VINAYAK KESHAV GULVE Vs. BALA SHIVRAM HINGNE

JUDGEMENT

(1.) THE plaintiff sued for possession of the suit property on the ground that he had purchased it from one Shripati on the 7 February 1916. THE suit property together with certain other property was once in the ownership of Tabaji, who will be found at the head of the pedigree at p. 1 of the print. THE property was mortgaged in 1880 by Shivram the son and Bhau the grand-son of Tabaji. In 1882, Shivram redeemed his share while Bhau continued the mortgage by a fresh mortgage, Exh. 38. If the property was claimed to be joint and remained joint, so that Bhau's mortgage was a mortgage of an undivided half, then it could be said that Shivram and Bhau were tenants-in-common. But that is not the case which has been made out by either side. Clearly the title to half the property which was mortgaged by Bhau remained in Bhau, and the evidence shows that Shivram got possession of his half share. Thus the title remained in Bhau. THE mortgagee, who was called as a witness, no doubt was unable to say when the mortgage was redeemed, but it is found that the mortgage has been redeemed. THEre can be no question of adverse possession unless the defendants had come into possession not only against the mortgagor, but also against the mortgagee. But they have not been able to prove that that is what has happened. It seems to me that the appellate Court in reversing the decree of the lower Court has attached too much importance to the question of boundaries, although the learned Judge was satisfied that the disputed portion in this suit was in area about half of the land mortgaged in 1880, and that its assessment was about the half of what was then paid by the family. It seems, therefore, an inevitable deduction that the suit property is the share in the joint property which fell to Bhau after Shivram had redeemed half the joint property. THEre is no reason why Shivram's family who are admittedly in possession of one-half should now seek to claim the other moiety without definitely proving that they had been holding that moiety adversely against the world for twelve years. I think, therefore, that the onus lay on the defendants to prove that the plaintiff having proved title was not entitled to possession of the suit property. THErefore, the appeal must be allowed, the decree of the lower appellate Court set aside, and that of the trial Court restored with costs in this Court and the Court below.

(2.) INQUIRY as to mesne profits from the date of this Court's decree for three years or until possession is given.