BARKATALI Vs. GIRDHARI SINGH

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff Barkatali in a suit for redemption of a mortgage in respect of a certain plot of land situate in the city of Udaipur, which is said to have been made by his father in Svt. 1974 in favour of the defendant respondent. The plaintiff's case was that so far as he was able to find out, the disputed land was mortgaged usufruclually for a sum of Rs. 703/- and the date of the mortgage was Jeth Vadi 13. Svt. 1974. The plaintiff further alleged that he had given a notice to the defendant for redemption, but the latter had stated in reply that the said land had been sold by the former to the latter, which was utterly false. The plaintiff, therefore, prayed for redemption on payment of a sum of Rs. 703/- or such sum as the court might find due. The defendant resisted the suit. He denied the mortgage. He further contended that the plaintiff's father Akbarali had sold the suit land to the defendant for a sum of Rs. 1,009/- by a sale-deed dated Asoj Sudi 7 Svt. 1901 (corresponding to some time in 1924 A. D.) and that the defendant was, therefore, in possession as a vendee and no question of redemption arose at all. The defendant further stated that he had spent a good deal of money by way of improvements upon the property; but as he did not raise his claim with any particularity on that point, it was not at all necessary to deal with that matter. The trial court dismissed the suit on the ground that the plaintiff had failed to prove the specific mortgage upon which he had brought his suit. It also came to the conclusion that the sale-deed railed on by the defendant though unregistered was admissible in evidence for the purpose of part-performance under sec. 53 (a) of the Transfer of Property Act, and, it was proved that the defendant held the suit property as a vendee and not as a mortgagee, and therefore the plaintiff was not entitled to recover possession of the said property. On appeal, the learned Civil Judge found that the plaintiff appellant had failed to prove that there was a subsisting mortgage at the date of the suit. On the question of part-performance, the learned Judge held that as no such plea had been taken by the defendant in the written statement, he was not entitled to succeed on that doctrine. He further gave a sort of a finding that the defendant was in adverse possession for the statutory period, and, therefore, could not be deprived of his possession of the suit property, but went on to hold that as the plaintiff had failed to prove the specific mortgage which was subsisting at the date of the suit, there was no necessity to give any finding on the question of the defendant's adverse possession, and in that view he dismissed the plaintiff's suit. THIS appeal has been preferred from the above judgment and decree.

(2.) IT was contended with great force by learned counsel on behalf of the plaintiff appellant that the courts below had looked at the case from an entirely erroneous angle and that there was sufficient material on the record to establish the mortgage set up by the plaintiff. In fact it was urged that that there was a mortgage, stood proved from the defendant's own evidence. IT was, therefore, contended that the plaintiff was entitled to a decree for redemption particularly because the deed of sale which was relied on by the defendant was unregistered and being com-pulsorily registrable, it failed of its effect and did not create any title in respect of the immovable property in question. In elaboration of his argument, learned counsel laid particular emphasis on the circumstance that the quantum of proof which the courts should expect from a mortgagor in a case like the present should not be incommensurate with the opportunity which he had of producing such evidence. IT is notorious, it was said, that a deed on mortgage was contained in a single document which remained in the possession of the mortgagee and no counterpart thereof was at all retained by the mortgagor, so that if the mortgagee held back the document, the mortgagor was naturally placed at a great disadvantage. The proposition was, therefore, advanced that the burden to prove the mortgage which initially rested with the plaintiff was not a very heavy one and had been completely discharged, and the courts below were entirely wrong in holding that the plaintiff had failed to prove the specific mortgage which he had set up in the plaint. Learned counsel relied on Raja Bishan Dutt Ram Panday vs. Narendar Bahadoor Singh (l) and Bala vs. Shiva (2 ).