JUDGMENT - (1) Survey No. 110 situate at Takli originally belonged to one Girgonda Rayagonda Patil. On 5-3-1924,. Girgonda executed a simple mortgage in respect of the said land in favour of one Appaji Payangonda Patil. Appaji Payangonda Patil will hereafter be described as the first mortgagee. Thereafter, Girgonda executed a possessory mortgage in respect of the same land, first on 2-7-1924 and later on 26-11-1928, in favour of Yogabai, the present plaintiff. Yogabai will hereafter be described as the second mortgagee.

(2) The first mortgagees son Babagouda instituted suit No. 276 of 1931 against the mortgagor

for recovery of the mortgage money due under the mortgaged property. To this suit the second mortgagee was not made a party. A final decree for sale of the mortgaged property in this suit was passed on 18th June 1933.

(3) The second mortgagee filed a similar suit being suit No. 718 of 1931 against her mortgagor. Although her mortgages were possessory mortgages, it appears that she was entitled to recover the mortgagee money due under her two mortgages by sale of the mortgaged property. To this suit the first mortgagees heir Babagouda was not a party. A final decree for sale of the mortgaged property was passed in favour of the second mortgagee on 5th January 1933.

(4) The second mortgagee filed a darkhast, being Darkhast No. 200 of 1933 for sale of the mortgaged property. In the darkhast proceedings, Babagouda intervened and contended that his mortgagees rights should be shown in the proclamation to be prepared for sale of the mortgaged property. Accordingly, the proclamation mentioned the prior encumbrance in favour of Babagouda son of the first mortgagee, and in the auction sale, which was held on 25th September 1934, one Vasudev Phadke purchased the mortgaged property for Rs. 600/-. The amount was paid to be decree-holder, the second mortgagee, and Vasudev Phadke got the sale certificate on 18th March 1935.

(5) In the same year (1935), the first mortgagees son Babagouda filed Darkhast No. 312 of 1935 against the mortgagor Girgouda and the auction purchaser Vasudev Phadke. In the darkhast it was mentioned that Vasudev Phadke had been made a party as he had purchased the mortgaged property in darkhast No. 200 of 1933 and in order that Vasudev Phadke should have an opportunity of redeeming the mortgage encumbrance in favour of the darkhastdar. Vasudev Phadke appeared in the darkhast proceedings and stated that he had purchased all the rights of the mortgagor in darkhast No. 200 of 1933, which had been filed by the second mortgagee; but he contended that he could not be compelled to redeem the first mortgage in favour of the first mortgagee, as he was in possession of the mortgaged property on the strength of the possessory mortgage.

(6) While the darkhast proceeding - Darkhast No. 312 of 1935 - were pending, Vasudev Phadke sold his right, title and interest in the property purchased by him to the present plaintiff on 10th November 1936 for a stated consideration of Rs. 400 and in reply to a notice which was served upon him under Order XXI, Rule 66 of the Code of Civil Procedure, he stated to the executing Court that he had ceased to have any interest in the property as he had sold the same to the present plaintiff. At the auction sale on the darkhast proceedings held on 20th April 1939 Nemu Tatya Desai, the predecessor-in-title of the present defendants purchased it for Rs. 625 and got possession of the property in due course.

(7) Yogabai, the present plaintiff, presumably on the strength of the sale deed executed in her favour by Vasudev Phadke, instituted suit No. 23 of 1950 against the present defendants in ejectment. This suit was dismissed by the trial Court. She preferred an appeal to the District Court. Her appeal was Appeal No. 148 of 1951. In appeal, she was allowed to withdraw her suit, with permission to bring another suit on the same cause of action. This order of withdrawal was challenged by the defendants in Civ

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