RAJA HUSSAIN Vs. GAVIAPPA

JUDGEMENT

(1.) The factual antecedents, briefly stated, are : One Gaviyappa Hubli and Somappa Uttangi, as plaintiffs filed Original Suit No. 31-1-1966 before the Munsiff, Koppal against one Raja Hussain and Viswanathasa, as defendants I and 2, for recovery of possession of 80 Square Yards of land out of 869 Square Yards in Plot No. 1696 situate at Koppal. According to the plaintiff, this site was purchased by plaintiff-1 and deceased father of plaintiff-2 from its previous owner Viswanathasa, (Defendant-2), for a sum of Rs, 3000/-. Defendant-1 was alleged to be in wrongful possession of 80 square Yards out of 869 square Yards purchased by the plaintiffs. He had also constructed two huts on the site without their consent. The suit was contested by defendant-1 Raja Hussatn. He opposed the claim on several grounds. His contention was that the construction over the suit site exclusively belonged to him. He further contended that he had purchased the site from one Balakrishnasa about eighteen years back for a sum of Rs. 50/-. He denied that he had committed trespass. He further contended that he had perfected his title by adverse possession. The trial Court framed the necessary issues and recorded evidence. The suit was decreed by the trial Court against defendant-1, it having hell that the plaintiffs were entitled to recover possession of the suit site from defendant-1. Aggrieved by the said judgment and decree, defendant-1, preferred Regular Appeal No. 46-4-1967 before the Civil Judge, Raichur. That appeal was allowed by the learned Civil Judge, by his judgment and decree dated 1-9-1970. He set aside the judgment and decree passed by the trial Court and dismissed the suit of the plaintiffs. Aggrieved by the said judgment and decree, plaintiffs came up in appeal in Regular Second Appeal No. 172 of 1971 before this Court challenging the judgment and decree of the First Appellate Court. That appeal was registered as Regular Second Appeal 172 of 1971 and was heard along with Regular Second Appeals Nos. 175 and 176 of 1971, which pertained to different areas in the same plot and raised similar questions of facts and law. This Court was pleased to hold on hearing that the First Appellate Court failed to decide the question of limitation and the question of adverse possession in accordance with law. In that view, this Court allowed the appeals and set aside the judgments and decrees of the Courts below and remitted the matters back to the First Appellate Court for disposal in accordance with law. When the matter went back before the learned Civil Judge, the learned Civil Judge, Ultimately discovered that plaintiff-1 Gaviappa had died on 19-7-1974 during the pendency of the Second Appeal before this Court. Parties submitted a memo that since the second appeal was decided after he died, without bringing his legal heirs on record, the matter should be referred to this Court for taking such steps are as deemed proper.

(2.) The learned counsel appearing for the parties signed the memo. Relying on the memo, the learned Civil Judge has made a reference to this Court by the above reference. He has referred the matter thus to this Court :

(3.) The learned Civil Judge relied on an unreported decision of this Court, (reported in Short Notes) in C.R.C. No. 5 of .1970 bet ween Jinna Daaaheb Imamsaheb Palegar (Since deceased, by his legal representative decided on 5-7-1978. This, the learned Civil Judge has not referred any statement of facts seeking the opinion of this Court, on a question law.