NIMBA GANBA GHULE Vs. NARAYAN PAIKAJI KALE

JUDGEMENT

(1.) THE plaintiff brought a suit for a declaration that the property mentioned in his plaint, namely 0-8-0 village share and sir and khudkast fields in Mouza Kusumbi, was his and that the defendant had no right or title to any interest in this property. The suit was occasioned by the fact that the defendant Nimba was in the process of executing a mortgage decree which he held over these fields and the village share which the plaintiff had already acquired by an auction, purchase in execution of his own decree for money.

(2.) THE plaintiff's decree is dated 1610-1929 and is Ex. P-3. In December 1929, as will be seen from Ex. p-2, he attached the property and on 23-7-1930 he put in a sale statement in which the defendant Nimba's mortgage is mentioned but is stated to be of no effect since it was without consideration. The vital document is Ex. P-10 which is an application by Nimba and the question for decision is whether it is governed by Order 21, Rule 68 or Order 21, Rule 66 asking that the property in question be put up to sale subject to the encumbrance of his own mortgage. This was rejected on 26-1-1931 as having been made too late: Ex. p-2.

(3.) IN 1936 the plaintiff brought a suit against Mahadeo for arrears of rent and obtained a decree against him in September 1937 as a result of which Mahadeo was ejected from these fields by the revenue Courts in 1938. It also appears that during the year 1981 negotiations were going on between Nimba and. Mahadeo and it was agreed that Nimba should purchase this share in order to satisfy his (Nimba's) mortgage and also to pay off some decrees outstanding against Mahadeo including that of Narayan. In pursuance of this agreement Mahadeo approached the revenue authorities for permission to sell, in addition to his village share, his cultivating rights in sir, pointing out that he had other property which would enable him to maintain his family, and necessary sanction was accorded towards1 the end of 1931. Nothing, however, came out of it as no sale deed was executed and it is Nimba's contention that Mahadeo resiled from the agreement. No further action appears to have been taken by Nimbar after this, and it is to be noted that the sale of the property to Arjun was not held until December 1931 and the sale was not confirmed in Narayan's favour as a result of his claim to pre-emption until two years later.