Shelat, J. - (1.) One Soni Virji Sundarji for himself and on behalf of the Hindu Joint family of which he was the Karta executed a deed of mortgage, dated December 11, 1907 in respect of two shops in Jamnagar in favour of Jetha Roopchand, to secure repayment of Rs. 800 advanced to the said family. The said mortgage was with possession and was redeemable in 8 years. On August 25, 1930 the coparceners of Virji, who had died in the meantime, by an agreement of sale agreed to sell and respondents 1 and 2 agreed to purchase the said two shops together with certain other properties for Rs. 3,200 subject of course to the said mortgage. In spite of the said agreement of sale the coparceners of Virji by a registered deed of sale, dated September 10. 1930 sold the said shops and the said properties to Lalji Jetha and Kanji Jetha, the sons of the said Jetha Roopchand, for Rs. 3,400. The said Lalji and Kanji both died and the appellants and respondents 3 (1) to 3(1) are the heirs and legal representatives of the said Lalji and Kanji, respectively.
(2.) On October 1, 1930, respondents 1 and 2 filed a suit being Suit No. 263 of Samwat Year 1987 (1931 A.D.) for specific performance of the said agreement, dated August 25, 1930 against the said mortgagors and the said Kanji, being defendant No. 5 therein. Lalji, however, was not made a party defendant. Respondents 1 and 2 alleged in the suit inter alia that as Kanji -as anxious to purchase the said shops, he, in collusion with the said mortgagors and with malafide intention, sought to purchase the said properties for a sum higher than the one agreed to by them and got the mortgagors to commit breach of the said agreement in order to deprive them of the benefit of the said agreement. The plaint contained 8 prayer for specific performance against the mortgagors being defendants 1 to 4 and for a decree against Kanji to hand over possession of the said shops on respondents 1 and 2 paying off the amount duo under the said mortgage. The basis of the suit thus was that Kanji had not acquired any ownership in the said shops and was only possessed of the mortgagee's rights therein. The Trial Court declined to grant specific performance and awarded damages. On appeal by respondents 1 and 2 the Joint Civil Judge by his judgment and decree, dated August 16, 1943 reversed the judgment and decree of the Trial Court dismissing the suit and allowing the appeal passed a decree for specific performance against the said mortgagors. The defence of Kanji that he was a hone fide purchaser without notice was rejected. The Joint Civil Judge observed in his judgment as follows- "All the equities in the case are in favour of the plaintiffs and I, therefore, pass a decree for specific performance of the contract as prayed for by them in their plaint subject of course to the modification mentioned above re, their deferred right to secure possession of the shops later on after redeeming the same from the 5th defendant." He directed Kanji on payment of Rs. 2,065 to him by respondents 1 and 2 to hand over possession of the said shops and also directed that: 'all the defendants-respondents should execute the necessary registered formal sale-deeds about all the five properties in favour of the plaintiffs subject of course to Kanji Jetha's right to continue in possession of the two shops till the plaintiffs redeem the mortgage of 1907 Ex.. 21." Neither Kanji nor the mortgagors filed any appeal against the said judgment and decree and, therefore, that decree became final and binding as between the parties.
(3.) On October 8, 1947 respondents 1 and 2 filed Suit No. 283 of 1949 for redemption and possession against Kanji and Lalji. In his written statement Lalji alleged that since he was not a party to the earlier suit the said decree was not binding upon him, that as a result of the said deed of sale dated September 10, 1930 he and Kanji became absolute owners and the right of redemption by the mortgagors and those claiming through them became extinguished, that Kanji had by an oral sale transferred his right, title and interest to him and, therefore, he was the absolute owner, and lastly that as a result of the sale-deed he acquired ownership, that his possession was to the knowledge of the plaintiffs and was adverse against them and, therefore, the suit was barred by limitation. Kanji also filed a written statement supporting Lalji in regard to his having transferred to him his right, title and interest in the said shops.;