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Nanchi Kom Khatal Md. Ghori Saudagaor Vs. Shititi Kulsambi Kom Sayad and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1923Bom42; 79Ind.Cas.791
AppellantNanchi Kom Khatal Md. Ghori Saudagaor
RespondentShititi Kulsambi Kom Sayad and ors.
Excerpt:
mortgage - mortgagee put in possession of area larger than that mortgaged--redemption--mortgagor, whether can recover excess area. - .....4 acres and 7 gunthas out of survey no, 1075 and in 1917 she seems to have put the defendants into possession as mortgagees of more than was specifically mortgaged by the deed of 1901 with the result that the defendants had been in possession of that extra land not as if it were an accretion to the property in the original mortgage but as a substitution through mistake: obviously, the plaintiff in a suit for possession would be entitled to recover that property. there is no reason why in second appeal we should not do justice by directing that, on the plaintiff's paying the decretal amount within six months from the, date the record goes back to the lower court, defendant no.1, should give back possession not only of 2-34 acres but also the remaining portion of the land making a total of.....
Judgment:

Macleod, J.

1. Strictly speaking, the finding of the lower Court that the plaintiff was only entitled to redeem 2 acres and 34 gunthas area out o Survey No. 1075, as mentioned in the mortgage of 1901 to the defendant, was correct. But it cannot be denied that the plaintiff was entitled on a partition between himself and the other sharers to 4 acres and 7 gunthas out of Survey No, 1075 and in 1917 she seems to have put the defendants into possession as mortgagees of more than was specifically mortgaged by the deed of 1901 with the result that the defendants had been in possession of that extra land not as if it were an accretion to the property in the original mortgage but as a substitution through mistake: obviously, the plaintiff in a suit for possession would be entitled to recover that property. There is no reason why in second appeal we should not do justice by directing that, on the plaintiff's paying the decretal amount within six months from the, date the record goes back to the lower Court, defendant No.1, should give back possession not only of 2-34 acres but also the remaining portion of the land making a total of 4-7 acres to which the plaintiff became entitled on partition.

2. The appellant to pay costs of the Eespon-dents throughout.


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