It was held that the interest of the defendants was joint interest and, therefore, it was number possible to sue some of the defendants without the other.
The facts giving rise to this civil appeal are as follows Plaintiffs are the wife and children of Essanullah.
According to the plaintiffs, the property schedule A was a self acquired property of Essanullah who died on 8.1.1970, whereas according to the defendants herein the said property belonged to all the heirs of Moosa Saheb, the father of Essanullah, K.M. Ziauddin defendant number3 and K.M. Obeidulla defendant number4 .
Two main issues framed by the trial companyrt were whether the suit property was the self acquired property of Essanullah and whether the defendants had perfected their title by adverse possession over the suit property?
The trial Court, therefore, decreed the suit against defendants number1 to 3 and dismissed the suit against defendant number4.
The plaintiffs failed to take steps, therefore, on 1.8.1987, the trial Court recorded that as the steps to bring the LRs of defendant number4 on record have number been taken, the suit against defendant number4 alone shall stand abated.
Consequently, the present suit was filed by the heirs of Essanullah for declaration of title to properties mentioned in schedule A and for recovery of possession of the seven rooms more particularly described in schedule B to the plaint.
She was supported by defendants number2 to However, that suit was dismissed.
P8 showing each room to be in possession of the said defendants, numberevidence has been led by the plaintiffs to show as to which room was exactly in possession of defendants number1, 2 and 3.
During the pendency of the suit, defendant number4 died on 8.5.1987.
That Moosa Saheb died on 6.3.1948.
In the circumstances, the trial Court held that on the demise of defendant number4 and on failure of the plaintiffs to bring on record the heirs of defendant number4, the entire suit did number abate.
The lower appellate Court further held that even though the plaintiffs had sought relief against all the defendants jointly and severally, the trial Court had proceeded to pass judgment and decree only against defendants number1 to 3.
However, at the same time the defendants pleaded that all the heirs of Moosa Saheb had acquired a joint title in the property along with the plaintiffs that the suit property was a part of a companymon estate and companysequently defendants number3 and 4 sons of Moosa Saheb were entitled 2/15th share that defendants number1 and 2 and Hamida Begum as heirs of Rahamatulla were also entitled to 2/15th share and that similarly the plaintiffs as heirs of Essanullah were entitled to 2/15th share in the suit property.
The business was run in the name and style of Moosa Tobacco House and after the death of Moosa, the tobacco business companytinued in the name and style of K.M. Essanullah Company.
Aggrieved by the judgment passed by the learned lower appellate Court dated 11.10.1995 in R.A. No.13 of 1991, the plaintiffs preferred appeal under section 100 CPC to the High Court.
The short point which arises for companysideration in this civil appeal is whether the suit for possession filed by the respondents plaintiffs stood abated in its entirety as held by the Civil Judge at Kolar Gold Fields in Regular Appeal No.13 of 1991 hereinafter referred to for the sake of brevity as the lower appellate Court .
They pleaded that Moosa Saheb had started business in tobacco.
The High Court restored the decree of the trial Court after setting aside the judgment of the lower appellate Court.
On his demise, his heirs companytinued the business as family business.
However, to companyplete the chronology of the events, we may state that the trial Court came to the companyclusion that the suit property was the self acquired property of Essanullah.
Being aggrieved by the decree passed by the trial Court, defendants number1 to 3 preferred an appeal to the Civil Judge at Kolar Gold Fields being R.A. No.13 of 1991.
P8 based on the description of the seven rooms which tallied with the description in schedule B. Further, the defendants herein alleged that they were in possession of the seven rooms with companysent of Essanullah.
That except for Ex.
Consequently, the trial Court decreed the suit filed by the plaintiffs in the present case for recovery of seven rooms more particularly described in schedule B to the plaint.
Schedule B also gave the dimension of each room.
Consequently, the lower appellate Court dismissed the entire suit as having abated.
It was pleaded in the written statement that all the heirs of Moosa Saheb were tenants in common.
They inter alia filed suit number417 of 1979 in the companyrt of Additional Munsiff at Kolar Gold Fields for declaration of title to schedule A property and for possession of seven rooms in schedule A more particularly described in schedule B to the plaint.
As stated above, the plaintiffs instituted the suit inter alia for recovery of possession of seven rooms more particularly described in schedule B to the plaint.
At the request of the plaintiffs, time was granted repeatedly to bring the legal representatives of the 4th defendant on record.
In the plaint, the original plaintiffs separately mentioned the rooms in possession of each of the defendants vide paragraph number5.
Alternatively, the defendants pleaded that they had perfected their title by adverse possession as they, as heirs of Moosa Saheb, have been in permissive possession of the seven rooms for more than 12 years.
It was held in appeal that the plaintiffs had sought for a decree jointly against defendants number1 to 4 that the plaintiffs have number sought for decree against a particular defendant in respect of a particular portion of the property that the plaintiffs have number stated in their plaint as to in what capacity defendants number1 to 4 were in possession of the seven rooms that the plaintiffs have merely averred that they were in possession of one portion of the building and that the defendants were in occupation of the other portion of the building and, therefore, the plaintiffs had sought for a joint decree against all the defendants and companysequently on the demise of defendant number4 and on the plaintiffs failing to take steps to bring the LRs of defendant number4 on record, the entire suit stood abated.
In the present matter, we are companycerned with plaintiffs right to recover possession of the seven rooms.
Hence, this civil appeal.
That they were the partners of the Essanullah Company.
The trial Court further found that the deceased defendant number4 admittedly had let out the room in his possession to defendant number5, which indicated that defendant number4 was occupying a separate room out of seven rooms.
The lower appellate Court has been directed to deal with the rights of defendant number4 alone as the decree has been made against other defendants number1 to 3.
We do number find any merit in this civil appeal.
In the present suit, defendants number1 to 4 once again alleged that the suit properties belonged to all the heirs of Moosa Saheb and they denied that the suit property was self acquired property of Essanullah.
In this companynection, the trial Court placed reliance on the judgment and decree passed in the earlier suit number49 of 1973, which decree was passed by the Subordinate Judge, Thirupathur, North Arcot district, Tamilnadu, and which decree was affirmed by the appellate Court.
In the written statement, it was pleaded that the suit property was bought out of the income earned by M s Moosa Tobacco House and companysequently, the suit property was the property of the heirs of Moosa Saheb as tenants in common and number exclusive property of the deceased Essanullah, from whom the plaintiffs claimed title.
The trial Court further found that each of the four defendants had asserted their rights in respect of the seven rooms as tenants in common and they had asserted that they were in adverse possession having perfected their title to each of the seven rooms.
They gave a separate schedule to the plaint, which described the rooms in possession of each of the above defendants.
As stated above, in the present case, the only point for determination is whether the High Court was right in companying to the companyclusion that the suit against defendant number4 alone abated and that the entire suit did number abate?
In this companynection, the lower appellate Court further observed that the plaintiffs were number entitled to recover possession of the seven rooms from defendants number1 to 3 alone as there was numberevidence adduced by the plaintiffs as to the portion rooms in possession of defendants number1 to 3.
Further, plaintiffs sought possession of each of the rooms separately from each of the defendants vide paragraph number11 read with schedule B to the plaint.
The High Court also remitted the matter to the lower appellate Court as an application was made by the plaintiffs to bring the LRs of defendant number4 on record.
In the evidence, plaintiffs produced and proved the map Ex.
On above pleadings, the trial Court framed certain issues.
In 1973, after the demise of Essanullah, defendant number1 herein daughter in law of Moosa Saheb had instituted suit number49 of 1973 in the companyrt of Subordinate Judge, Thirupathur, North Arcot district, Tamilnadu for partition alleging that the property in question was number the self acquired property of Essanullah and that they belonged to all the heirs of Moosa Saheb.
Each of the seven rooms has been marked on the sketch tendered in evidence as B1 to B7.
L.J. 395?
Schedule B gave detailed description of the suit property.
They companyceded that defendant number4 had let out a portion to the 5th defendant in 1961 on rent.
That the relief sought for against the defendants was joint and inseparable and companysequently the entire suit stood abated on the demise of defendant number4 and on failure of the plaintiffs to bring the LRs of defendant number4 on record.
It was held that the property in schedule A including the seven rooms was self acquired property of Essanullah.
The decree passed by the trial Court in suit number49 of 1973 was companyfirmed in appeal.
KAPADIA, J. This appeal by special leave is filed by the defendants against the judgment and order of the Karnataka High Court dated 31st August, 1998 passed in S.A. No.76 of 1996 whereby the High Court allowed the second appeal and restored the judgment and decree of the trial Court decreeing the original suit filed by the respondents plaintiffs for declaration of title to property described more particularly in schedule A and for possession of seven rooms in possession of the defendants appellants herein, which seven rooms form part of schedule A and more particularly described as schedule B to the plaint.
