Gajendragadkar, J. - (1.)The short question which arises in this appeal is whether a permanent lease executed by the mortgagor during the pendency of a simple mortgage binds the mortgagee or persons claiming through him. This question arises in this way :
(2.)In the present suit the plaintiffs claimed a declaration that they were entitled to a two-thirds share in the right of occupation and enjoyment of 7 acres in S. No. 69 at Torvi and to a 4/9ths share in the mango and other fruit trees therein. They had also claimed an injunction restraining the defendants from obstructing them in the enjoyment of the said rights. The plaintiffs' case was that they had been in possession of these properties as permanent tenants since as far back as 1889. Alternatively they alleged that a permanent lease had been executed in their favour by the Jahagirdars of Darga who were the owners of this property in May 1911. At this time the property was subject to two simple mortgages which had been executed by the owners of the property in favour of one Ramdas in 1901 and 1902 respectively. On these mortgages a suit had been brought by the mortgagee, No. 21 of 1916. To this suit the present plaintiffs were cot impleaded though they were in possession of the lands. In the said suit a mortgage decree was passed and in execution of the decree the property was put to sale and purchased by the decree-holder himself for Rs. 1,900. Subsequently the auction purchaser defendant 1 sold the said property to defendant 2. On behalf of these defendants the plaintiffs' claim for declaration and injunction was contested mainly on two grounds. The plaintiffs' allegation that they were in possession of the property as permanent tenants was denied and a claim that the defendants themselves had acquired title to the property by adverse possession was set up. The learned trial Judge found that the plaintiffs had been in possession of this property since 1889 as alleged by them. He also found that the permanent lease on which the plaintiffs alternatively relied had been proved. The defendants' plea that the plaintiffs were not in possession of the property or that they had themselves acquired title to the property by adverse possession was negatived. On these findings the plaintiffs' suit was decreed. When the matter went in appeal the said decree was affirmed, though the lower appellate Court was not satisfied that the plaintiffs' possession as permanent tenants from 1889 had been proved. He, however, held that the permanent lease executed in favour of the plaintiffs in May 1911 was proved and according to him it was a valid lease which bound the defendants. He also found that there was no substance in the defendants' plea of adverse possession.
(3.)In the present second appeal the main point which Mr. Madbhavi urged before me for the appellants was that the permanent lease having been executed during the continuance of two simple mortgages would not bind the mortgagee or persons claiming through him. The lower appellate Court had not considered this question because it was not raised before it in this specific form. Accordingly, at the instance of Mr. Madbhavi I sent the case back to enable the lower appellate Court to make his finding on this question. Since then it has made his finding against the appellants and the matter has now come before me for final disposal.