A suit for possession can be maintained without a prior declaratory judgment if the property is recognized as joint family property under prior rulings.

JUDGMENT :

(H.P. SANDESH, J.)

1. This matter is listed for admission. Heard counsel for the appellant and also the learned counsel for the respondents.

2. This second appeal is filed against the concurrent finding of the Trial Court as well as the First Appellate Court.

3. The factual matrix of case of the plaintiffs before the Trial Court in O.S.No.70/2008 that they are entitled to recover the possession of suit schedule property in pursuance of judgment passed in O.S.No.66/1993 and O.S.No.14/2003 since the Court has declared that the suit schedule properties are the joint family properties. The defendant No.1 appeared and filed the written statement contending that suit itself is not maintainable and also contend that this Court has no pecuniary jurisdiction to try the suit and also took the defense that the suit is bad for non-joinder of necessary parties and also suit is barred by limitation.

4. The Trial Court having considered the grounds which have been urged in the suit as well as the contentions raised by the defendant framed the issues and allowed the parties to lead evidence. The plaintiff No.1 got examined himself as P.W.1 and got marked document Ex.P.1 to Ex.P.28 and also examined one witness as P.W.2. On the other defendant is examined himself as D.W.1 and got marked document Ex.D.1 to Ex.D.41. The Trial Court having considered the material on record and also considering the judgment passed in O.S.No.66/1993 and O.S.No.14/2003 comes to the conclusion that already decision was taken with regard to property is a joint family properties and plaintiffs are entitled for recovery of the possession of the scheduled property in pursuance of the judgment and decree and all other issues which have been framed in view of the defense taken by the defendants were answered as negative and partly decreed the suit in directing the defendant No.1 to hand over the possession of the suit schedule property to the family of the B.L.Thimmaiah and Billavara Lingappa without mesne profits, the same is challenged before the Appellate Court in R.A.7/2019.

5. The Appellate Court having taken note of the grounds which have been urged in the appeal and also the oral and documentary evidence available on record, formulated the point whether the suit filed by the plaintiff seeking the relief of possession without seeking the relief of declaration is maintainable and also whether the plaintiffs are entitled for the possession of the suit schedule property and once again point for consideration for non-joinder of necessary parties was also considered and whether it requires interference of finding of the Trial Court.

6. The First Appellate Court having re-assessed the material available on record and also considering the grounds, comes to the conclusion that suit is maintainable without seeking the relief of declaration and also negatived the ground which have been raised in the appeal also with regard to the non-joinder of necessary parties and confirmed the judgment of the Trial Court and dismissed the appeal.

7. Being aggrieved by the concurrent finding, the present second appeal is filed before this court. The main contention of the counsel appearing for the appellant would vehemently contend that when the appellants are claiming right based on the document of Ex.D.19 and Ex.D.37 and non-examination of those rendered a gross negligence and also counsel who vehemently contend that the theory of res judicata doesn't arise in the place as there was no issue, adjudication, reasonings and not even whispered about the existence of document Ex.D.19 and Ex.D.37.

8. The counsel also vehemently contend that when the