N. D. VENKATESH, J. ( 1 ) THIS second appeal has arisen out of a common judgment dated 28-8-75 in r. A. Nos. 96 and 111 of 1974 on the file of the Civil Judge, Rajchur. Those two appeals had been preferred by the respondent and appellant herein respectively in that court against the judgment dated 31. 8. 74 of the Munsiff kustagi, in O. S. No. 47 of 1972 on his file. ( 2 ) APPELLANT, Mallawwa, was the plaintiff, and respondent, Balappa, was the defendant in the said suit. ( 3 ) IN the suit she had filed Mallavva had claimed the following three reliefs in respect of 8 acres 26 guntas of agricultural land comprised in Sy. No. 11/2 of Village Timmanahatti, Kushtagi taluk: (i) a declaration of her title; (ii) a permanent injunction against the defendant not to interfere with her possession and enjoyment of the said land; and (iii) a direction to the authority concerned to bring her name as the owner of that land in the record of rights maintained under the Land revenue Act cancelling the name of the defendant shown therein as against this number as the kathedar. ( 4 ) HER case was and continues to be that her husband Kalakappa Hunakunti was the owner and in possession of this land till his death in 1954; that after his death she had succeeded to this land and other family properties as absolute owner and was in possession; that the defendant had absolutely no manner of right, title, or interest over this land; and that, in spite of that in collusion with the local revenue officials, had got his name entered as the pattadar in respect of this land in the concerned revenue- records andi was trying to interfere with her possession and cultivation of the same. ( 5 ) THE defendant, Balappa, resisted the suit denying the claim that Mallavva was the owner and in possession of the land and further pleaded in his written statement that he was the owner-in-possession of the same; that his father had purchased this land under an oral sale from the husband of the plaintiff in 1336f for a sum of rs. 3,000, that after the aforesaid sale, his father was in possesion and thai after his death, about 20 years ago succeeding to his estate he, the defendant, was in possession and enjoyment of the land in question in his own right; that in 1956 Mallawa had tried to interfere with his possession of the land and, therefore, he had filed a suit in O. S. No. 196/1 of 1956 claiming an injunction against her and that, on being notified she having appeared in court, had filed a written statement admitting his claim; and that, in the circumstances, she was estopped from challenging his title or possession. He had denied the allegation that, in collusion with the local revenue officials, he had got his name falsely entered in the revenue records as against this number as the owner. ( 6 ) THE plaintiff subsequently, with the permission of the court, got her plaint amended seeking an additional relief, it being, a declaration that the decree in O. S. No. 196/1 of 1956 said to have been obtained by Balappn against her was vitiated by fraud, undue influence, and misrepresentation. ( 7 ) IN view of these pleadlings the learned Munsiff had framed the following seven issues:"1. Whether the plaintiff proves that she is the lawful owner of the suit land? 2. Does she further prove that she is in lawful possession of the suit land on the date of the suit? 3. Does she further prove that the defendant caused interference as alleged?? 4. Whether the plaintiff proves that the decree in O. S. No. 196/1 of 1956 is void and the same is vitiated by fraud, undlue influence, and misrepresentation? 5. Whether the plaintiff proves that she is entitled for the cancellarion of decree in O. S. No. 19611 of 1956 and also for the cancellation of the entries in the revenue records? 6. Whether the suit is barred by limitation ? 7. What decree or order?"mallavva examined herself besides examining four witnesses and got marked Exs. P-1 to P-6. The defendant examined himself and 2 witnesses on his side and brought on record 5 documents, Exs. D-1 to D-5. After hearing the parties the Munsiff answered issues Nos. 6. Whether the suit is barred by limitation ? 7. What decree or order?"mallavva examined herself besides examining four witnesses and got marked Exs. P-1 to P-6. The defendant examined himself and 2 witnesses on his side and brought on record 5 documents, Exs. D-1 to D-5. After hearing the parties the Munsiff answered issues Nos. 1 to 3 and 5 in favour of the plaintiff and issue No. 4 against her and issue No. 6 against the defendant and granted a decree as sought for by her. ( 8 ) BALAPPA preferred R. A. No. 96 of 1974 challenging the decree against him, R. A. No. 111 of 1974 was filed by Mallavva challenging the finding of the Munsiff on the 4th issue before the Civil Judge, Raichur. ( 9 ) INCIDENTALLY it may be relevant to note that the parties are close relations. Mallavva is none other than the elder sister of the plaintiff's mother. The plaintiff and the defendant were living together jointly for a long number of years. In his evidence Balappa (D. W. 1) states at para-16 as follows :"levy is being paid since 2 or 3 years in our village. I have paid the levy in respect of the suit land. Those receipts are in possession of the plaintiff. As we were living jointly so those receipts are in possession of the plaintiff. From the date of sale till the institution oi this suit I was living jointly with the plaintiff. After the institution of this suit I am living separately". Then, at para-37 he states:"my father had property at Paramanahatti. . . . . . My brothers are looking after that properly there. My father diedi at Paramanahatti. I was not present at Paramanahatti when my father had died. 12 years before the death of my lather I had come to Badimanhal to live with the plaintiff (para-38) i was living jointly with the plaintiff till I filed O. S. No. 196/1 of 1956. . . " (para 39 ). At the time when he gave evidence (on 21-8-74) he was about 40 years. At that time the plaintiff Mallawa was 60 years old. ( 10 ) THE Civil Judge allowed Balappa's appeal and set aside the judgment a nd decree of the Munsiff in toto and dismissed Mailavva's suit. Consequently he dismissed Mallavvas appeal. . " (para 39 ). At the time when he gave evidence (on 21-8-74) he was about 40 years. At that time the plaintiff Mallawa was 60 years old. ( 10 ) THE Civil Judge allowed Balappa's appeal and set aside the judgment a nd decree of the Munsiff in toto and dismissed Mailavva's suit. Consequently he dismissed Mallavvas appeal. ( 11 ) AS already stated, the finding of the Munsiff is that the plaintiff Mailavva was in possession of the land. It is interesting to note that the Civil judge also comes to the same conclusion. In para-15 of his judgment he states as follows:"even though the plaintiffs in possession of the suit land, she cannot be awarded injunction against the defendant against whom she has no better title and, therefore ner prayyer in respect of injunction, also cannot be granted. " ( 12 ) THE concurrent findings of both the courts thai Mailavva has been in possesssion of the land in quesition is a findnig based on appreciation of facts, and that imding has to remain. ( 13 ) THIS second appeal has to be disposed of having due regard, to the concurrent findings of both the courts that Mailavva has been in possession of the land in question. The first appellate court holds that Mallavva does not have title, but, in deciding that question, the nature of possession of land, as to who is in possession, and since how long, are matters that would be very relevant. Unfortunately, and perhaps in view of the pleadings, the courts below have not focussed their attention on these very relevant aspects of the matter. ( 14 ) IN M. Kallappa Setty v. M. V. Lakshminarayana Rao (1) the plaintiff had claimed a declaration of his title and a permanent injunction agamt the defendant. This court had dismissed the plaintiffs suit on the sole ground that he had not satisfactorily proved his title. The trial court and the first appellate court had concurrently held mat the plaintiff was in possession of the suit properly. This court felt that, in the circumsiances the plaintiff having come into possession subsequent to the sale-deed, referred to by the plaintiff, was not a relevant circumstance. The trial court and the first appellate court had concurrently held mat the plaintiff was in possession of the suit properly. This court felt that, in the circumsiances the plaintiff having come into possession subsequent to the sale-deed, referred to by the plaintiff, was not a relevant circumstance. In the background of the tacts of that case Hegde, j. , has been pleased to observe as follows:"so far as the question of possession is concerned, as mentioned earlier, bath the trial court and the first appellate court have accepted the plaintiff's case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff "after the sale deed in his favour is not a relevant circumstance". The plaintiff can on the strength of his possession resist interference from persons who have no better title than, himself to the suit property. Once it is accepted as the trial court and the first appellate court have done that the plaintiff was in, possession of the property ever since 1947, then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession the plaintiff was entitled to the second relief asked for by him, even if he had failed to prove his title satisfactorily. Therefore, in our opinion, the high Court was not right in interfering with the judgment of the trial Court as affirmed by the first appellate court regarding relief No. 2. 14. Now coming to relief No. 1 the plaintiff cannot obtain that relief unless he satisfies the court that he has good title to the suit property. The High Court has come to the conclusion and with that conclusion we agree, that on the material on record, it is not possible to come to the conclusion that the plaintiff has satisfactorily established his title to the suit property, hence he is not entitled to relief no. 1. Ordinarily under these circumstances we would have remanded the case for deciding the question of title afresh. 1. Ordinarily under these circumstances we would have remanded the case for deciding the question of title afresh. But this litigation has gone on for a long time and property in dispute was purchased for Rs. 100. Under these circumstances, it is in the interest of the parties to keep open the question of title to be agitated by the parties if they so desire in a fresh proceeding and confirm the decree of the trial court in respect of relief No. 2 and set aside its decree in respect of relief no. 1. As we specifically keep open the question of title, it will not be open to the plaintiff or his representatives or successors to resist any suit the defendant or his representatives or successors may bring in future for possession of the suit property on the basis of their title either on the ground of res judicata or O. II Rule 2. In the result we allow this appeal in part and decree the plaintiff's suit in respect of the second relief asked ior by him in the plaint but dismiss the suit in so far as the first relief is concerned. . . " (Paras 5, 6 and 7 ). Now, as observed by the Supreme court that in a suit seeking declaration of title re: an immoveable property, question of possession or as to who, between the rival contenders, was in possession at the time of suit is of great importance. A person claiming a declaration of title in respect of a lands or house in order to succeed, i e. , to obtain such a declaration at the hands of the Court, has to show his source of title and has also to establish that he was in possession or enjoyment of the suit property within 12 years prior to his suit. In this case how can courts hold that the defendant has a better title to the suit property than the plaintiff? In order to say so, is it not necessary to find out both his (defendant's) source of title and the fact that he was in possession within 12 years prior to suit? Well, the defendant might not be seeking a declaration but is merely resisting the claim of the plaintiff in the suit. In order to say so, is it not necessary to find out both his (defendant's) source of title and the fact that he was in possession within 12 years prior to suit? Well, the defendant might not be seeking a declaration but is merely resisting the claim of the plaintiff in the suit. But, in a case like this where he is found to be out of possession as on the date of suit and the plaintiff is found in possession, courts should not hazard a guess on the question of title inter se, but should leave it to be separately fought out. If a plaintiff in has suit, in order to succeed on title, has to show both his source of title and possession within 12 years, why make a concession, may be of a negative type in favour of defendant to non-suit the plaintiff saying that he (the plaintiff) had not established better title than defendant as if the Court had found his (defendant's) title remaning in tact on the date of suit. ( 15 ) HAVING carefully considered the issues involved in the light of the facts found I am of the view that the question of title will have to be kept open but without denying the plaintiff's claim for an injunction. This is in view of the fact that she has been in possession of the property and there is nothing on record to show that she had gained possession by any unfair means just prior to the suit. ( 16 ) FOR the reasons aforesaid this appeal is allowed and the judgment and decree ot the first appellate court is set aside. The judgment and decree of the Munsiff is also set aside in its place there shall be a decree on the following terms: the plaintiff's suit is decreed in part. She is granted a permanent injunction as sought for in the plaint. The question of title to the property is kept open. Either party is at liberty to take such steps as they may deem fit to establish their title re: the property in question and to claim any consequential reliefs thereunder. Findings on other claims of the plaintiffs not given, as the same are not necessary. ( 17 ) PARTIES are directed to bear their own costs throughout. --- *** --- .