1. The property in suit belonged to the defendant and was sold by him to one Mukund Patil under exhibit 26 for Rs. 99 on August 15, 1913. The defendant, however, remained in possession as his tenant. Mukund sold the property to plaintiff No. 1, on June 2, 1917, by the sale-deed, exhibit 23. The defendant continued in possession, thereafter, as the plaintiff's tenant. In 1919 plaintiff No. 1 filed suit No. 91 of 1919 against the defendant asking for a declaration that he was the owner of the property, for its possession and for arrears of rent and mesne profits. A decree was passed in that suit on September 12, 1919, awarding possession of the property to plaintiff No. 1, together with past and future mesne profits. Even after the decree the defendant was allowed to continue on the land as the plaintiff's tenant. The plaintiffs filed the present suit for a declaration that they were the owners of the said property and to recover its possession from the defendant, together with Rs. 55-7-0 as mesne profits. The defendant contended that the original transaction of the sale of the property in favour of Mukund Patil was really a mortgage and got the suit converted into one for the redemption of that mortgage under the Dekkhan Agriculturists' Relief Act. The plaintiffs in their counter-written statement contended that the transaction was an out-and-out sale and that the defendant had no right to ask for redemption of the alleged mortgage. The trial Court held that the transaction of 1913 was in the nature of a mortgage and that the mortgage had been fully satisfied. The plaintiffs' claim was, therefore, dismissed and the decree of the trial Court was upheld in appeal.
2. The concurrent findings of the lower Courts as regards the nature of the transaction cannot now be challenged, but it is urged that the defendant's contention that the transaction was in the nature of a mortgage was barred as res judicata as that contention was not put forward in plaintiff No. l's suit No. 91 of 1919 in which a decree for possession was passed against the defendant. This contention of the bar of res judicata was not specifically taken by the plaintiffs either in the plaint or in their counter-written statement, though in the memorandum of the grounds of appeal in the lower appellate Court it was specifically urged and was considered. It is urged that as plaintiff No. 1 had asked for possession and a declaration of his title in suit No. 91 of 1919, the defendant might and ought to have urged that the transaction of 1913 was a mortgage and that plaintiff No. 1 was not entitled to get a declaration of his title or to recover possession of the property from him. Unfortunately the pleadings in that suit are not on record and have to be gathered from the certified copy of the decree produced at exhibit 39. It does not contain all the grounds of defence urged by the defendant in that suit, but it does show that plaintiff No. 1 had specifically asked for a declaration that he was the owner of the property and that he had also asked for possession and past and future mesne profits. The declaration prayed for was apparently not granted since the decrial order makes no reference to it. It merely awarded possession and mesne profits to plaintiff No. 1. It appears from the decree that the defendant was present in person to defend the suit and, as he was an agriculturist, presumably he must have been examined and his defence must have been ascertained. From the fact that the declaration of ownership was not granted to plaintiff No. 1 in that suit, it is plausible to presume that the question of title was left open as the plaintiff's title was challenged by the defendant. There are no materials on the record to show that the defendant did not then allege that the sale in favour of Mukund Patil was really a mortgage and that plaintiff No. 1 should not be declared to be the absolute owner of the property. Even if such a contention was put forward and no claim for redemption was made, plaintiff No. 1, as the mortgagee, would be entitled to recover possession from the defendant who was the mortgagor. Plaintiff No. l's claim to possession would not have been defeated by the mere assertion that the transaction was a mortgage and that plaintiff No. 1 was only a mortgagee. That right could be defeated only if the mortgage had been redeemed and the defendant was entitled to retain possession of the property. Even in the present suit the defendant had to get the suit converted into a suit for redemption. Plaintiff No. l's claim to possession in this suit is defeated, because it is held that the mortgage has been satisfied. But no mortgagor can be compelled to ask for redemption if he is not willing to redeem the mortgage, and so long as the mortgage subsists, the mortgagee can recover possession of the mortgaged property. Although the defendant might have urged in the suit of 1919 that the transaction was a mortgage and might have asked for the redemption of that mortgage, he was not bound to do so. Hence it cannot be held that the question regarding the nature of the transaction was constructively in issue in the suit of 1919. Moreover there is nothing on the record to show that the question though raised was not left undecided, since no redemption was asked for. Even in the present suit, the plaintiff No. l's claim for possession would not have been defeated, if the suit had not been converted into a suit for redemption, and the mortgage had not been found to have been fully satisfied. I therefore hold that the decree in suit No. 91 of 1919 does not bar the present contention of the defendant regarding the nature of the transaction. No other point is urged and I dismiss the appeal with costs.