The suit does not abate against remaining defendants upon the death of one defendant if their interests are distinct and separate.

JUDGMENT

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 R.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.

The short point which arises for consideration in this civil appeal is \026 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").

The facts giving rise to this civil appeal are as follows:\027 Plaintiffs are the wife and children of Essanullah.

They inter alia filed suit no.417 of 1979 in the court 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. In the present matter, we are concerned with plaintiff’s right to recover possession of the seven rooms. 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 no.3) and K.M. Obeidulla (defendant no.4). In 1973, after the demise of Essanullah, defendant no.1 herein (daughter-in-law of Moosa Saheb) had instituted suit no.49 of 1973 in the court of Subordinate Judge, Thirupathur, North Arcot district, Tamilnadu for partition alleging that the property in question was not the self acquired property of Essanullah and that they belonged to all the heirs of Moosa Saheb. She was supported by defendants no.2 to 4. However, that suit was dismissed. 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 no.49 of 1973 was confirmed in appeal. 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.

In the present suit, defendants no.1 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. They pleaded that Moosa Saheb had started business in tobacco. That Moosa Saheb died on 6.3.1948. On his demise, his heirs continued the business as family business. The business was run in the name and style of Moosa Tobacco House and after the death of Moosa, the tobacco business continued in the name and style of K.M. Essanullah & Company. It was pleaded in the written statement that all the heirs of Moosa Saheb were tenants-in-common. That they were the partners of the Essanullah & Company. 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 consequently, the suit property was the property of the heirs of Moosa Saheb as tenants-in-common and not exclusive property of the deceased Essanullah, from whom the plaintiffs claimed title. 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.

They conceded that defendant no.4 had let out a portion to the 5th defendant in 1961 on rent. However, at the same time