SAKHUBAI W/O. BAPUJI Vs. EKNATH BELLAPPA

JUDGEMENT

(1.) THE civil suit from which this second appeal by the defendant (hereinafter called appellant) arises was filed by the plaintiffs (hereinafter called respondents) for a declaration and if necessary, for possession of field No. 15 situate in Karanji Izara. The suit was decreed by the first Court and the appeal preferred by the defendant against that decree was dismissed by the lower appellate Court. The defendant has therefore filed this second appeal.

(2.) IT is common ground that the field was originally owned along with other fields in Karanji Izara by Mt. Bayanabai w/o Vyankatrao. She mortgaged her fields in the Izara village including the field No. 15 now in dispute with the plaintiffs on 16th February 1918, and 24th March 1920 and these mortgages merged in a fresh mortgage which she executed on 6-10-1922. The mortgagees enforced this mortgage in Civil Suit No. 61 of 1930 and obtained a final decree for foreclosure on 20-3-1937. They also obtained possession through Court on 28-12 1937. Waman Santoba, the husband of appellant 1 (now deceased) sued the mortgagees (respondents) for possession of field No. 15 Under Section 9, Specific Relief Act, and this suit, No. 45 of 1938, Was decreed in his favour. He took possession of the field No. 15 on 13-12-1938. The mortgagees-respondents had therefore to file the present suit.

(3.) BOTH Courts have found that the alleged exchange of the fields in 1917 is not proved and that the oral exchange in respect of the property worth more than RS. 100/- was also invalid in law. It was further held on the strength of Ex. p. 16 that from 1918 to 1925 Bayanabai was shown as owner and Waman was shown as a tenant. Maroti's possession over field No. 15 was found to be from 1923, i.e. after the last mortgage and never before. Thus the plea of Maroti's title was negatived and Maroti could not consequently pass any title to Waman by virtue of the sale deed dated 28-3-1925.