DINKARRAO Vs. SHAMRAO

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. This and second appeal No. 119-B of 1927 arise out of Civil Suit No. 108 of 1924 decided by Mr. J.E. Solomon, Second Class Subordinate Judge, Akola, on 26th June 1926. Both the contesting parties were dissatisfied with the trial Court's decision and they preferred separate appeals to the Court of the District Judge, Akola, the appeal by defendant 1 was Civil. Appeal No. 64 of 1926 and that by the plaintiffs Civil Appeal No. 67 of 1926. The result in both the appeals was the dismissal of the suit but as two separate decrees were drawn up by the District Judge both the present second appeals had to be filed by the plaintiffs. This judgment will govern disposal off both the second appeals.

(2.) THE facts leading to these appeals are a bit complicated and" require to be stated in some detail and for the proper understanding of the points in dispute it is necessary to give the following genealogical tree of the family of the plaintiffs and defendants 2 and 3: Venkatrao | ----------------------------------------------------- | | | Dharrao Madhorao Hanwantrao | | | Dinkarrao -------------------------------- Vishwasrao (Plff. 1) | | (Plff. 2) | | Narayanrao Uttamrao Rustamrao Ramrao Rambhai (Plff. 3) (Deft. 2) (died) Trivikramrao (Daft. 3.)

(3.) THE present suit out of which these second appeals arise was filed by the plaintiffs on 9th May 1921 soon after the allotment of share in the partition suit was made, but admittedly before the final decree for partition was drawn up. The plaintiffs claimed possession of the field and the house from defendant 1 on the ground that the property had fallen to their share at the partition. They asserted that the mortgage executed by defendant 2 was a personal affair of the mortgagor and did not bind them. In the alternative they claimed to redeem the mortgage because they were not made parties to the mortgage suit.