INDRARAJ SINGH Vs. CHAITRAM

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. The subject-matter of the suit out of which this appeal arises is the village of Kayadi in the Waraseoni Tahsil of the Balaghat District with sir fields, houses, trees and wells situate in the said village. The parties are closely related by marriage. The plaintiff is the zamindar of Fulchur and this eldest son had, in 1901, married the daughter of defendant 1. In the year 1920 the plaintiff's daughter was married to defendant 2, who is the son of defendant 1. In 1909 in consideration of a loan of Rs. 12,000 defendant 1 and his two stepmothers had executed a mortgage of the property in dispute in plaintiff's favour with a condition of foreclosure. On the basis of this mortgage the plaintiff brought a suit (Civil Suit No. 15 of 1913 in the Court of the District Judge, Bhandara) and obtained an ex parte decree nisi for foreclosure for Rs. 16,455-11-3 on 18th August 1913, which was made absolute on 9th May 1914 and formal possession of the foreclosed property was obtained by the plaintiff on 9th August 1914. The plaintiff also got his name mutated in respect of this village on 24th March 1915.

(2.) THE plaintiff brought the present suit for confirmation of his possession of the said village or in the alternative for actual possession thereof. The plaintiff's ease was that after he had obtained possession of the property under his foreclosure decree, he had appointed defendant 1 as his manager to manage the same on his behalf, and that defendant 1 did so until the year 1923 when he asserted a hostile title by making an unsuccessful attempt in the revenue Coasts for having the village mutated in his own name. It was asserted in para. 4 of the plaint that there was some sort of, agreement between the parties for reconvening the village to defendant 1 on his paying to the plaintiff the whole of the decretal amount within two months by the end of October 1914, and it was admitted that in pursuance of this agreement defendant 1 actually paid to the plaintiff's pleader Mr. Gokhale Rs. 4,500 on 29th September 1914, but since the balance was not paid as stipulated, it was asserted that the agreement fell through.

(3.) THE pleadings of the parties were very elaborate but a fair idea of them would be gathered from the following issues framed for trial: