RAMCHANDRA VITHAL BHAT Vs. JANKI LAKSHMAN SHETGA

JUDGEMENT

(1.) The plaintiff, who is khot of the village of Amdoshi in taluka Mangaon of the Kolaba district, sued for a declaration that his tenants had no right to alienate land without his consent and to recover possession of the suit lands from defendants Nos. 1 to 4 with mesne profits and costs; and also for necessary correction in the record of rights.

(2.) Defendant No. 1 for herself and for her minor son defendant No. 2 executed a mortgage of her tenancy in favour of defendant No. 5, Defendant No. 4 was the tenant on the land. The defendants contended that they had redeemed the mortgage and therefore the plaintiff had no cause of action. The first Court, the Second Glass Subordinate Judge of Roha, decreed the plaintiff's claim, but on appeal the District Judge, Thana, reversed the decree and dismissed the plaintiff's suit. The plaintiff makes this second appeal.

(3.) The grounds on which the District Judge proceeded in dismissing the suit are only two. After discussion of the law on the subject he came to the conclusion that he was bound to find in the face of the numerous rulings of this Court ending with Purshottam V/s. Ganpati (1925) 28 Bom. L.R. 750 that an alienation by a tenant without the Idiot's consent of his khot niabat lands in the Mangaon taluka of the Kolaba district gave the khot the right of re-entry. That case also is on all fours with the present case, because in that case also the lands were under attachment, and it was held that a temporary attachment of a village by Government does note affect the rights which the khot has independantly of the right of management, such as the giving of consent to alienation of khoti nisbat lands by tenanta. The Judge, however, held that the mortgage had been redeemed and that after the redemption, which was prior to the suit, the khot would have no right of re-entry. He says :- I am inclined to hold that a mortgage with possession though it may expose the property to a re-entry on the part of the khot while it is in the possession of the mortgagee, yet leaves open a locus panitsalia to the tenant so long as the khot has not re-entered, and if the property is actually redeemed or regained by the tenant before the khot could make his re entry, then that right is successfully frustrated.