Anandrao Purshottam Hatkar vs Bhikaji Sadashiv Vaishampayan on 5 July, 1921

Bombay High Court
Anandrao Purshottam Hatkar vs Bhikaji Sadashiv Vaishampayan on 5 July, 1921
Equivalent citations: (1921) 23 BOMLR 979
Author: K Norman Macleod
Bench: N Macleod, Kt., Shah


Norman Macleod, Kt., C.J.

1. The plaintiff sued for redemption of a possessory mortgage executed to the defendants’ ancestor by the plaintiff’s father. Accounts were taken and it has been found that Rs. 7801-6-9 are due by the plaintiff on the mortgage. The question arose whether the mortgagee was in a position to give back possession to the plaintiff of all the lands of which he had taken possession when the mortgage was executed. The trial Court held that no lands had been lost through the negligence of the mortgagee. The appellate Judge found that the mortgagee had been put in possession of all the mortgaged lands, but that the Commissioner appointed had found that eleven pieces of land were not in the mortgagee’s possession at the time of his inquiry. Then the Judge said :

Considering the precarious condition of the lands which required constant care and repairs, it is likely that some of the lands were neglected and this negligence opened the door to trespassers. Now the question as to whether these trespassers have acquired indefeasible title to those lands is one which could be settled only by making the holders parlies to this suit. This would complicate the suit into a tangle which would be against the policy of the Civil Procedure Code to create. The matter will have to be fought out in separate suits, if necessity should arise hereafter.

2. Now the liability of the parties to the mortgage in a redemption suit can only be decided once, and if this decree were to stand, the plaintiff would get back on payment of the mortgage money only the Survey Numbers in the mortgagee’s possession. Ha would then, according to the decision of the lower appellate Court, be relegated to file a number of suits against persons in possession of those lands which the mortgagee has not restored, and if he failed to get possession, the question would arise whether he could have recourse to the mortgagee for damages. But certainly it is not the policy of the Code to allow such proceedings. The question what is the liability of the mortgagee to account for the properties of which he got possession must be determined in this suit, and if the mortgagee will not give back possession of the lands, of which he Was given possession, then he must pay for them, for he is liable for the 19ai restoration of the lands which have got into the hands of strangers. Therefore, the suit must go back to the lower appellate Court in order that it may determine the mortgagee’s liability with respect to the lands mentioned in para 3 of the judgment. It will then be in the mortgagee’s interest to arrange with the persons who are in possession to restore possession to the plaintiff. But if those persons do not restore possession, then certainly the mortgagee will be liable. The Court will return its findings to this Court within six months.

3. The plaintiff must get his costs of the appeal here and in the District Court.

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