BHOGILAL TARACHAND JAVERI Vs. JETHALAL MOTILAL KUMBHAR

JUDGEMENT

(1.) This suit was brought by the plaintiffs for an injunction to restrain the defendant from interfering with the plaintiffs possession and from collecting rent from the tenants in occupation of the property, and for recovering the rent due in respect of the half share of the property. It is not necessary to go into the detailed facts of the case. It is sufficient for the purpose of this appeal to state the necessary facts.

(2.) Plaintiff No. 2 was entitled as a purchaser to a moiety of the property belonging to one Pitambar and was entitled as a mortgagee with respect to the other moiety belonging to Pitambar's nephew, the defendant Jetha. The defendant sought to disturb the possession of the plaintiff as a purchaser of the moiety and as a mortgagee of the remaining moiety. Plaintiff No, 2 acquired the rights as purchaser with respect to Pitambar's moiety on July 30,1918, and as a mortgagee with regard to the other moiety on January 24, 1916. Plaintiff No. 2 established his right to possession on the strength of his purchase with regard to a moiety and on the strength of the mortgage with regard to the other moiety On September 3, 1920, plaintiff No. 2 sold to plaintiff No. 1 both his rights as a purchaser and as a mortgagee. The defendant disturbed the possession of the plaintiffs and took the profits to which plaintiff No. 2 was entitled by virtue of his purchase with regard to Pitambar's moiety. The suit was brought by both the plaintiffs and a decree was asked for in favour of plaintiff No. 1. The learned Subordinate Judge held that the defendant was accountable for Pitambar's share of the rent received by him, to plaintiff No. 1, but only from September 3 1920, that is, the date of the sale-deed of plaintiff No. 2 in favour of plaintiff No. 1,to January 21,1921, when the plaintiffs obtained a temporary injunction. The claim with regard to Pitambar's share of the pro6ts received by the defendant from July 30, 1918, to September 3, 1920, was dismissed on the ground that plaintiff No. 1 was entitled to the rent of Pitambar's share from the date of the sale-deed and the decree was asked in favour of plaintiff No. 1 and not in favour of plaintiff No. 2, who alone was entitled to the rent received by the defendant Jetha. The plaintiff No. 1 was allowed the rent of Pitambar's share from September 3, 1920, to January 21, 1921, and the Subordinate Judge passed a decree in favour of plaintiff No. 1 to the extent of Rs. 306-10- 8. On appeal, the lower appellate Court held that the net rent was Rs. 1,500 instead of Rs. 1,600 and awarded the claim in favour of plaintiff No. 1 to the extent of Rs. 220. Both the plaintiffs have appealed.

(3.) It is urged on behalf of the appellants that the lower appellate Court erred in reducing the amount from Rs. 306-10-8 to Rs. 230, We are of opinion that the finding of the lower appellate Court is on a question of fact, and is binding on us in second appeal, and plaintiff No. 1 is not entitled to anything more than Rs. 230 as found by the lower appellate Court.