TALUKDARI SETTLEMENT OFFICER Vs. AKUJI ABHRAM MUSE

JUDGEMENT

(1.) The suit was filed by the plaintiff as Talukdari Settlement Officer and manager of the estate of Naharsangji Mehramansingji, the Thakor Saheb of Dehevan, to get possession of certain survey numbers alleged to belong to the Talukdari estate. The suit property had been mortgaged in 1859 by the then Talukdar to the predecessors-in-title of defendants Nos. 1 to 7. It seems that they partitioned amongst themselves the suit property, and dealt with the suit property as if they were owners, executing various mortgage deeds between 1895 and 1906 which resulted in 16 acres and 241/2 gunthas becoming mortgaged to defendants Nos. 8, 9 and 10, while 1 acre and 121/2 gunthas of the suit property remaining in possession of the second defendant, The Judge found that defendants Nos. 8 to 10 had been in possession for more than twelve years after the lands had been mortgaged to them, although there seems to be an error with regard to the mortgage of 1906 which was less than twelve years before suit. As the defendants Nos. 1 to 7, mortgagees of the Talukdars, represented that they were owners, defendants Nos. 8 to 10 were entitled to rely upon that representation for the purposes of Art. 134 of the Second Schedule to the Indian Limitation Act. The rights of defendants Nos 8 to 10 to whom defendants Nos. 1 to 7 executed mortgages would be established after twelve years as against the Talukdar, and if he wished to redeem and recover possession of the properties, he would have to pay defendants Nos. 8 to 10 the amount due on the mortgages with regard to which they had been in possession for more than twelve years. The Judge found that the plaintiff's claim to get possession from defendants Nos. 8 to 10 was bad for misjoinder of causes of action, and dismissed the suit with regard to those defendants. The only result of that would be that the plaintiff will have to file another suit against those defendants to recover possession. But in our opinion the Judge's decision was wrong. There is no reason why the plaintiff should not join defendants Nos. 8 to 10 in a suit against defendants Nos 1 to 7. As he was endeavouring to get possession of all the suit properties, and the only result of defendants Nos. 8 to 10 establishing their claims under Art. 134, would be that the plaintiff, in order to get possession of the lands mortgaged to them, would have to pay the amount due on the mortgages executed by defendants Nos. 1 to 7, there is no reason why all those questions should not have been decided in one suit.

(2.) Then the Judge has allowed the plaintiff to redeem the plaint lands remaining in possession of defendant No. 2 on payment of Rs. 95 within six months.

(3.) The plaintiff appeals against that part of the decree on the ground that he issued notice under Section 29B of the Gujarat Talukdars Act, and no answer to the notice was received within six months allowed by that section. The Judge says: In so far as defendants 1 to 7 are concerned it is clear that during the life-time of the father of the plaintiff the estate was in the hands of the Talukdari Settlement Officer. He had sent for the original mortgage deed and taken a copy of the deed. Be became aware of the claim. It was not necessary for defendants 1 to 7 to have put in a claim again. Considering these circumstances I am of opinion that the section is not applicable to the facts of the present case.