APAYA DUNDYAPPA Vs. GOVIND DATTATRAYA

JUDGEMENT

(1.) THIS is an appeal arising from a suit which has been filed by the plaintiffs who had purchased the property for defendant No. 1 on 6-9-1945. It appears that prior to the plaintiff's purchase there was litigation between defendant No. 1 and defendant No. 2 with regard to the property in suit, and defendant No. 1 obtained a decree for possession of the lands in suit as against defendant No. 2 in the year 1932. In the year 1940 defendant No. 1 made an application for execution of this decree joining as parties to the execution application defendant No. 3 and his sons defendants Nos. 4 and 5 also upon an allegation that in the year 1928 defendant No. 3 appeared to have taken a Thev Patra from defendant No. 2. Notices of the application for execution were served upon defendants Nos. 3 to 5; but they took no notice whatsoever of the application for execution. It was then held that the Thev Patra which had been taken by defendant No. 3 had to take subject to the result of the suit which had been filed by defendant No. 1 against defendants No. 2, because the doctrine of lis pendens applied. Possession was consequently given to defendant No. 1 on 2-6-1942. The plaintiffs' purchase was subsequent to that.

(2.) THE plaintiffs filed the suit from which the present appeal arises not against defendants Nos. 1 to 5 but also against the other descendants of defendant No. 3 so as to leave no defect of parties to the suit. Defendant No. 1 remained ex parte. Defendant No. 2 claimed that the lands belonged to him; that the decree in the suit filed by defendant No. 1 was obtained by fraud; that the sale deed taken by the plaintiffs was bogus; that defendant No. 2's sons should be brought on the record, and that defendant No. 1 had not come into possession on 2-6-1942. Defendant No. 3 died pending the suit, and the principal contention of his descendants, that is, defendants Nos. 4 to 8 was that the decision in the darkhast of 1940 was not binding upon them, especially as defendants Nos. 6 to 8 were not parties to the darkhast. They also denied that there was any Thev patra and claimed that they had become owners of the land in suit by adverse possession. Pending the suit the plaintiffs gave notice to defendant No. 3 to produce the Thev patra, but defendant No. 3 did not produce it. Thereupon the plaintiffs tendered a certified copy of the Thev Patra in evidence. In order to prove it, he examined one of the attesting witnesses, but he failed to prove that the document was attested. Thereupon the learned trial Judge held that the document was in the first instance not proved to have been executed. He therefore declined to admit the document into evidence. In the second instance, he came to the conclusion that the document was a bogus document obtained by defendant No. 3. Then finding that defendant No. 3 was in possession since at any rate from 1920, he said that defendant No. 3 had become owner of the land in suit by adverse possession for more than 12 years. This adverse possession had ripened into title by 1932. Consequently any possession which defendant No. 1 obtained in execution of his decree in the year 1942 was of no use to defendant No. 1 or to the plaintiffs.

(3.) THE plaintiffs have come in appeal, and It appears to me in the first instance that the learned trial Judge was in error in holding that the plaintiffs had failed to prove that the document was attested as required by law. It has been contended on behalf of the plaintiffs that in the first instance the document is not a mortgage and consequently it was not necessary that the document should have been attested. But this contention does not seem to be correct. The document obviously is not a lease, for the reason that the executant, namely, defendant No. 2 says, that he had obtained the amount of the document, namely, Rs. 1000 'upon his land'. In the second instance, even though there 13 a period of 10 years mentioned in the document for which defendant No. 3 was to pay what i9 called Khand or rent to defendant No. 2, defendant No. 3 was not to hand over possession of the land to defendant No 2, at the end of that period. On the contrary, defendant No. 3 was to remain in possession till at some Padva (Hindu New Year day) succeeding to the Padva which came at the end of the tenth year. Defendant No. 2 paid back to defendant No. 3 the amount of the consideration of the Thev Patra, namely, Rs. 1000. It is obvious consequently that the document created usufructuary mortgage. It may be that there was no right in defendant No. 3 to bring the property to sale; he had got a right to remain in possession of the property until the amount of Rs. 1000 was paid off. The property, therefore, was made security for the repayment of the money, and the transaction was obviously consequently a mortgage.