YESHWANT RAO MULEY Vs. SADASHEO RAO

JUDGEMENT

(1.) THE plaintiff appellant Yeshwant Rao's suit against the defendant-respondent Sadasheo Rao for possession of six absolute occupancy fields in mauza Amdi (Nagpur) was decreed by the first Subordinate Judge, second class, Nagpur. Plaintiff is malguzar and lam-bardar of the whole village. Defendant took a mortgage of the subjects from the tenant Bala on 30-6-11; he obtained a foreclosure decree on 4-1-20 and got possession of the fields through the Court on 30-7-24. Plaintiff's case further was that, as the amount concerned in the mortgage decree was Rs. 2,650 and the jama of the fields was Rs. 65, the mortgage required his consent under Section 41, C.P. Tenancy Act, 1898> and as this consent had not been obtained the mortgage was inoperative as against him and he was, therefore, entitled to possession.

(2.) DEFENDANT admitted the main fasts stated above. He also pled that one Godad had obtained a money decree against the original tenant Bala that, in execution thereof, the fields were put up to auction; and that one Vithoba purchased them on 15-7-16 and duly obtained possession on 4-5-17, Since then Vithoba had been in possession until defendant sued both Bala and Vithoba on the former's mortgage and obtained possession as stated in para. 1 above. Bala's tenancy was, therefore, extinguished in 1917 and in any event the present suit was barred by limitation. Defendant further pled that under the C.P. Tenancy Act, 1920 plaintiff had no locus standi for bringing the present suit. An alternative position was also taken up by defendant to the effect that he had approached plaintiff in April 1924 before taking possession of the fields under his decree whereupon plaintiff informed him that he had given his consent to the mortgage and had no objection to defendant entering into possession. Plaintiff's rejoinder was to the effect that he had recognized Vithoba as a tenant and that the present suit was governed by the Tenancy Act of 1898 and not of 1920, his substantive rights-having accrued at a time when the old Act was in force.

(3.) ON these findings plaintiff obtained a decree as already stated in the first Court.