BAROT CHHABAJI MOHANJI Vs. PATEL JOITARAM UMEDRAM

JUDGEMENT

(1.) This appeal is directed against the decree passed by the learned District Judge Mehsana in civil appeal No. 187 of 1966 by which he confirmed the decree passed by the Civil Judge Junior Division Vijapur in civil suit No. 34 of 1962. The facts of the above suit were in brief as under :- Barot Kedarji Sanklaji and his brother Barot Mohanji had mortgaged the fields described in the plaint to Umed Jividas and his brother Shivram by executing a mortgage deed in their favour on 3-6-1925. Shivram Jividas sold his rights in the mortgaged properties to his brother Umed on 17-649. As the mortgage was with possession Umed Jividas was in possession of all the fields from 17-6-1949. Defendant No. 1 Chhabaji Mohanji who is the son of Mohanji Sanklaji filed an application for the adjustment of debts and redemption of mortgage under the provisions of the Bombay Agricultural Debtors Relief Act (hereinafter referred to as the Act). Deceased Umed Jividas and his heirs had also filed applications under the above Act for the adjustment of debt and possession of a share in the fields. During the pendency of the above applications defendant No. 6 who is the son of Barot Kedarji Sanklaji sold 1 share of the family in the mortgaged fields to Umed Jividas on 31-1-1950. The B.A.D.R. Court held that nothing was found due on the mortgage and that the mortgage could be redeemed only as a whole and hence it directed that the possession of all the fields should be handed over to defendents Nos. 1 to 5 who are the heirs of original comortgagor Barot Mohanji. The plaintiffs who are the legal representatives of Umed Jividas filed the above suit for partition and recovery of possession of their 1/2 share in the suit also for mesne profits. The suit was resisted by defendants Nos. 1 2 3 and 5. Barot Ishwarji Kedarji who had sold 1/2 share of Kedarjis family in the suit fields to Umed Jividas was defendant No. 6 in the suit. Defendant No. 4 Manilal who is the granddon of Mohanji Sanklaji and defendant No. 6 did not come forward to contest the suit which was therefore heard exparte against them.

(2.) The learned Civil Judge allowed the plaintiffs suit and passed a preliminary decree for redemption and partition of the suit fields. He directed that defendants Nos. 1 1o 5 should give one half share in the suit fields to the plaintiffs by effecting partition and in case they failed to do so liberty was given to the plaintiffs to apply for a final decree for partition through the Collector. Mesne profits from 21st June 1961 onwards were also awarded to the plaintiffs.

(3.) Being aggrieved by the above decree defendants 1 to 5 preferred an appeal to the court of the District Judge at Mehsana. The learned District Judge dismissed the appeal and confirmed the decree passed by the trial court being aggrieved by the above decree defendants Nos. 1 to 5 have come in appeal.