P UMANATH BHANDARY Vs. PEDRU SOUZA

JUDGEMENT

(1.) These Civil Miscellaneous Second Appeals arise out of two applications for restitution.

(2.) The appellants claim through one Bhandari who filed two suits O.S. Nos. 236 and 237 of 1937 for recovery of possession of two parcels of land which he alleged were held on chalgeni or terminable leases by Juam Souza and Thomas Souza. The suits were decreed on the 30th August 1938. On the 25 October, 1938, one Pedru Souza, who will hereafter be referred to as Pedru, filed O.S. No. 505 of 1938 against Bhandari praying for a declaration that the properties involved in both O.S. Nos. 236 and 237 of 1937 were his mulgeni holdings, and that the decrees in those two suits were not binding on him and praying also that Bhandari should be restrained by an injunction from executing the decrees and disturbing his possession.

(3.) In R.E.A. Nos. 786 and 787 of 1938, Bhandari applied for delivery of possession of both the properties alleging obstruction by Pedru, which he sought removal of. The applications were dismissed on the ground that the suit filed by Pedru for establishing his right to those properties was still pending. O.S. No. 505 of 1938 was dismissed on the 21 of July 1941. Relying on that dismissal Bhandari filed two fresh applications R.E.A. Nos. 495 and 496 of 1942, which were ordered under Order 21, Rule 98 of the Civil Procedure Code on the 4th August 1942. Meanwhile, Pedru filed an appeal in the Court of the Subordinate Judge of Mangalore against the decree of dismissal in O.S. No. 505 of 1938 and this appeal was allowed in his favour on the 16 of March 1944. It is admitted that Bhandari took possession of the properties in pursuance of the orders in R. E. A. Nos. 495 and 496 of 1942. Pedru sought restitution in R. E. Ps. Nos. 356 and 357 of 1944 and they have led to the present second appeals, restitution having been ordered by both the Courts below.