(1.) IN the present mortgage suit, the facts of which are sufficiently clear from the lower Court's judgment, the present appellant, who was defendant 4 in the lower Court, was impleaded in view of the fact that he had obtained a perpetual lease of khudkasht field No. 47 of mauza Jolwadi from defendants 1 to 3 and 7. The connected 2 annas 8 pies share of mawza Jolwadi has been released under the decree passed by the lower Court on the ground that at the time the mortgage came into being, the said share was unier the management of the Collector. The Subordinate Judge, 1st Class, for reasons which are sufficiently clear from his judgment, has, however, held that the khudkasht field No.47, which was the subject of the present appellant's lease, was liable under the mortgage and it has accordingly been included in the mortgage decree. I am, therefore, solely concerned in this appeal with the question as to whether the inclusion of this field is correct or not.
(2.) IN this connexion, I have been referred by the pleader for the appellant to para. 6 of the plaintiffs' written statement, dated 10th July 1925. It has been suggested that therein the plaintiffs rested their case on the fact that the 2 annas 8 pies share of mauza Jolwadi mortgaged was not the same 2 annas 8 pies share as was under the control of the Collector at the time being. It is perfectly clear that the plaintiffs' first plea in this connexion was that the mortgagors had a 5 annas 4 pies share in each of the two villages Jolwadi and Bhojgadh and that it was the, 2 annas 8 pies share which was unaffected by the Collector's control and which was mortgaged. The lower Court, in its finding on issue 8, has, however, found this point against the plaintiff and there has clearly been no proof that the mortgagors had more than 2 annas 8 pies share in mauza Jolwadi.
(3.) IT has next been urged in this connexion on behalf of the appellant that a whatever interest he had in the 2 annas 8 pies share, necessarily must be considered as having been under the management of the Collector and that therefore, khudkasht field 47 came within the said head. I am unable, however, to accept this contention in the circumstances of the present case. Apparently, only specific khudkasht fields, viz., Nos. 10 and 52 of Jolwadi, were under the management of the Collector. The obvious presumption must be that any other khudkasht field not so specified was not affected so far by the Collector's proceedings, and there having been neither allegation nor proof that khudkasht field 47 corresponds to any portion of khudkasht fields 10 and 52, the inference must be that khudkasht field 47 was not under the management of the Collector.