KEMPEGOWDA Vs. RAME GOWDA

JUDGEMENT

(1.) This second appeal has been referred to a Division Bench by Datar, J., under the Proviso to S.6 of the Mysore High Court Act, 1961, as his Lordship felt that this appeal involves a 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, OS. 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 Or.21, R.103 CPC., for a declaration of their title of the suit property and for setting aside the order of the Munsiff in Mis.Case 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 have held against the appellants. However, the appellants contended that the present suit brought under Or.21, R.103 CPC., 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.