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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1953 of 1969.

320

Appeal by special leave from the, judgment and decree dated ,October 18, 1968 of the Mysore High Court in Regular First

-Appeal No. 56 of 1963.

M. C. Chagla and R. Gopalakrishnan, for the appellant. S. V. Gupte, R. V. Pillai Sadasiv Rao and P. Keshava Pillai, for respondent No. 1.

The Judgment of the Court was-delivered by Hegde, J. This is a plaintiff's appeal by special leave. The plaintiff sued for possession of the suit properties on the basis of his title. The suit properties originally belonged to the family .of one Veerbaswantji Rao Deshmukh. He died in 1892 without male issues, leaving behind him his widow Ratnabai and a daughter by name Lakshmibai. Ratnabai succeeded to the estate, of her husband. She died in 1924. On her death Lakshmibai became entitled to the suit properties. But one Parwatibai,alias Prayag Bai took unlawful possession of the 'suit properties. Hence Lakshmibai instituted a suit for their possession in the court of Sadar Adalath, Gulbarga, against the said Parwatibai and obtained a decree. In execution of the said decree Lakshmibai obtained delivery of the lands described in Schedule 11 to the plaint. Lakshmibai died in 1948. Sometime thereafter Parwatibai also died. The defendant claiming to be the sister's son of Veerbaswanth Rao Deshmukh got himself impleaded as the legal representative of Lakshmibai in the execution proceedings and sought delivery of the lands mentioned in Schedule I of the plaint. Meanwhile one Vishwanath alleging to be the legal representative of Parwatibai got himself impleaded in the execution proceedings. Thereafter the defendant and Vishwanath entered into a compromise in pursuance of which Vishwanath delivered possession of the lands included in Schedule I to the defendant. Sometime thereafter the plaintiff applied to the court to reopen the execution proceedings and implead him as the legal representative of Lakshmibai claiming that he is the adopted son of Lakshmibai. The executing court dismissed his application

-holding that his remedy was by way of a sevarate suit. A revision taken against that order to the High Court was rejected. Thereafter the plaintiff filed a suit in the court of Subordinate District Judge, Bidar, for a declaration that lie is entitled to be impleaded 'in the execution proceedings mentioned earlier as the revresenta- tive of Lakshmibai and to proceed with the execution after setting aside the order made by the executing court. on the, basis of the compromise entered into between the defendant and Vishwanath. It may be noted that that was the only relief asked for in the plaint. The purported cause of action for the suit was -the dismissal of the plaintiff's application for impleading him in the execution proceedings. That suit should have been dismissed on the ground that it was not maintainable in law. But strangely enough it was dismissed on the ground that it was hit by s. 42 of the Specific Relief Act inasmuch as the plaintiff did not sue for possession of the concerned property. Thereafter the suit from which this appeal arises was instituted by the plaintiff- on the basis of his title. The trial court dismissed his suit in respect of the lands mentioned in Schedule I of the; plaint on the ground that the relief in question is barred by Order 2, rule 2, Code of Civil Procedure. -It decreed the suit for the possession of the: lands mentioned in Schedule II except items 3 and 9. It also,, decreed the plaintiff's claim in respect of the- cash amount mentioned in the plaint.

We are of the opinion that the trial court and the High Court erred in holding that the plaintiff's suit in respect of the lands, mentioned in plaint Schedule I is barred by Order 2, rule 2, Code of Civil Procedure. The suit instituted by the plaintiff. in the court of Subordinate District Judge, Bidar for a declaration that he is' entitled to be impleaded in the execution proceedings as legal representative of Lakshmibai and to proceed with the execu- tion proceedings, was as mentioned earlier, a misconceived one. It was exercise in futility. His remedy was to file a suit for the possession of the concerned properties on the basis of his title.