NARAYAN LAXMAN SUDIR Vs. HARISCHANDRA BABU SUDIR

JUDGEMENT

(1.) THE appellants are original defendants No. 2 and 3 and hereinafter shall be referred as defendants No. 2 and 3. The respondents No. 1 to 10 are original plaintiffs and shall be hereinafter referred as plaintiffs. The respondent No. 11 is original defendant No. 1 and shall be referred hereinafter as defendant No. 1 and respondent No. 12 is original defendant No. 4 and shall be referred as defendant No. 4. The plaintiffs had filed a suit for declaration, damages and permanent injunction against the defendants. This suit was filed in the backdrop of Suit No. 18236/59 in which defendant No. 1s father-in-law was the plaintiff and present defendants No. 2 to 4 were defendants therein. The said suit was for declaration of ownership of the properties which are also subject matter of the present appeal. In the said suit present defendants No. 2 to 4 had laid their claim on the basis of Gift Deed dated 30th September, 1950. The said suit was decreed in favour of Baburao Mukund Sudir through whom present defendant No. 1 was claiming right to the said properties as against defendants No. 2 to 4 in the said suit. The present defendants No. 2 to 4 had filed an appeal which was dismissed and then Second Civil Appeal No. 25/1978 was filed by the present defendants No. 2 to 4 before the erstwhile Court of Judicial Commissioner. The original plaintiffs therein had died and the present defendant No. 1 had stepped into their shoes. When the matter was pending before the erstwhile Court of Judicial Commissioner, the plaintiff in the said suit had withdrawn the suit itself and the suit was permitted to be withdrawn. After the withdrawal of the suit an application was filed on 28-3-80 by the Advocate for the present defendants No. 2 to 4 stating that the original suit had been withdrawn, as a result of which the defendants say has been vindicated and the possession of the suit properties therein be handed over to them. Prema Babu Sudir as legal representative of the original plaintiff gave no objection. On this application, the Civil Judge passed an order on 31st March, 1980 ordering the delivery of possession of the suit properties to the present defendants No. 2 to 4 after notifying the receiver. In pursuance of the said order, the suit properties were delivered by the Bailiff on 15th April, 1980 to the present defendants No. 2 and 3.

(2.) THE present plaintiffs stake their claim against these properties in pursuance of Sale Deed dated 22-1-1975 which was executed in their favour by the present defendant No. 1. The previous suit had been decreed on 30-1-68 and during the pendency of the appeal, the Sale Deed was executed by the plaintiff in the said suit in favour of the plaintiffs in present suit. The present plaintiffs came to be in possession from the date of execution of the Sale Deed and contended that the previous suit was withdrawn by the present defendants to defeat their rights.

(3.) THE trial Court had dismissed the suit of the plaintiff, but in appeal before the learned Addl. District Judge, Margao the order of dismissal of the plaintiffs suit was set aside and the defendants were restrained permanently from interfering with or trespassing into any of the suit properties. This judgment and order dated 14th August, 1996, is challenged by the appellants namely defendants No. 2 and 3 in this appeal which was admitted on the following substantial questions of law :--