SIDRAMAPPA Vs. RAJASHETTY

JUDGEMENT

(1.) This is a plaintiff's appeal by special leave. The plaintiff sued for possession of the suit properties on the basis of his title. The suit properties originally belonged to the family of one Veerbaswanth Rao Deshmukh. He died in 1892 without male issues, leaving behind him his widow Ratnabai and a daughter by name Lakshmibai. Ratnabai succeeded to the estate of her husband. She died in 1924. On her death Lakshmibai became entitled to the suit properties. But one Parwatibai alias Prayag Bai took unlawful possession of the suit properties. Hence Lakshmibai instituted a suit for their possession in the court of Sadar Adalath, Gulbarga against the said Parwatibai and obtained a decree. In execution of the said decree Lakshmibai obtained delivery of the lands described in Schedule II to the plaint. Lakshmibai died in 1948. Sometime thereafter parwatibai also died. The defendant claiming to be the sister's son of VeerbaswanthRao Deshmukh got himself impleaded as the legal representative of Lakshmibai in the execution proceedings and sought delivery of the lands mentioned in Schedule I of the plaint. Meanwhile one Vishwanath alleging to be the legal representative of Parwatibai got himself impleaded in the execution proceedings. Thereafter the defendant and Vishwanath entered into a compromise in pursuance of which Vishwanath delivered possession of the lands included in Schedule I to the defendant. Sometime thereafter the plaintiff applied to the court to reopen the execution proceedings and implead him as the legal representative of Lakshmibai claiming that he is the adopted son of Lakshmibai. The executing court dismissed his application holding that his remedy was by way of a separate suit. A revision taken against that order to the High Court was rejected. Thereafter the plaintiff filed a suit in the court of sub-ordinate District Judge, Bidar for a declaration that he is entitled to be impleaded in the execution proceedings mentioned earlier as the representative of Lakshmibai and to proceed with the execution after setting aside the order made by the executing court on the basis of the compromise entered into between the defendant and Vishwanath. It may be noted that that was the only relief asked for in the plaint. The purported cause of action for the suit was the dismissal of the plaintiff's application for impleading him in the execution proceedings. That suit should have been dismissed on the ground that it was not maintainable in law. But strangely enough it was dismissed on the ground that it was hit by Section 42 of the Specific Relief Act inasmuch as the plaintiff did not sue for possession of the concerned property. Thereafter the suit from which this appeal arises was instituted by the plaintiff on the basis of his title. The trial Court dismissed his suit in respect of the lands mentioned in Schedule I of the plaint on the ground that the relief in question is barred by Order 2 Rule 2, Code of Civil Procedure. It decreed the suit for the possession of the lands mentioned in Schedule II except items 3 and 9. It also decreed the plaintiff's claim in respect of the cash amount mentioned in the plaint.

(2.) Both the plaintiff and the defendant went up in appeal to the High Court of Mysore as against the decision of the trial Court to the extent that decision was against them. The High Court affirmed the decision of the trial Court.

(3.) Before the trial court and the High Court, there was controversy as regards the truth of adoption pleaded by the plaintiff. Both the courts have upheld the plaintiff's claim that he was adopted by the husband of Lakshmibai. That question was not reopened before us.