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1957 Supreme(Bom) 62

J.C.SHAH
Bhanshali Kushalchand Ramji and Anr. – Appellant
Versus
Sha Shamji Jivraj – Respondent


ORDER

This revision application under paragraph 35 of the Kutch Province (Courts) Order, 1948, arises out of a suit for partition. The only question falling for consideration is whether the applicant-plaintiffs are entitled to recover actual possession of the Vakhar (shop) in suit. This property and another shop had been originally mortgaged with possession by the plaintiffs uncle Laxmichand Jutha with the first defendant Shamji Jivraj on Jeth Vad 30 of Samvat year 1989 for 5000 Koris and, on taking accounts of the mortgage, 7700 Koris were found due to the mortgagee towards which the plaintiffs paid 7000 Koris and for the balance of 700 Koris and for a cash consideration of 300 Koris, in all 1000 Koris, the plaintiffs mortgaged with possession the suit shop with the said defendant 1 by a deed of mortgage dated Vaishak Sud 4 of Samvat year 2001 and this is referred to in this suit as the first mortgage. By a second possessory mortgage the plaintiffs mortgaged the shop to defendants 2, 3 and 4 for Rs. 1000/- by a deed of mortgage dated Chaitra Sud 13 of St. year 2008 corresponding to 8-4-52 (Ex.20). However the said defendants 2, 3 and 4 were in possession of the suit shop from Samva














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