RAMCHANDRA VITHAL BHAT Vs. GAJANAN NARAYAN DESHMUKH

JUDGEMENT

(1.) It will be convenient to set forth the facts which have given rise to this second appeal.

(2.) One Narayan and his other brothers mortgaged a two-anna share in the Khoti Takshim to one Vinayak Tilak with all the Khasgi lands and other rights appertaining to the Takshim. The mortgagee filed Suit No. 194 of 1902 on his mortgage and obtained a decree. In pursuance of that decree the property mortgaged was sold by the Court and the present plaintiff purchased it at the Court sale on the 16th June 19C8 for Rs. 1,200. The tale was confirmed in July 1908. The auction purchaser applied to have possession of the property and be recovered possession in December 1903 of the Tekshim. It was stated, however, at the time by him that certain properties to which the sale certificate related were in the actual possession of the defendants and that be had not received possession of those properties. Those properties were not specified; but generally speaking, the main property described in the sale certificate, viz., the Khoti Takshim, was taken possession of under Section 319 of the Code of Civil Procedure which was then in force. The present plaintiff filed Suit No. 118 of 1910 against some of the defendants to the mortgage suit for possession of certain Survey Numbers which were in the possession of those defendants. To that suit the present defendants Nos. 2 and 3 were joined as parties, but they bad nothing to do with the lands then in suit. In that suit it was found that the plaintiff was not a Benamidar for the original mortgagee and decree-holder, and that the lands then in suit were covered by the sale certificate. Accordingly a decree was passed in his favour for possession of the lands, and that was upheld by both the Appellate Courts in appeals preferred by the defendants in that case who were in possession of the lands then in suit. The plaintiff filed the present suit in 1914 against defendants Nos. 2 and 3, alleging that the 1st defendant who was the tenant of defendants Nos. 2 and 3 was really in occupation of the land in suit at the date when he recovered possession in 1908 under the sale certificate and that subsequently he had transferred possession wrongfully to defendants Nos. 2 and 3. Defendant No. 1 did not claim any interest in the property, and defendants Nos. 2 and 3 contended that the land in suit was not included in the sale certificate, that it was a Khoti Kulargi land, that the plaintiff was a Benamidar for the original decree holder and that the suit was barred under Order I), rule 2, by the previous Suit No. 118 of 1910. The trial Court came to the conclusion that the plaintiff was not a Benamidar and that he was entitled to recover possession of the lands in suit, as the terms of the sale certificate were sufficient to convey the lands to the plaintiff. The objection based on rule 2 of Order II of the Code of Civil Procedure was overruled, with the result that a decree was pasted in favour of the plaintiff. The defendants Nos. 2 and 3 appealed to the District Court. That Court came to the conclusion that the plaintiff was a Benamidar for the original decree holder, that the latter was a necessary party to the suit, and that the present suit was not maintainable. The learned District Judge accordingly dismissed the plaintiff s suit with costs throughout. The plaintiff has appealed to this Court.

(3.) The appeal has been argued before us on the footing that the plaintiff is a Benamidar for the original mortgagee and the decree-holder, as found by the lower Appellate Court. It is also now common ground between the parties that the land in suit, though not expressly mentioned in the sale certificate, is included therein, and that the purchaser has a title under the sale certificate to the land in suit as he has to the two-anna Takshim.