ISHWAR Vs. SHANTILAL

JUDGEMENT

(1.) THE appellants herein were the plaintiffs of O.S. no. 48/03 which was pending on the file of III Addl. Civil Judge (Jr. Dn.), Gadag. Respondents herein were the defendants in the said suit.

(2.) ONE person by name Gurunath Rao Vadone had two sons, namely, Eshwar, the plaintiff herein and Ramesh. Eshwar and Ramesh were the children of Gurunath Rao Vadone through his second wife Smt. Sulochana. During his lifetime Gurunath Rao Vadone had let the suit schedule property on rent to defendant nos.1 to 6 on monthly tenancy basis. Subsequently, a suit was filed by Eshwar against his brother *Ramachandra for partition and separate possession of all the joint family properties inclusive of the suit schedule property. Defendants had been made as parties in the said suit as they had purchased half share from *Ramachandra in respect of the suit schedule property. The suit came to be decreed and preliminary decree was passed, against which, final decree proceedings were also initiated. Final decree proceedings attained finality on 31.01.2002. In the Final Decree Proceedings the plaintiff -Eshwar was allotted 19 ft. x 10.1 ft. in respect of the suit schedule property. This was the Northern portion in the schedule property. On the ground that actual possession cannot be recovered unless the suit is filed terminating the tenancy of the defendant, a suit came to be filed in O.S. No. 48/03 against the defendants after issuing quit notice as contemplated u/S 106 of T.P. Act. Suit was resisted by the defendants herein on various grounds one of the important grounds raised was the suit was not maintainable in view of prohibition of Sec. 47 of CPC. It was also pleaded that the remedy open was execution petition pursuant to the final decree. On the basis of the above pleadings, the following issues came to be framed by the trial Court.

(3.) ULTIMATELY , suit came to be decreed after examining Ramesh Gurunath Rao Vadone, brother of plaintiff -Eshwar and two witnesses came to be examined on behalf of the defendants. Suit was decreed on 27.08.2005 as against which appeal came to be filed in R.A. No. 136/05 before the Addl. Court of Civil Judge (Sr. Dn.), Gadag. Appeal is allowed mainly on the ground that suit is not maintainable in view of Sec. 47 of C.P.C. It is held that plaintiff should have sought recovery by filing execution petition based on the final decree proceedings.