MOHAMMED QASIM Vs. MOHAMMED MAINUDDIN

JUDGEMENT

(1.) This second appeal is by the third defendant against the decree passed by the Additional Civil Judge, Gulbarga, in R.A. No.95 of 1968, affirming the decree parsed by the Munsiff at Sedarn in OS.28/1 of 1966.

(2.) The first respondent-plaintiff instituted the suit on the 3rd of June, 1966 for a declaration that he is the owner of the suit house situate at Sedarn, for possession and mesne profits at the rate of Rs.10 per month from the 1st of April till realisation. The case of the plaintiff is that defendants 1 and 2 were the original owners under whom the third defendant was a tenant. He purchased the suit property from defendants 1 and 2. But, defendant 3 forfeited his tenancy rights as he disclaimed the plaintiff's title and set up title in himself. The plaintiff has further averred that in these circumstances, the third defendant is in posseession as a trespasser. It is on the basis of these averments that the. plaintiff sought a decree for declaration of title, possession and mesne profits. The third defendant, who is the contesting defendant, set up title in himself and asserted that he has perfected his title by adverse possession. He denied the plaintiff's title. The Court of first instance made a decree in favour of the plaintiff, declaring his title and awarding possession and mesne profits, at the rate of Rs.10 per month from the 1st of April, 1966. That decree having been affirmed on appeal by the learned Civil Judge, the third defendant has challenged the same in this second appeal.

(3.) Sri N. Santhosh Hegde, learned Counsel appearing for the appellant, contended that the decree passed, for possession and mesne profits, by the Court below is contrary to law. It was contended that in view of the bar contained in sub-sec. (1) of S.21 of the Mysore Rent Control Act, 1961 (hereafter referred to as the Act) no decree for possession could be passed in favour of the plaintiff and as against the third defendant. Such a contention was sought to be raised by the third defendant in the Court of first insance, but the Court of first instance did not permit the third defendant to raise such a contention. The first part of sub-sec. (1) of S.21 of the Act in so far as it is material for the purpose of this case may be extracted as follows :