MALLAPPA DHARMANNA BALAGAL Vs. SRIPATHIGURACHARYA GALAGALI

JUDGEMENT

(1.) The appellant in this appeal is the defendant in OS. No.63 of 1962 on the file of the II Joint Civil Judge, JD. at Bijapur. The plaintiffs instituted that suit for redemption and possession of the suit land and also claimed mesne profits from the year 1958-59 to 1960-61 and also for taking accounts. The claim of the plaintiffs was that the late Gurachar father of the plaintiffs 1 to 5 and husband of plaintiff-6 mortgaged the suit land bearing S.No.187 of Bableshwar village with possession by executing a self-deeming mortgage for a period of sixteen years. The deed of mortgage is registered and executed on 6-1-1942 and according to that mortgage deed, the defendant was to take the usufruct of the suit land for a period of sixteen years and hand over possession back to late Gurachar. As the defendant refused to deliver possession inspite of notice the plaintiffs instituted the suit.

(2.) The case of the defendant, on the other hand, is that he has been a tenant of the suit land for 30-35 years even prior to the mortgage of 1942 and he was tenant at the time of self redeeming mortgage of 1942. Therefore, after the expiry of the mortgage period of sixteen years his tenancy rights have revived and he is continuing as a tenant even after the expiry of mortgage period and therefore his possession is not unlawful. Therefore, the defendant submitted that the plaintiff is not entitled to mesne profits and cannot claim possession from him.

(3.) The trial Court framed several issues and the two material issues were these : (1) Whether defendant proves that he was a tenant on the suit land at the time of the suit mortgage of 6-1-1942? (2) Whether the tenancy rights are revived to the defendant after the expiry of the usufructuary mortgage by 6-1-1958? On consideration of the entire evidence, the Court held that the defendant was cultivating the suit land as a tenant at the time of the usufructuary mortgage of 6-1-942 and therefore the defendant has proved that he was a tenant of the suit land. The Court also held that having regard to the provision of S.25(A) of the Bombay Tenancy and Agricultural Lands Act, 1948, the rights of the tenants which were kept in abeyance were revived ;and therefore the plaintiffs were entitled to get a decree only for delivery of symbolical possession and not to actual physical possession. The trial Court also passed a decree for an amount of Rs. 255 as rent for three years.