GANGARAM MADHAV AHIR Vs. DWARKIBAI

JUDGEMENT

(1.) This second appeal arises out of a plaintiffs suit for possession of land bearing Khasra No. 208 measuring 0.37 acres situated in Mouja Borawa and in respect of which the plaintiff held a Patta. According to the plaintiff she had mortgaged the land in question with defendant No. 1 under a deed of usufructuary mortgage dated 12-9-1923 and had given over possession only of a portion of the mortgaged property measuring 0.17 acres. The defendant No. 1 had filed a suit against her in the Munsiff's Court at Mandleshwar on the basis of that mortgage and had secured a decree on 30-4-1937. The decree directed her to pay Rs. 100/- to defendant No. 1 by 30-6-1937 and on her failure to do so the mortgaged property might be sold and the defendant No. 1 might be awarded Rs. 100/- out of the sale-proceeds thereof. She failed to pay Rs. 100 as directed in the decree and a final decree for sale therefore was passed on 26-9-1938. The decree remained unexecuted for over 12 years and defendant No. 1's right to file execution for sale of the mortgaged property came to an end on 25-9-1950. She, according to her, had become entitled to possession of the said property. She therefore on the basis of the aforesaid allegations claimed possession of the land measuring 0.17 acres which, according to her, was in defendant's possession in pursuance of the mortgage. Defendant No. 2 who is the brother of defendant No. 1 was impleaded on the ground that the disputed property is in actual possession of both of them.

(2.) Defendants Nos. 1 and 2 contested the plaintiff's case on various grounds, including the extent of the property said to be in their possession in pursuance of the mortgage.

(3.) The trial Court dismissed the plaintiffs suit as not maintainable. He also gave findings with regard to the other issues that were raised in the case. For the purpose of the present appeal it is not necessary to refer to all those findings.