Modi, J.—This is a second appeal by the defendant Rameshwar against the judgment of the District Judge, Jodhpur, dated the 18th August, 1953, by which he set aside the judgment and decree of the Civil Judge, Jodhpur dismissing the plaintiffs suit and decreed it. The suit was for a declaration of title with respect to a certain lorry No. RJQ 1221.

2. The suit out of which this appeal arises was brought by Tarasingh plaintiff respondent No. 1 against the present appellant and defendant respondent Goverdhandas. Respondent Goverdhandas was the owner of the lorry. The plaintiff respondent Tarasingh brought his suit on the allegation that he had purchased the said lorry from Goverdhandas for a sum of Rs 2,000/- on the 9th July, 1949, for which the latter had passed a receipt (Ex. P-l). A joint application had been made in the office of the Deputy Inspector General of Police for the grant of a licence with respect to the lorry by Tarasingh and Goverdhandas on the same day, and a licence was granted to Tarasingh on the 11th July, 1949. Plaintiff resopndent Tarasingh was compelled to bring the suit because the defendant appellant had launched a criminal complaint against defendant Goverdhandas under sec. 406 IPC. in the court of the Sub-Divisional Magistrate Pali, and the lorry was attached by that court in connection with that complaint. It is important to mention here that respondent Goverdhandas had made a mortgage of certain immovable property of his and also the lorry in question to defendant appellant Rameshwar by a registered mortgage-deed (Ex. D-3) dated the 27th July 1947, as a security for a loan of Rs, 9000/- which the latter advanced to the former. Thereafter Goverdhandas obtained possession of the lorry from Rameshwar under a rent-note (Ex. D-5) dated the 28th July. 1947. The rent note was also registered. As already stated above, Tarasingh purchased the lorry from Goverdhandas in July, 1949, that is after a period of about two years of the mortgage in favour of Rameshwar. As the lorry had in connection with Rameshwars complaint been attached by the criminal court on the 19th August, 1949, Tara Singh Respondent brought the present suit in the court of the Additional Sub Judge, Jodhpur, on the 11th October. 1949. In para 4 of his plaint, the plaintiff respondent stated that the defendant appellant Rameshwar had also taken part in settling the deal with respect to the lorry in favour of Tara Singh for Rs. 2000/-.

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Para 7 of the plaint further stated that the plaintiff was a "bona fide purchaser for value in the open market". In this connection it was further stated that the licence for the lorry was at the time of the purchase in the name of defendant Goverdhandas , the insurance policy was also in his name and the petrol coupons also used to be issued to him, and, therefore, the plaintiff was satisfied that the defendant Goverdhandas was the owner of the lorry and, therefore, the purchase was made from him. It is remarkable that the plaint studiously avoids the mention of the fact that Tara Singh was a purchaser for value "without notice of defendant appellant Rameshwars mortgage",

3. Defendant respondent Goverdhandas the vendor admitted the plaintiffs claim. Defendant appellant Rameshwar contested the suit on a large number of grounds but it is not necessary to mention all of them for the purposes of the present appeal. The main pleas which call for mention are that this defendant was a prior mortgagee of the lorry and that defendant Goverdhandas had only obtained possession of it under a rent-note, and, had, therefore, no right to sell the lorry. It was also contended that the transaction of sale by Goverdhandas in favour of Tara Singh plaintiff respondent was merely a sham transaction, and it was, therefore in no way binding on the contesting defendant. With respect to the allegation made in para 4 of the plaint, this defendant categorically state

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