BALVANT RANGNATH Vs. BALA MALU

JUDGEMENT

(1.) The plaintiff brought this suit to recover possession of the suit land from the first three defendants, or, in the alternative, to recover Rs. 417-9-0 from the fourth defendant. The fourth defendant had obtained a mortgage decree on the 15 August 1913 in Suit No. 696 of 1910 against defendants Nos. 5 and 6, Sakharam and Tukaram. In the execution of that decree, the suit land was sold by auction on the 3 March 1917. The plaintiff purchased if for Rs. 401 and his sale was confirmed in the 23 May 1917. He says that he got possession of the land unobstructed, but the defendants allege that only symbolical possession was obtained and the plaintiff was never in actual possession or Vahivat of the land. On the 28 August 1.917, defendants Nos. 1 and 2 asserted their right to be in possession of the land, whereupon the plaintiff filed Suit No. 28 of 1917 in the Mamlatdar's Court which he lost. So he had to bring this suit.

(2.) In the trial Court it was found that defendants Nos. 1 to 3 had been in possession as owners for more than twelve years and therefore the plaintiff could not succeed as against them. The learned Judge passed a decree for Rs. 407-6-0 and costs against the fourth defendant relying on the decision in Rustomji Ardeshir V/s. Vinayak Gangadhar (1910) I.L.R. 35 Bom, 29; 13 Bom. L.R. 723.

(3.) In appeal this decision was reversed by the District Judge who considered that the rule laid down in Rustomji Ardeshir V/s. Vinayak Gangadhar had no application to a sale in pursuance of a mortgage decree under Order XXXIV, that there was no allegation of fraud, and that therefore there was no basis for the claim to recover the purchase money.