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Judgment
Das, J.—We must affirm the decree passed by the court below. The plaintiff obtained a decree against the defendant 1. His allegation is that in execution of that decree he recovered possession of the property but that he was subsequently dispossessed by defendants 1 and 2. On that allegation be instituted a suit for declaration of title and for recovery of possession. His allegation that he recovered possession but was subsequently dispossessed is disbelieved
The learned Judge in the court below has come to the conclusion that so far as the defendant No. 1 is concerned the plaintiff''s suit is barred by the provisions of section 47 of the Code and so far as the defendant No. 2 is concerned he must fail because he has not proved his title against him. Now the learned Vakil who appears on behalf of the appellant urges before us that section 47 is not applicable to his suit.
I am of opinion that items. His remedy was to proceed under the Code and if he was obstructed at all either by defendant No. 1 or defendant No. 2 he should have applied under Order XXI, rule 97, of the Code for investigation of the matter. The court would then have fixed a day for investigating the matter and would have summoned the party against whom the application was made for him to appear and answer the same.
Then the court would have passed an order either under rule 99 or rule 100 of Order XXI and that would have given a right to the plaintiff to sue the party successfully obstructing him. So far as the defendant No. 2 is concerned the learned Judge in the Court below has recorded a finding that the plaintiff has not established his title as against him.
This appeal must be dismissed with costs.
Adami, J.
I agree.