Wanchoo, J. - (1.)This is an appeal on a certificate granted by the Nagpur High Court. The brief facts necessary for present purposes are these. One Ramchandar Jat originally owned Annas - 10/8 share in Mauza Tamalawadi while the rest belonged to others. Ramchandar executed a simple mortgage deed on July 27, 1920, in favour of Seth Ram Jiwan and two minors Ram Narain and Radhey Sham. The plaintiffs-respondents are the representatives of the mortgagees. On August 27, 1926, the defendant-appellant purchased Annas -/5/4 share belonging to the other shareholders in the village. Thereafter, the appellant brought a suit against Ramchandar who was lambardar of the village for profits, in which a decree was passed against Ramchandar. In execution of that decree the appellant purchased the entire Annas -/10/8 share of Ramchandar in the village about the year 1932. In consequence, the appellant became the owner of the entire village subject to the mortgage of the respondents on Annas -/5/4 share therein. On July 27, 1932, the respondents sued Ramchandar on the basis of their mortgage-deed and a preliminary decree for sale was passed in March, 1937. To this suit the appellant was also a party. The preliminary decree was followed by a final decree and thereafter the property was put to sale and was purchased by the respondents on March 1, 1940. This sale was confirmed on April 12, 1940, and a sale certificate was granted to the respondents. So by the year 1940 the respondents were the owners of Annas -/5/4 share in the village while the appellant was the owner of Annas -/10/8 share. The appellant was also a lambardar.
(2.)Ramchandar Jat held sir land in certain khasras with a total area of 252.49 acres. On the sale of Ramchandars share to the appellant, Ramchandar became an ex-proprietary tenant of his sir land. Thereafter Ramchandar was ejected from his ex-proprietary tenancy sometime in 1936 and the lands came into possession of the appellant. There were certain other lands which were nominally recorded as Muafi Khairati in the name of Ramchandars mother but were actually in the possession of Ramchandar. It appears that Ramchandar was ejected from these lands also and they came into the possession of the appellant. Further the appellant as a lambardar came into possession of certain other lands by surrender or otherwise.
(3.)The respondents filed a suit for partition before the Sub-Divisional Officer, Harda, in 1942. In that suit they claimed half share in the lands of Ramchandar and his mother which came into the possession of the appellant. They also claimed a share in other lands which came into the possession of the appellant as lambardar. Their case was that these lands were accession to the mortgage in their favour and they were therefore entitled to a proper share in them. This claim was resisted by the appellant before the Sub-Divisional Officer. On October 20, 1943, the Sub-Divisional Officer passed an order which in effect rejected the contention of the respondents and accepted the plea of the appellant.