YADO PRASAD Vs. ONKARLAL SAO

JUDGEMENT

(1.) THE present suit relates to a malik makbuza field No. 59 of mauza Kharsoli, Nagpur, held originally by one Sakharam and Mt. Thusi in equal shares. It will be convenient to give more or less in chronological order the main transactions with relation to the property, and I set these out below:

(2.) IN the suit against Sakharam and Mithu (No. 602 of 1910), the claim against the absolute occupancy fields was also relinquished. The amount sued for was also relinquished. The amount sued for was Rs. 2,143-13-0. Preliminary decree of foreclosure was obtained on 31st August 1914. Defendant 2, Mithu, appealed and the suit was remanded for fresh trial. The present defendants applied on 3rd October 1912 to be impleaded. This was done, and they filed a written statement on 17th March 1913, raising a plea of limitation. Eventually the suit was dismissed against them and decreed against the first two defendants on 30th August 1914. The plaintiffs appealed relying on the decision in Narayan v. Mahadeo [1914] 10 N.L.R. 173 and the appellate Court held that Yado Parshad, and his father's names should have been struck off and the suit decreed against the original defendants. Both these decrees were made final on 6th December 1915;

(3.) IN the present suit the Subordinate Judge held that the plaintiffs are entitled to possession of the malik makbuza field on redemption of the defendants' mortgage and passed decree accordingly. The defendants appealed on the grounds that plaintiffs had no right to possession at all and that, in any event, they should have been allowed to redeem the plaintiffs' mortgages. The District Judge set aside the decree of the first Court and instead passed a decree granting the plaintiffs possession subject to the defendants' right to redeem the plaintiffs on payment of Rs. 4,407-8-5 due on their mortgages.