BAPUJIRAO RAOJIRAO GHADGE Vs. RAGHUNATHRAO JOTYAJIRAO GHATGE

JUDGEMENT

(1.) THE plaintiff filed this suit to redeem the plaint lands from the mortgage mentioned therein. He has got a decree. But in the course of the suit he was met by defendant No. 22 who claimed to have an interest in the mortgaged land. That question was fought out in 1892 when the mortgagee filed a suit for possession against defendant No. 22's father. Defendant No. 22's father was then disputing the present plaintiff's father's exclusive title and asserted his own over the land. THE Court decided that defendant No. 22's father was not the least interested either in the land or in the mango trees, and that the present plaintiff's father was full owner of the properties mortgaged by him to defendants Nos. 1 and as father. THE Court also held that defendant No. 22's father was not joint in interest with the present plaintiff's father. It seems very strange to me that, 30 years later, when the plaintiff seeks to redeem, he should be met by the same contention on behalf of the 22nd defendant that the property did not belong to plaintiff's father. THE Appellate Judge said: "But the mortgagee sued as representing the estate, that is, as representative of the mortgagor, and as such the decree he obtained was for the benefit of the mortgagor, so that the 22nd defendant could not again set up his title on foe mortgaged lands against the mortgagor. He, therefore, found that this question was res judicata as between the present plaintiff and defendant No. 22.

(2.) UNDER Section 11 or the Civil P. C. the matter must have been directly and substantially in issue in a former suit between the same parties, or between parties under whom the or any of them claim, litigating under the same title. Now the mortgagee was litigating against the 22nd defendant's father on the ground that the property belonged to his mortgagor. The father of defendant No. 22 disputed that title and lost. Now that the mortgagor seeks to redeem, he is really claiming through the mortgagee, and it seems to me that Section 11 of the Civil Procedure Code would sufficiently dispose of the suggestion that the 22nd defendant is still at liberty to raise a contention against the plaintiff which was defeated in 1892 in proceedings between his father and the mortgagee. In my opinion, therefore, the appeal should be dismissed with costs. The cross-objections are dismissed with costs.