WANCHOO, C.J. :- This is an appeal by Shri Indernath Modi against the judgment and decree of the District Judge, Jodhpur, which had come up for hearing once before, and some of the points in dispute were decided on the 7th of October, 1952. That judgment will be treated as a part of the present judgment. The facts are all given in that judgment and it is not necessary to repeat them in detail here. Suffice it to say that the suit by the plaintiff-appellant was for recovery of possession on the basis of a mortgage said to have been made by one Nandram and his brother Achlu on Baisakh Badi 7, St. 1975 (22nd April, 1919). After the mortgage, Nandram executed a lease in favour of the mortgagee and remained in possession as a tenant.

The original mortgagee Jainarain however sued Nandram on his failure to pay the rent, and got a decree for ejectment and obtained actual possession by execution on the 19th of November, 1931. Thereafter, there was trouble between Jai Narain and Mst. Sarupi, mother of Nandram.

She had taken possession of the house by trespassing on it, and Jainarains attempts to oust her through the criminal Courts failed. She died in 1942, and thereafter Nandram and