Bhagwati, J. - (1.) THIS is a first appeal from a decision of the Civil Judge, Senior Division, at Hubli, who dismissed the plaintiff's suit.
(2.) THE suit came to be filed by the plaintiff under the following circumstances. THE plaintiff's father initiated a suit, being suit No.438 of 1911, in the First Class Subordinate Judge's Court at Dharwar, by filing a pauper petition No.5 of 1910 against his brother Laxmipati and others including one Hanmant Krishna Deshpande who was defendant No.21 in the suit. THE suit was a suit for partition claiming a half share in the ancestral properties, the properties included in the suit being Survey Nos. 49, 52, 116, 17 and 20.This suit had a chequered career "as appears from the judgment delivered by this Court in Digambar Hanmant v. Shrinivas Laxmipatirao (1937) F. A. No.84 of 1934, decided by 1937 (Unrep. ). THE plaintiff's father having died in the meanwhile the plaintiff filed and prosecuted the appeal, and it appears that on December 15, 1937, a decree was passed by the Appeal Court in terms of the compromise which had been arrived at between the plaintiff and defendant No.21 Hanmant Krishna Deshpande, who was respondent No.18 in the appeal, under which the plaintiff was declared to be the full owner of survey Nos. 49, 52,116,17 and 20. There had been in the meantime another series of litigation to which the plaintiff's father and his brother Laxmipati were parties. A suit being suit No.551 of 1910 had been filed in the Second Class Subordinate Judge's Court at Hubli by one Padmawa the daughter of one Hanmant against the plaintiff's father, his brother Laxmipati and the heirs of Bistawa and Balawa who were the two sisters of Padmawa. Padmawa had a one-third share in the properties, the subject-matter of the suit, having inherited them as the heir of her deceased father Hanmant after the death of her mother (Jangabai. She had also purchased the one-third share of her sister Balawa, with "the result that in that suit she claimed a two-thirds share in the suit properties. These suit properties were again the very same survey Nos. 49, 52, 116, 17 and 20 and were claimed by Padmawa as belonging to the estate of her deceased father. The plaintiff's father and his brother Laxmipati claimed to be the owners of these properties by adverse, possession. Hanmant Krishna Deshpande, defendant No.21, in suit No.438 of 1911 in the First Class Subordinate Judge's Court at Dharwar, was defendant No.7 in this suit, he having purchased the one-third share of Bistawa the other sister of Padmawa. It appears-that Hanmant Krishna Deshpande relinquished his one-third share in the properties of Hanmant the father of Padmawa, Bistawa and Balawa in favour of one Bhimaji Shivaji and Bhimaji Shivaji also purchased Padmawa's interest in these-properties which had comprised not only her one-third share therein but the one-third share of Balawa which she in her turn had purchased. The result was that Bhimaji Shivaji became the absolute owner of the whole of the interest in the suit properties and he prosecuted the suit in his capacity as such owner against the plaintiff's father and his brother Laxmipati who were claiming these properties by adverse possession. In that suit Bhimaji Shivaji obtained a decree on August 4, 1915, declaring him to be the absolute owner of these properties as against the plaintiff's father and his brother Laxmipati. In execution of this decree Bhimaji Shivaji obtained possession of the suit properties and in 1917 made a gift of the same to Laxmipati's wife by name Tungabai. After Bhimaji Shivaji's death Hanmant defendant No.1 who was his undivided nephew filed a suit being suit No.78 of 1928 for possession of the suit properties against Tungabai and obtained possession of the same on March 17, 1984. Defendant No.1 continued in possession of the suit properties from March 17, 1934, until June 11, 1941, when he was dispossessed of the same under the cicumstances hereinafter stated. As already stated before, under the terms of the compromise decree obtained on December 15, 1937, in Digambar Hanmanfs case in appeal from the decree passed by the First Class Subordinate Judge's Court at Dharwar in suit No.438 of 1911, the plaintiff had been declared the owner of the suit properties as against defendant No.21 Hanmant Krishna Deshpande, respondent No.18 in the appeal. In execution of that decree which he obtained on December 15, 1937, the plaintiff filed a darkhast being Darkhast No.131 of 1939 against the present defendants and in execution of that darkhast got possession of the suit properties on June 11, 1941. A civil revision application was filed by defendant No.1 being Miscellaneous No.36 of 1941 on July 21, 1941, for restoration of possession of the properties. That was, however, filed beyond the period of 30 days, with the result that it was liable to be dismissed. Defendant No.1 therefore on April 14, 1942, filed a purshis to the effect that even though he was not himself a party to the decree in execution of which possession was taken, he was the legal representative of the parties to the decree. He stated that Hanmant Krishna Deshpande who was a party to the decree had sold the lands to Bhimaji Shivaji after the institution of the suit, that he claimed through Bhimaji Shivaji, that he had actually taken possession of the lands from Tungabai Laxmipati who was also a party to the suit in which the decree under execution was passed, and that he being a transferee pending litigation was under the law as interpreted in Bombay a party to the decree. An order was made on this application on April 1 (5, 1942, by the learned Joint First Class Subordinate Judge holding that there was no legal objection why he should not treat the application as one under Section 47 of the Civil Procedure Code and further holding that the application was within time as it had been filed within three years from the date of dispossession. The application was then dealt with on the merits and an order was passed by him on April 16, 1942, to the effect that the decree of which execution was sought did not provide that the decree-holder should obtain possession of the suit properties from the judgment-debtor, that it was a mere declaratory decree and that therefore the plaintiff was not entitled to possession of the suit properties in execution of the decree. A civil revision application, being Miscellaneous No.876 of 1942, was filed for the purpose of amending the decree which had been obtained by the plaintiff on December 15, 1937, and a First Appeal No.208 of 1942 was also Held by him against the order dated April 16, 1942. This Civil Revision Application No.867 of 1942 was dismissed on July 24, 1944, and in the result the plaintiff also withdrew the First Appeal No.208 of 1942 which he had filed. The plaintiff ultimately filed the present suit on September 25, 1944, for an order and injunction against the defendants restraining defendant No.1 permanently from taking possession of the suit properties from the plaintiff and further and other reliefs.
(3.) A written statement was filed by defendant No.1 in which he contended that the decision in suit No.551 of 1910 barred the plaintiff's present suit as res judicata and that the plaintiff was not entitled to any relief as prayed. On these pleadings the suit came on for hearing before the learned Civil Judge, Senior Division, at Hubli. Various issues were raised amongst which were the following issues : (6) Whether the present suit is barred as res judicata having regard to the decision in suit No.551 of 1810? (8) Whether the defendants have perfected their title by adverse possession ? (12) Whether the decree in suit No.551 of 1910 bars the present suit as res judicata ? and (16) Whether the decision in suit No.438 of 1911 bars the present suit as res judicata ? Even though it had been contended by defendant No.1 in his written statement that the compromise entered into between the plaintiff and Hanmant Krishna Deshpande was tainted by fraud and could not be binding on defendant No.1, no issue was raised in respect of the same. After hearing the evidence adduced before him the learned Judge came to the conclusion that the decision in suit No.438 of 1011 did not bar the present suit as res judicata but the decree in suit No.551 of 1910 barred the present suit as res-judicata. On issue No.8, viz. whether the defendants had perfected their title by adverse possession, he did not consider it necessary to go into the same and the answer to that issue was "unnecessary. " The learned Civil Judge having come to the conclusion that the decree in suit No.551 of 1910 barred the present suit as res judicata eventually dismissed the plaintiff's suit. This appeal was filed by the plaintiff against that decision of the learned Civil Judge.;