( 1 ) THIS appeal is filed by the original defendants Nos. 2 and 3 as the lower appellate Court had confirmed the trial Courts decree decreeing the plaintiffs suit for recovery of possession of the suit lands from the defendants except for a slight variation as regards the quantum of mesne profits. The original defendant No. 1 has been joined as a respondent and he having died during the pendency of the suit his heirs have been brought on record and finally joined as respondents along with the plaintiff

( 2 ) THE short facts which have given rise to this appeal are as follows:-THE parties in this case are Molesalam Muslim Garasia of Gujarat. One Rupsing had executed a mortgage with possession for a consideration of Rs. 955. 00in favour of one Kalubava the father of defendants 1 2 and 3 on 16th July 1928 as per Ex. 46. On the death of Kalubava the heirs of defendants 1 2 and 3 became the owners of the said mortgagee rights. Rupsing died on 16th December 1931. Thereafter Rupsings widow Manba executed a mortgage with possession in favour of defendant No. 1 Kanaksing in respect of the suit lands along with certain other properties as per Ex. 45 on 14-4-1943. The consideration of this mortgage of Rs. 1410/was made up of Rs. 955/due on the previous mortgage Ex. 46 and the balance was paid in cash. An endorsement was made below Ex. 46 on 14 to the effect that the debt under the previous mortgage was discharged. Thereafter on 6-6-46 defendant No. 1 Kanaksing executed the present sale deed or assignment of his rights as a mortgagee in respect of the suit lands in favour of the plaintiffs for a sum of Rs. 1410/as per Ex. 38. It appears that on 26-6-47 Bai Manba executed a gift deed in respect of the equity of redemption of the suit lands in favour of defendants 2 and 3 as per Ex. 41. The plaintiffs case was that after he purchased the mortgagees rights from defendant No 1 as per Ex. 38 he was put into possession on 6-6-46. However on 19-6-46 defendants 2 and 3 forcibly took away possession from the plaintiffs tenant. The plaintiffs therefore filed an earlier suit being Civil Suit No. 124/48-49. By the order at Ex 34 the Court had granted leave for withdrawal of the said suit with permission to file a fresh suit as it was satisfied as to the existence of sufficient grounds and because of a formal defect shown by the plaintiffs. The said order was passed on 6-7-53 granting permission and the said suit was dismissed. Costs having not been pressed by the defendants no order was made as regards the costs. Thereafter the present suit was filed on 10-10-53 for recovery of possession of the suit lands with past three years mesne profits from the defendants. Defendant No. 1 remained ex parte all throughout. The contention of defendants 2 and 3 in the written statement Ex. 9 was that defendant No. 1 was not the owner of the suit lands and he had no authority to sell the suit lands on behalf of defendants 2 and 3. They also contended that Bai Manba had executed a gift deed in their favour on 26-6-47 at Ex. 41 and that they were all along in possession and the plaintiffs could not recover possession from them. They had also contended that the original debt had been extinguished as no application had been made under the B. A. D. R. Act. They therefore contended that the plaintiffs suit was not maintainable against them. They also contended that the permission for withdrawal could not be granted and so the present suit was barred by res judicata. At the earlier stage the trial Court had held that the suit was not maintainable as plaintiffs had not filed any application under the B. A. D. R. Act against the heirs of Manba defendants 2 and 3. The plaintiff had gone in appeal and it had been held that the defendants could not prove that they were debtors and that they were indebted to less than Rs. 15000. 00. The plaintiffs right as a mortgagee was not therefore held to be extinguished under sec. 15 of the B. A. D. R. Act even though he ma