A.V.CHANDRASHEKARA,J. - (1.) The first defendant of an original suit in O.S. 144/08 which was pending on the file of Principal Civil Judge, Vijayapura, has filed this appeal under Section 100, C.P.C. challenging the concurrent judgments passed against him. Respondents 1 to 4 are plaintiffs in the said suit. The 2nd defendant who is the father of the 1st defendant, died during the pendency of the appeal filed before the Senior Civil Judge, Vijayapura. Since appellant is his legal heir, he has filed this appeal.
(2.) The facts leading to the filing of the present suit in O.S. 144/08 and the present appeal are as follows: (a) The suit schedule property bearing CTS No. 458 is a residential house in Ward No. 5 of Vijayapura city. It belonged to Mohamed Shafi Inamdar who was the husband of the 1st plaintiff and father of plaintiffs 2 to 4. It is the case of the plaintiffs that the appellant-1st defendant-Abdul Hameed was inducted as tenant and he was paying rent at the rate of Rs. 1,000/- p.m. After the death of Shafi Inamdar, his wife and children inherited the property. (b) Defendants are closely related to the plaintiffs. Somehow they managed to get their names entered in CTS records on the basis of an alleged oral gift (Hiba) stated to have been executed by deceased Mohamed Shafi Inamdar in favour of the 1st defendant. Hence 1st plaintiff chose to file a suit in O.S.97/93 before the Munsiff Court at Vijayapura seeking a declaration to the effect that the entry of 1st defendant's name in the CTS extracts were illegal and for continuing the name of the 1st plaintiff in the records as Khatedar. The present appellant who was defendant in the suit had filed a detailed written statement setting up the plea of Hiba claiming absolute title. (c) The said suit came to be dismissed after contest and hence the 1st plaintiff chose to file an appeal under Section 96, C.P.C. before the Principal Civil Judge, Vijayapura. The said appeal was allowed as against which defendants filed regular second appeal before this Court in R.S.A. 2304/05 which came to be dismissed at the stage of admission. (d) After dismissal of R.S.A. 2304/05, plaintiffs got issued a legal notice calling upon the defendants to vacate and hand over possession of the suit property as they were in illegal occupation. Defendants, according to the plaintiffs, instead of complying with the demand made, got issued a reply through their Advocate stating that they have been in possession as owners under the alleged gift deed executed by Mohamed Shafi Inamdar. Hence a suit was filed seeking the relief of declaration to the effect that plaintiffs are the owners of the suit schedule property and for possession and damages of Rs. 36,000/- at the rate of Rs. 1,000/- p.m. for 3 years prior to the filing of the suit, and also to award future mesne profits. (e) The said suit was contested by the defendants denying all material averments. The averment that the 2nd defendant had been inducted by deceased husband of the plaintiff as tenant and he had agreed to pay rent of Rs. 1,000/- p.m. is specifically denied. The averment that the plaintiffs are owners of the schedule property is also specifically denied. It is averred that the suit is not maintainable either in law or on facts and is hit by Order 2, Rule 2 , C.P.C. since the plaintiff did not seek the relief of possession when the earlier suit was filed in O.S. 97/93. It is his case that he has perfected his title by adverse possession being in possession for more than 12 years adversely to the interest and openly to the knowledge of the original owner. (f) On the basis of the above pleadings, the following issues were framed by the trial Court: (1) Whether plaintiffs prove that they are the owner of CTS No. 458 situated in ward No. V of Bijapur. (2) Whether plaintiffs prove that defendants are in illegal possession over the eastern half portion of CTS No. 458. (3) Whether the defendants prove that suit is not maintainable in view of Order 2, Rule 2 , C.P.C.. (4) Whether plaintiffs are entitled to damages as claimed. (5) Whether plaintiffs are entitled for mesne profits. (6) Whether plaintiffs are entitled for the relief sought. (7) What order or decree. Additional Issues: (1) Whether defendant No. 1 proves that he is an absolute owner and in possession and enjoyment of the suit property by virtue of the Hiba (gift deed) made by deceased husband of plaintiff on 22.10.1990. (2) Whether defendant No. 1 proves that he is in possession and he perfected his title over the suit property by way of adverse possession since 22.10.1990. Preliminary Issue: Whether suit of plaintiff is barred by Section 3 of Limitation Act for lapse of 12 years. The 1st plaintiff is examined as PW1 and 9 exhibits are got marked. The 1st defendant-Abdul Hameed got examined himself as DW1 and one witness as DW2 and in all 94 exhibits are got marked. Ultimately the suit came to be decreed after contest answering issue Nos. 1, 2, 4 and 6 in the affirmative and additional issues 1 and 2, issue No. 3 and preliminary issue in the negative. Against the said judgment, appeal was filed by both the defendants under Section 96, C.P.C. before the Senior Civil Judge, Vijayapura, in R.A. 33/12. The said appeal is dismissed after contest on 5.9.2015 by framing the following points for consideration, as found in paragraph 11 of the impugned judgment: (1) Whether the defendants have established that the trial Court has committed an error by decreeing the suit of the plaintiffs only on the basis of the findings given in RA. 157/02, which was confirmed in RSA. 2304/05. (2) Whether the defendants established that the judgment and decree of the trial Court is capricious, perverse, illegal and contrary to the law. (3) What order. Both the points are answered in the negative. Hence the present appeal is filed under Section 100, C.P.C.
(3.) What is argued before this Court by the learned Counsel for the appellant, Mr. Ameetkumar Deshpande is that the suit in O.S. 144/08 was hit by Order 2, Rule 2 , C.P.C. since plaintiffs had not sought the relief of possession when the earlier suit was filed for the relief of declaration to the effect that incorporation of the name of the defendants in CTS records was illegal and incorrect. It is further argued that the defendants had not only denied title of the plaintiffs on the basis of Hiba executed by the deceased husband in favour of the 1st defendant, but had even emphatically denied their title. Therefore, it is argued that the suit so filed in the year 2008 was specifically barred by time and that a specific assertion was made by the defendants in the written statement filed in O.S. 97/93 on 4.1.1995 not only denying title of the plaintiff, but also asserting their own title on the basis of Hiba. It is further argued that the plea of adverse possession starts from 22.10.1990.;