BALA Vs. SHIVA

JUDGEMENT

(1.) The plaintiff, Bala bin Pandu Devkar, brought this suit to redeem the lands in dispute, alleging that their owner, Rama Mahadu Surve, had mortgaged them to Govind Lakshman BhoBle, father of defendant No. 1 and grandfather of defendants 2 and 3, about forty-five years ago, for Rs. 100; that the period fixed for redemption was ten years; and that the mortgagor Rama's heirs had sold the equity of redemption to the plaintiff.

(2.) There were twelve defendants brought on the record. Of them defendants 4, 7, 8 and 9 contended that the property had come into the possession of their ancestor Dhonda Balkoji for Rs. 500 in A.D. 1788 and that since then their family had been in possession. They denied the mortgage sued upon and pleaded limitation. Defendant No. 12 claimed two of the lands in suit under a mortgage from defendant No. 1 and his father. The other defendants raised no defence.

(3.) Defendants Nos. 1 to 10 and defendant No. 13 are descended from one ancestor. The Subordinate Judge following the principle laid down in Balaji V/s. Babu (1868) 5 Bom. H.C.R. (A.C.J.) 159 Ramchandra V/s. Balaji (1884) 9 Bom. 137 and Parmanand V/s. Sahib Ali (1889) 11 All. 438 held the mortgage alleged by the plaintiff proved, He based his finding, firstly, on an admission made by Govind, father of defendant No. 1. contained in Exhibit 56, that the dhara of Rama bin Mahadu Surve was in the possession of his family under a mortgage: secondly, on an admission of defendant No. 1 in Exhibit 30 that one of the lands in suit was in his possession under a mortgage; thirdly, on oral testimony; and, fourthly, on the fact that the lands still stood in the revenue records in the name of Rama Mahadu Surva's heir. Accordingly, the Subordinate Judge passed the usual decree for redemption. In appeal, the First Class Subordinate Judge, A.P., has reversed that decree, holding that the mortgage sued on is not proved.