Exs. D and E, and when the whole amount was paid, the sale-deed Ex. A was executed in favour of Hampayya. In attacking the finding that the sale to Hampapya was not a benami transaction, the learned Advocate-General mainly relies upon Exs. XLV and XLV (a) 1, extracts from the account-books of the Racherla family relating to the transaction of Hampayya's son-in-law, Mallayya, and his elder brother Pompayya. These accounts show that originally the idea was to sell the plaint lands to Pompayya and Mallayya for Rs. 650, that along with this sum the whole amount due to the Racherla people came to Rs. 1,030 in 1903, of this Rs. 230 was-excused and the consideration was fixed at Rs. 800, half of which, viz.,. Rs. 400 was paid by Hampayya and for the remaining sum he gave Ex. C. Both the lower Courts have found that there is really no reason to suppose that the payments were made by Hampayya on behalf of Pompayya and Mallayya. Though originally the idea might have been to sell the property in their favour, as they were not able to find consideration. Mallayya's father-in-law must be taken to have purchased the property for himself. This is the view taken by both of the lower Courts on an examination of the evidence in the case. Pompayya and Mallayya were in possession of the lands for a considerable number of years; but it must be remembered that Mallayya was the son-in-law of Hampayya. The conclusion that Ex. A evidenced a real transaction in favour of the plaintiffs Nos. 1 to 4 is based upon the evidence in the case and I cannot say that that conclusion is not warranted by the facts.
4. Point No. 2.--As regards adverse possession, both the lower Courts have found that from 1899 to 1903 Pompayya and Mallayya were in possession by virtue of the agreement to purchase entered into with the Racherla family, so their possession was not certainly adverse to the Racherla people. The sale had not been completed, and the Racherla people must be still considered to have regardedithemselves as the owners. As the sale had not been completed in 1903 Hampayya decided to purchase the lands and the possession cf Pompayya and Mallayya after that period must be considered to be by the permission of Hampayya. I do not think, therefore, that defendants Nos. 4 and 5 are the owners of the suit lands by adverse possession. I may state that this argument was only lightly touched upon by the learned Advocate General. Long possession by Pompayya and Mallayya was referred to by him more in support of the agreement that Ex. A evidences a benami transaction than as a basis for separate argument.
5. As regards the plea of the 3rd defendant that the present suit is not maintainable on account of the order passed in O.S. No. 531 of 1918, the facts are as follows. The 3rd defendant filed O.S. No. 2 of 1918 on the file of the District Court and attached the plaint lands before judgment; plaintiffs filed a claim petition which was dismissed, they, therefore, filed O.S. No. 531 of 1918 on the 9th of October 1918 for getting the summary order set aside and they filed the present suit on the 8th of July 1919. It will be seen that both these suits were filed within a year of the date of the order on the claim petition. In the present suit there is reference in the plaint to the claim petition and a prayer for a declaration of the rights of the plaintiffs to the plaint lands aginst all the defendants including the 3rd defendant. After the institution of this suit, the prosecution of O.S. No. 531 of 1918 was obviously unnecessary when the 3rd defendant took the objection that the present suit was not maintainable, O.S. No. 531 of 1918 had already been filed against him and the plaintiffs, therefore, withdrew that suit (O.S. No. 531 of 1918). It is the order passed when it was withdrawn that is relied upon by the 3rd defendant as a bar to the present suit. The decree, Ex. XLIV, giving permission to the plaintiffs to withdraw the suit does not say whether it was with liberty or without liberty to bring a fresh suit. As it does not dismiss the suit, I do not think that the plaintiffs are precluded from agitating the question raised in O.S. No. 531 of 1918 in this suit. No doubt under Order XXIII, when a plaintiff withdraws a suit without the permission of the Court, he shall be precluded from instituting fresh suit; but this does not preyent the trial of a subject-matter, so long as such trial is not affected by the principle of res judicata. As Ex. XLIV shows that there was no final adjudication of the rights forming the subject-matter of that suit, I think that the plaintiffs may claim that the summary order passed on their claim petition should be set aside in the present suit. The declaration of title claimed by the plaintiffs in this suit amounts to a setting aside of the order on the claim petition. I have already stated that both this suit as well as O.S. No. 531 of 1918 were filed within a year of the date of the order on the claim petition. The plaintiffs elected to proceed with this suit involving the same relief after dropping the other. I may say in this connection O.S. No. 2 of 1918, in connection with which the plaint lands were attached by the 3rd defendant was dismissed after the filing of this suit. I agree with the learned District Judge that the present suit is not barred by the order in O.S. No. 531 of 1918.
6. I dismiss the second appeal with costs of defendants Nos. 9 and 10. The memorandum of objections filed by respondents Nos. 1 and 2 raises the same question dealt with in the second appeal. It is also dismissed with costs of respondents Nos. 9 and 10.