( 1 ) THIS second appeal has been referred to a Division Bench by Datar, J. , under the Proviso to S. 6 of the Mysore High Court Act, 1961, as his Lordship felt that this appeal involves a substantial question of law on which there is no ruling of this Court while the rulings of the former High Court of Mysore and of other High Courts on that question, are conflicting.

( 2 ) THE facts which led up to this appeal are briefly these: The appellants-plaintiffs had brought a suit, OS. No. 850 of 1954, on the file of the munsiff, Hassan, against respondent 1 (defendant 1) for possession of the suit property. Ultimately that suit was decreed in appeal in their favour. When they sought to obtain delivery of possession of the property in Ex. Case No. 85 of 1961, they were resisted by respondent 2 (defendant 2 ). Their application for removal of obstruction was dismissed in Mis. Case no. 68 of 1961 on 21-11-1962. Thereafter, they brought the present suit under Or. 21, R. 103 CPC. , for a declaration of their title of the suit property and for setting aside the order of the Munsiff in Mis. Case 68 of 1961.

( 3 ) BOTH the Courts below have concurrently held that the plaintiffs have proved that they are the owners of the suit property. But, on the issue whether the plaintiffs were in possession of the suit property within 12 years prior to date of the suit both the Courts below have held against the appellants. However, the appellants contended that the present suit brought under Or. 21, R. 103 CPC. , should be regarded as a continuation of the proceedings in Mis. Case No. 68 of 1961 and that hence the question whether the plaintiffs were in possession of the suit property within 12 years prior to the date of the present suit, would not arise.

( 4 ) THE short question that arises for determination in this appeal is, whether a suit under Or. 21, R. 103 CPC. , can be regarded as a continuation of the proceedings on an application under Or. 21, R. 98 CPC. , for removal of obstruction. It is unnecessary, in our opinion, to refer to decisions of several High Courts as there is a ruling of the Supreme Court on a similar question, namely, whether a suit under Or. 21, R. 63 CPC. , can be regarded as a continuation of proceedings on an application under Or. 21, R. 58 CPC.

( 5 ) IN Samai Singhai Nirmal Chand v. Union of India, AIR. 1966 SC. 1068 the Supreme court referred to the observations of the Privy Council in Phul kumari v. Ghanshyam Misra, ILR. 35 Cal. 202 PCand said thus at page 1071:"it would, we think, be unreasonable to extend the said observations to the present case and treat them as enunciating a proposition of law that for all purposes, a suit brought under Or. 21, R. 63 is either a continuation of the objection proceedings, or is a form of an appeal against the order passed in them. In our opinion, this extension is not justified, because the Privy Council could not have intended to lay down such a broad proposition. . . . . . . . . . . . . In this connection, we ought to bear in mind that the scope of the enquiry under Or. 21, R. 58 is very limited and is confined to question of possession as therein indicated while the suit brought under Or. 21, r. 63 would be concerned not only with the question of possession, but also with the question of title. Thus, the scope of the suit is very different from and wider than that of the investigation under Order 21, rule 58. "the above reasoning of the Supreme Court, is equally applicable to a suit brought under Or. 21, R. 103 CPC. The scope of the enquiry on an application brought under Or. 21, R. 98 CPC. , is limited to the question of possession, while a suit brought under Or. 21, R. 103 CPC. , would be concerned not only with the question of possession but also with the question of title. As a matter of fact, in the present suit the plaintiffs have also prayed for a declaration of their title of the suit property.

( 6 ) AS the present suit cannot be regarded as a continuation of the proceed

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