1. The plaintiffs in O.S. No. 215/2002 on the file of III Addl. Civil Judge (Jr. Dn.), Dharwad, has come up in this second appeal impugning the concurrent finding of both the Courts below in dismissing their suit for declaration and granting only the relief of permanent injunction with respect to suit schedule property.

2. The brief facts leading to this second appeal are that the plaintiff no.1 is the widower of Smt. Channavva and plaintiffs 2 to 4 are the children of plaintiff and deceased Channavva. Admittedly the suit schedule property is the property of Channavva which was given to her by her biological mother Smt. Rajbi. The relevant facts which are to be referred at this stage is that the 1st plaintiff’s wife Channavva earlier belonged to Islamic religion and her maiden name was Hasanbi and she was the daughter of Rajbi. Admittedly the suit property was originally belonged to 1st plaintiff’s mother-in-law Rajbi. When Rajbi’s daughter Hasanbi got converted to Hinduism and got married to 1st plaintiff, her mother Rajbi transferred the suit schedule property in favour of her daughter Hasanbi @ Channavva by giving a wardi that the suit schedule property is transferred to the name of her daughter.

3. Thereafter it is seen that the said property continued to be the property of Channavva Nee Hasanbi until her death. After the death of Channavva succession opened for title to the suit property. The plaintiffs 1 to 4 herein being the husband and children of Channavva have come up in O. S. No. 215/2002 for the relief of declaration that they are the legal heirs of deceased Channavva and as such they have succeeded to suit property under the provisions of Hindu Succession Act, 1955.

4. It is seen that earlier the 1st defendant in the original suit namely Hussainsab Fakirsab Agasar who claims to be the brother of Hasanbi tried to claim the suit property seeking transfer of khata in his name. It is seen that he al so initiated a proceedings in O. S. No. 388/1998 on the file of Civil Judge (Jr. Dn.), Dharwad, seeking relief of declaration that he being the closest relative of deceased Channavva Nee Hasanbi, the suit schedule property would devolve upon him and not on other persons. It is seen that in the said suit though he admitted that Hasanbi was converted into Hindu religion and renamed as Channavva, he did not implead the husband and children of Channavva in the said suit. In the said suit though the husband and children of deceased Channavva filed an application seeking permission to get themselves impleaded, the same was rejected and consequently the suit of the plaintiff Hussainsab Agasar was decreed in his favour by decreeing O.S. No. 388/1998.

5. It is thereafter the present suit is filed by the appellants herein seeking declaration that they are the legal heirs of deceased Channavva and as such they have succeeded to the suit schedule property. In the said suit they have impleaded the plaintiff in O.S.No.388/1998 and contended that the judgment which is obtained by him behind their back would not enure to his benefit. It is seen that in the said suit the 1st defendant entered appearance and filed written statement denying that the plaintiffs have right to succeed to the property based on Rule 223(1) of Mohammedan Law governing succession and inheritance. Based on the pleadings of both the parties in the said suit the trial Court framed the following issues.

ISSUES

(i) Whether the plaintiffs prove that they are the surviving legal heirs of deceased Hasanbi @ Channawwa?

(ii) Whether the plaintiffs prove that the defendant no. 1 is causing obstruction to their peaceful enjoyment and wahiwat of suit schedule property?

(iii) Whether the defendant no. 1 proves that the suit of the plaintiffs is hit by res-judicata?

(iv) Whether the plaintiffs are entitled for the relief as sought for?

(v) What order or decree?

ADDITIONAL ISSUES

(i) Whether the suit of the plaintiffs is suffering from non joinder of necessary parties as contended