GURUSANGAPPA BASAPPA HOKRANI Vs. BASLINGAPPA BASAPPA HOKRANI

JUDGEMENT

(1.) THIS is a first appeal from the decision of the First Class Subordinate Judge at Bijapur in Civil Suit No.52 of 1934. The plaintiffs claiming to be the mortgagees brought this suit to enforce their mortgage. In the written statement different defences are raised. The trial Court, after an investigation into all the disputes, found in favour of the plaintiffs. The amount found to be due is sixteen thousand and odd rupees as stated in the decree. Before us the learned advocate for the appellants has urged only two points. The first is that this suit is barred because of the decree passed in suit No.277 of 1926. The second is on the point of consideration.

(2.) IN support of his contention on the first point it was urged that suit No.277 of 1026 was filed by plaintiff No.4 against defendants Nos. 1 and 2 The suit was for a declaration that plaintiff No.4 was the owner of the property, that it should be declared that the houses in question were in his possession as owner, and if pending the suit possession was lost, an order should be made to replace the plaintiff in possession. Plaintiff No.4 lost that suit. The Court held that plaintiff No.4 was a benamidar, the real owners being plaintiffs Nos. 1 to 3 The Court also held that the transaction under which plaintiff No.4 claimed title was not a sale but only a mortgage. As the suit was framed on the ground of ownership and a declaration to that effect only was sought, the suit was dismissed. The present suit is filed by the four plaintiffs. They claim to be the mortgagees of the property. There are five defendants. The first four of them are members of one family. Defendant No.5 is an outsider and it is stated in the plaint that a hollow second mortgage deed on the suit property was executed by defendants Nos. 1 and 2 recently in favour of defendant No.5. The plaintiffs claim that the said; transaction is not binding upon them. IN the alternative it Is urged that even assuming that defendant No.5 had advanced any money, the plaintiffs claimed priority over that transaction.

(3.) IN addition it may be noticed that the parties in the two suits are different. There is clearly an additional relief claimed in this suit against defendant No.5. The contention that the suit is barred under the principles of res judicata therefore fails.