Judgement

Appeal (No. 125 of 1919) from a judgment and decree of the High Court (March 7 and December 19, 1917) varying a decree of the Subordinate Judge of Madura.

The material facts giving rise to the suit are stated in the judgment of the Judicial Committee.

The suit was instituted on September 27, 1911, on behalf of the present respondent, the son of the mortgagor under the mortgage of September 15, 1893, and was continued by him on his attaining his majority. The defendant was the present appellant, the assignee of the mortgage decree of October 1, 1901, and the purchaser (by leave) at the auction sale held on April 22, 1907, under that decree.

By his plaint, so far as was material to the present appeal, the plaintiff (respondent) alleged by paragraph 3 that the property mortgaged was defined by the area (9470 kulis) of the garden lands stated in the mortgage deed, that the boundaries given in the deed which included the whole zamindari of 33,000 kulis were immaterial, and that the lesser acreage alone was sold. By paragraph 8 he alleged that pannai (i.e., home farm) lands measuring about 226kulis did not belong to the mortgagor at the date of the mortgage, but vested in him i