Judgment

P. JAGANMOHAN REDDY, J.: This is an appeal by special leave against the judgment of the Bombay High Court confirming the Judgment of the Assistant Sessions Judge, Kolhapur who reversed the judgment and decree of the civil judge of Junior Division at Gadhinglaj whereby the suit of the plaintiff-respondent was dismissed. The respondent had filed a suit against the appellant Shivagonda Subraigonda Patil and his sons Nijappa Shivagounda Patil, Virgonda Shivagounda Patil, Bhimapa Shivagounda Patil and Rayappa Shivagonda Patil with the allegation that on 27-5-1921 the first defendant, Shivagounda who was the karta of the joint family consisting of himself and his four sons, sold by a registered sale deed for a sum of Rs. 2400 the suit properties admeasuring 6 acres and 37 guntas out of R. S. No. 62/2 and 62/3 to the plaintiff s father Bhimgonda. The properties sold to the plaintiff s father were previously mortgaged and it was averred that the first defendant had undertaken to pay the mortgage debt and hend over the suit property to the plaintiff s father. It appears that part of the property out of R. S. 62/2 to the extent of four acres, 36 guntas was mortgaged to Hanmogond Balgonda Patil for Rs.1000 and two acres and one gunta out of S. No. 62/3 was mortgaged to Virgonda and four other persons. It was the case of the plaintiff that after the death of Hanmgond Balgonda the first defendant repaid the debt to his widow Gangabai and obtained possession of the hypotheca but instead of handing over possession to the plaintiff s father as stipulated in the sale deed he retained the possession. In respect of the other two acres and one gunta which was mortgaged to Virgonda and others he alleged that the first defendant redeemed the mortgage and handed over the possession to the plaintiff s mother as the guardian of the plaintiff who was then a minor and that after the plaintiff s mother got into possession of the property the Kolhapur government attached the property and took possession of it in 1928 on the ground that the mortgage in favour of Virgonda and others was contrary to Wat Hukums. However, it appears that on or about 3-3-51 attachment was vacated but the possession of this land was handed over by the collector to the first defendant instead of the plaintiff from whose possession it was taken. It was the plaintiff s case that both in respect of the property that was mortgaged to Hanmgonda Balgonda and that which was mortgaged to Virgonda and others it was the first defendant that retained possession of the said lands contrary to the stipulation and the sale effected in favour of the plaintiff s father. It was also the plaintiff s case that Bhimgonda who was a hissadar bhauband of the suit land which was a part of Patilki watan inam land on the date of the sale deed dated 27-5-21 was entitled to claim possession of the property on the strength of his title deed; as such the revenue court erred in handing over possession of the portion of the suit property to the first defendant on 3-3-51.

2. The first defendant respondent No.1 contended in his written statement that the suit being patilki watani service inam property, its transfer was declared by Wat Hukums of the Kolhapur State to be illegal and void because neither the plaintiff nor his father was either the nawawala of the patilki watani service inam lands or the male members of the senior branch of the senior family. It was also contended that the mortgage in 1915 by the first defendant in favour of Hanamgonda was also contrary to wat hukums and therefore void. Even apart from this defect the suit property was never in the possession of the deceased Hanamgonda in his capacity as the mortgagee but that it has always been in his possession as the owner thereof. Accordingly the suit was barred by limitation. On these pleadings several issues were framed but for the purposes of this appeal having regard to the arguments addressed before us only two issues are relevant, n