NANI BAI Vs. GITA BAI KOM RAMA GUNGE

JUDGEMENT

(1.) This is a defendants' appeal by leave granted by the High Court of Judicature at Bombay, from the decision of that Court, dated 9th October 1950, in two cross-appeals from the decision of the Special Judge of the Special Tribunal Court at Mangalvedhe, dated 31st July 1946, in Special Suit No. 1322 of 1938. Of the two cross-appeals, the First Appeal No. 361 of 1948, by the appellants, was dismissed, and the First Appeal No. 363 of 1948, by the plaintiff, was allowed. The plaintiff-respondent had instituted another suit, being Suit No. 1894 of 1937, which was also tried along with Special Suit No. 1322 of 1938. The former suit stands dismissed as a result of the judgment of the High Court, and no appeal has been brought against that judgment to this Court.

(2.) The suit out of which this appeal arises (Special Suit No. 1322 of 1938), was instituted under the provisions of the Sangli State Agriculturists Protection Act, granting certain reliefs from indebtedness to agriculturists of that State which was then outside what used to be called "British India" The suit as originally framed, prayed for accounts in respect of two mortgages, though there were really three mortgages, to be described in detail hereinafter, and for possession of the lands comprised in those mortgages. Defendant 1 filed his written statement on 6th January 1940, contesting the suit mainly on the ground that the plaintiff had no title to the mortgaged properties in view of the events that had happened; that the mortgaged properties had been sold at auction and purchased by the defendant's father who, thus, became the full owner thereof; and that he had sold most of the properties to other persons who were holding those properties as full owners. Defendant 3 who also represents the original mortgagee, filed a separate written statement supporting defendant 1. Of the defendants who are transferees from the original mortgagees or their heirs, only defendant 8 filed his written statement on 26th March 1940, substantially supporting defendant 1's written statement and adding that he had purchased the bulk of the mortgaged properties after acquisition of full title by the mortgagees themselves more than 12 years before the institution of the suit, and that, therefore, it was barred by limitation.

(3.) The trial Court dismissed the suit by its judgment dated 26th November 1941, with costs. On appeal by the defeated plaintiff, the Special Bench of the High Court of Sangli State, by its judgment dated 13th June 1944, remanded the suit for a fresh trial after having permitted the plaintiff to amend the plaint so as to include the relief for redemption. It appears that during the pendency of the suit after remand, an application was made in February, 1945, for making substitution in place of defendant 2 who had died meanwhile, but the application was refused by the Court on the ground that the suit had abated as against that defendant. After re-framing the issues and re-hearing the case, the trial Court, by its judgment and decree dated 31st July 1946, dismissed the suit as against defendants 6 to 9 who were holding portions of the mortgaged properties by sale-deeds of the years 1919 and 1922, for more than 12 years, as barred by limitation under Art. 134, Limitation Act. The Court decreed the suit in respect of the mortgaged portion of R. S. No. 1735, having an area of 16 acres and 21 gunthas, as against defendant 3, and R. S. No. 334 against defendant 1's heirs. Each party was directed to bear its own costs throughout. From that decision, the defendants preferred a first appeal, being First Appeal No. 361 of 1948, and the plaintiff filed a cross-appeal, being First Appeal No. 363 of 1948, in the High Court of Judicature at Bombay . Both the appeals were heard together along with two other cross-appeals arising out of the other suit mentioned above. The High Court, by its judgment and decree dated 9th October 1950, dismissed the defendants' appeal No. 361 of 1948, and allowed the plaintiff's appeal No. 363 of 1948, with costs, holding that Art. 148 and not Art. 134, Limitation Act, applied to the suit, and that, therefore, it was not barred by limitation. In the result, the plaintiff's suit was decreed in its entirety. Hence, this appeal by the defendants.