NANJEDEVARU Vs. H VRAMA RAO

JUDGEMENT

(1.) These two appeals arise out of a suit instituted by the appellant in S. A. 56/52-53 for a declaration of title and for possession. The suit was dismissed by the trial Court. On appeal, the decree of the trial Court was reversed and the plaintiff was declared entitled to 2/3 share of the suit property and the defendant to the remaining 1/3 share. Both the parties felt aggrieved by the said decision and each has filed an appeal against the same. S. A. 92/52-53 has been filed by the defendant in the suit and S. A. 56/52-53 has been filed by the plaintiff.

(2.) The plaintiff's case is that he had purchased the suit properties under Exhibits A and B on 23-4-1943 and 3-5-1943. The allegation in the plaint is that the said properties belonged to one Shamanna and his two sons, Narayana and Subrahmanya, who are members of an undivided joint Hindu family, and they sold the said properties to the plaintiff and put him in possession thereof. The defendant claims under an agreement for sale executed by Shamanna on 26-9-1942. That document, according to the defendant, conferred absolute right on him over the properties in suit. The defendant's further case was that in pursuance of the document he was put in possession of the said properties and the plaintiff was fully aware of the said possession and title of the defendant. In the premises the defendant contended the plaintiff was non-suited and was not entitled to maintain the said suit.

(3.) It appears that there was a previous suit instituted by the plaintiff against several defendants including the present defendant for a declaration of title and for an injunction. The said suit ultimately came up to this High Court for final decision. This Court took the view that in order to succeed in the case as framed by the plaintiff the plaintiff must establish that he was in possession of the property, but it was clear that the possession of the property was not with the plaintiff. In the premises this Court came to the conclusion that the finding of the learned Subordinate Judge that the 1st defendant was in possession of the properties was correct and in view of the decision of the Privy Council repeated in Joseph Klein v. Eliahu (Leol Heiman, AIR 1949 PC 53, the plaintiff could gain nothing by the declaration asked for unless he proceeded to take necessary action for recovery of possession of the lands of which he claimed to be the purchaser. In that view of the matter, this Court did not think it proper to go into the question of title and dismissed the suit.