PANDOBA KUNBI Vs. MURLIDHAR KRISHNAPAKSHI

JUDGEMENT

(1.) THE plaintiff purchased the house in suit at a Court sale. He endeavoured to take possession but was resisted by the defendants. He made an application Under Order 21, Rule 97, Schedule 1, Civil P.C., but this application was dismissed. The present suit has been instituted to establish the plaintiff's rights to the present possession of the property. He succeeded in the lower Courts.

(2.) IN appeal it is first urged that the plaintiff in these circumstances was bound to seek relief of possession in addition to declaration of title. It seems clear that Section 42, Specific Relief Act, does not permit the institution of the present suit. But apart from the Specific Relief Act, the plaintiff is given a right to institute this suit by Order 21, Rule 103, Schedule 1, Civil P.C. A Full Bench of the Madras 'High Court in Kristnam Sooraya v. Pathma Bee (1906) 29 Mad 151, held that the proviso to Section 42, Specific Relief Act did not take away the special right conferred by Section 283 of the old Civil Procedure Code, corresponding to Order 21, Rule 103 of the new Code. No rulings to the contrary have been cited before me and I agree with the decision. The plaintiff has already a decree which he can execute after obtaining the declaration which the plaint asked for.

(3.) THIS is, in my opinion, a sufficient concurrent finding on the point. The lower appellate Court has with sufficient clearness found that Maroti sold the house to Dashrath Singh and that Dashrath Singh was in possession. The learned Additional District Judge-states that the plaintiff's witnesses are comparatively more reliable than the witnesses of the defendants and this statement must refer to the evidence that Dashrath Singh occupied the house for five years. The respondent has a title to the house and his predecessor was in possession within 12 years. There is then no reason for interference with the decree of the lower appellate Court. The appeal is dismissed; costs on the appellants.