BACHARAM DHONDI KATKAR Vs. LAXMAN ANANDRAO KATKAR

JUDGEMENT

(1.) THIS appeal raises a short but interesting question i. e. whether a mortgagee or assignee of mortgagee can recover actual possession of mortgage property, in the facts of the present case, from the mortgagor or purchaser who has taken forcible possession of the mortgaged property? A few facts which are necessary for understanding and appreciating the point involved in the matter are as follows:---

(2.) THERE were 8 properties which were owned by one Rajaram i. e. the father of defendants 2 and 3. The said Rajaram effected a mortgage by conditional sale dated 20th July, 1936 for Rs. 1,500/- in favour of one Shankarlal Marwari. It was mortgaged for a period of 5 years and produced at Exhibit 79. The said Shankarlal Marwari in turn effected an assignment of the rights of the mortgagee in favour of one Harisaheb Jadhav by Deed dated 23rd August, 1938. It was also for Rs. 1,500/- and the Deed is produced at Exhibit 80. The said Harisaheb expired sometime in 1948 without having any issue or wife. He left behind his sister by name Krishnabai. The plaintiffs are the sons of the said Krishnabai. Krishnabai stepped in the shoes of Harisaheb and after the death of Krishnabai, the plaintiffs have stepped in her shoes. Sometime in 1966, defendants 2 and 3 forcibly took possession of 4 lands i. e. suit lands out of the said 8 lands which were originally mortgaged. Defendants 2 and 3 in turn sold those 4 lands to defendant No. 1 by a registered sale deed dated 24th April, 1967 for Rs. 4,500/ -. The plaintiffs thereafter filed the suit on 25th September, 1967 on the basis of their title and claimed possession of those suit properties from the defendants.

(3.) THE plaintiffs inter alia alleged that there was a mortgage by conditional sale for a period of 5 years and the mortgagee was put in possession. There was assignment of those mortgagee rights. The plaintiffs were deprived of their possession illegally in 1966 and defendants 2 and 3 colluded with defendant No. 1 and sold the suit lands to defendant No. 1. Therefore, it was alleged that they were entitled to get possession because of their title. It was claimed that they stepped in the shoes of Harisaheb and were entitled to the lands and the possession thereof. Written statement came to be filed on behalf of defendant No. 1 and inter alia it was contended that the plaintiffs were having no title to those lands. It was further contended that he was put in possession lawfully as lesses in October 1966 and thereafter in 1967, the said lands came to be purchased by him from the defendants 2 and 3. It was further contended that the plaintiffs were not entitled to get actual possession of the lands. At the most they were having right of for enclosure and to get back mortgage money.