RAOJI APPAJI KULKARNI Vs. BADIBI

JUDGEMENT

(1.) This is a second appeal by the legal representatives of the original plaintiff against the decree passed by the Civil Judge, Belgaum in CA. No.434 of 1965, confirming the decree passed by the Joint Civil Judge JD., Chikodi in RCS. No.599 of 1050.

(2.) The plaintiff brought the suit for taking accounts and redemption of the mortgage deed dated 24-6-1879, produced in this case as Ext.65 under S.15(D) of the Deccan Agriculturists Relief Act, 1879. The property originally belonged to four brothers. Sakharam, Antaji, Appaji and Meleiri. They executed an usufructuary mortgage deed in favour of Nabisaheb, Khonmirasaheh and Imamsaheb on 24th June, 1879. Subsequently, one of the mortgagors Melgiri died and his line became extinguished The remaining three mortgagors executed a sale deed on 26th May, 1890 in favour of one of the mortgagees, viz. Nabisaheb for a sum of Rs.600 which document has been produced in this case as Ext.69. The sale deed was, however, not registered. Nabisaheb continued in possession in pursuance of the sale deed Ext.69. The plaintiff is one of the successors in interest of the original mortgagors. The plaintiff brought the suit for redemption of mortgage and for accounts under S.15(D) of the DAR. Act, on the basis that the mortgage evidenced by Ext.65 is still subsisting.

(3.) Defendants 1 to 6. the heirs of the original mortgagees, resisted the suit on various grounds. The principal contention taken by them was that they have perfected their title by adverse possession, as a result of which the equity of redemption in favour of the plaintiff has been extinguished long back. In support of this contention of theirs, they relied upon the unregistered sale deed Ext.69 dated 26th May, 1890. They contended that from the date of the said sale deed, the character of the possession was altered from that of mortgagees in possession to that of owner. They further contended that after the expiry of a period of 12 years from the date of the sale deed Ext.69, they perfected their title by adverse possession. Both the Courts accepted the contention of defendants 1 to 6 and held that they have perfected their title by adverse possession and that the equity of redemption in favour of the plaintiff has been extinguished long back. Consequently, both the Courts dismissed the plaintiff's suit.