- (1.)This is the plaintiffs second appeal against an appellate judgment and decree of the learned Additional Commissioner Jaipur dated 26.6.59. Mangia the plaintiff filed a suit for redemption of a usufructuary mortgage alleged to have been executed in favour of the respondents on Baisak Badi 2, Svt. 198 for a consideration of Rs. 91/ -. The defendant denied the factum of mortgage and inter alia alleged that they held the land in their own rights as a Khatedar tenant. The trial court after recording the evidence of the parties dismissed the suit. In appeal, the learned Addl. Commissioner observed that as the alleged mortgage was admittedly made by a conveyance which was un -registered,the trial court was not lawfully justified in allowing the plaintiff to prove the factum of mortgage by secondary evidence because when the original document was itself inadmissible in evidence for want of proper registration secondary evidence to prove its execution was not permitted under the law. On this ground alone he confirmed the decision of the trial court and in the result dismissed the suit. Mr. Navneet Kumar, counsel for the appellant urged that the learned Additional Commissioner failed to appreciate the correct position of law in respect of the controversy placed before him. The submission, in the first place, was that the said document was not compulsarily registrable as the amount of consideration was less than Rs. 100/ - and secondly the plaintiff was fully entitled to prove the relationship between the parties and the nature of defendants possession over the land by oral evidence. It was also urged that the learned Additional Commissioner should have discussed the entire evidence of the parties on the issues framed in the suit, and given his independent finding thereon; and a failure to do so renders his decision as no judgment in the eye of law within the meaning of O. 41, R. 30 C.P.C. We have carefully examined these contentions. The original mortgage deed has not been produced either by the plaintiff -appellant or, on being called upon to do so, by the defendant -respondents. A copy of the same as required by sec. 63 of the Evidence Act has also not been produced in the case. The plaintiff, therefore, sought to prove the factum of mortgage by oral evidence. The evidence of these witnesses may not be admissible to prove the contents of the alleged mortgage deed as envisaged in sec. 91 of the Act but there was nothing in law to prevent him to prove the factum of mortgage and the consideration for mortgage. We do not think, proving factum of mortgage, is the something as proving the terms of the mortgage nor do we think that proving the consideration for a mortgage is the same thing as proving the terms of the mortgage. In the present case, according to the contention of the plaintiff, delivery of possession was given to the mortgagee respondent and the consideration of mortgage was less than Rs, 100/ -. The law, therefore, did not require to validate the transaction that a registered mortgage deed or any deed whatsoever should be executed. The plaintiff was, therefore, fully entitled to prove his claim by oral evidence. In 1955 RLW page 190, it was held by the Rajasthan High Court that there is no difference between a suit for possession containing a prayer for allowing the defendant such sum of money as he may be entitled to under the previous transactions and a suit for redemption on payment of mortgage amount because in reality a suit for redemption is nothing more than a suit for possession with the additional prayer for letting the defendant have his money due to him before he can be dis -possesed of the property. Again, in another unreported case -Bhola Vs. Board of Revenue for Rajasthan - -Civil Writ Petition No. 224 of 1953 decided on 15th April, 1957, a Division Bench of the Rajasthan High Court held that the in -admissibility of an un -stamped document or unregistered document or of secondary evidence of such document as aforesaid docs not prevent the admissibility of other evidence to prove the relationship of mortgagor and mortgagee. The same view was re - affirmed in RLW 1958 page 457. In AIR 1960 Raja,sthan I, a similar question in a different context came up for determination before a Special Bench, where it was held "the rights of the parties can be regulated by laws if no valid agreement exists. It is not substituting a new contract but giving effect to a relation ship created by the operation of Jaw. The provision of sec. 49 of the Rajasthan Registration Act or sec. 91 of the Evidence Act also are not affected because an unregistered document can be availed of for the purpose of showing character and nature of possession if the possession is transferred under such documents. The Board of Rev. in RRD 1958 p.92 on the authority of a number of decisions of the various High Courts also held that when the mortgagee has been in possession for more than 12 years, there comes into existence a legally operative mortgage and that mortgagee acquires by prescription the rights of a mortgagee. Hence the mortgagor is entitled to redeem his property as a suit for redemption on payment of mortgaged money is entitled to redeem was property as a suit for redemption on payment of mortgage money is in essence of suit for recovery of possession. Again in RRD 1959 page 64 the Board held that the inadmissibility of an un -stamped document or an unregistered document or of secondary evidence of such document does not prevent the admissibility of other evidence to prove the relationship of mortgagor, the factum of mortgage, consideration of mortgage and the date of the mortgage as well. On the authority of these decisions of this court as well as of the other various High Courts, we hold that the grounds on which the learned Additional Commissioner dismissed the appeal are not maintainable. He had before him on the record, the statements of several persons examined by the plaintiff to prove the relationship between the parties and the nature of the possession over the land held by the defendants. He should have given his independent finding on the issues involved in the case after weighing and discussing, in reasonable manner, the probative value of the oral and documentary evidence on record. We would have probably done so ourselves but have refrained to do so as a very valuable right could have been in the event of our doing so denied to the parties. Accordingly we allow this appeal, set aside the order of the lower court and remand the case back to him for a fresh decision in the light of the observations made above.
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