- (1.) THIS is a plaintiff s second appeal in a suit for permanent injunction restraining the defendants from making any constructions on a portion marked Ka, Kha, Ga and Gha in the plaint map of the land described as Talab No. 676, situate in village Kalakapura. The trial Court dismissed the suit and the appellate court has on appeal confirmed the same.
(2.) THE trial court framed seven issues in the suit. On the first issue which was to the effect whether Hari Lal Singh was the owner of the tank in suit, if so did he mortgage the tank in favour of Sheo Baran Singh, if so when; the trial court found that Hari Lal Singh was the owner of the tank in suit and that he mortgaged it in favour of Sheo Baran Singh before the year 1319 Fasli. On issue No. 2, it was found that the plaintiffs were not owners of the tank in suit. Issue No. 3 was answered by the trial court by saying that the defendants had failed to prove that their Dalan existed at the site of the disputed constructions. Issue No. 4 was answered by saying that the plaintiffs having failed to prove their title, the suit was not maintainable. Under issue No. 5, it was held that the constructions in dispute being recent, the suit was not barred by time. On issue No. 6 the trial court had already held earlier, that the suit was not under-valued and the court-fee paid was sufficient. In view of the aforesaid findings, it was held on issue No. 7, that the plaintiffs were not entitled to any relief. Before the lower appellate court only two points were raised for consideration; (1) Whether the plaintiff appellants were owners of the land in dispute and the suit was maintainable; and (2) whether the old Dalan of the defendant respondents was situate at the site of the constructions in dispute and the suit was barred by time. The lower appellate court held that there was no evidence on record to indicate that the mortgage in question was made more than 60 years back and that it was never redeemed. According to the lower appellate court these two facts had to be proved by cogent and conclusive evidence but the plaintiff appellants had not produced any documents to indicate that the tank was ever recorded after 1323 F as having been mortgaged to Sheo Baran Singh or his heirs. The only evidence of entries in revenue records was of the entries of the year 1319 F and the entries in the Khasra of 1370 F which showed that the tank No. 676 belonged to Satya Narain Singh and others, namely, the plaintiff. The lower appellate court was not satisfied with this evidence as sufficient for inferring the continuance of the mortgage and criticised the oral testimony of Satya Narain Singh, one of the plaintiffs, on this point as very unsatisfactory with the following observations. " In the examination in chief he stated that when he had seen the mortgage deed he had found that it was executed in 1282 F. In cross examination be, however, stated that in 1320 F when he saw the mortgage deed it was 60 years old. All this evidence shows that actually this man never saw the mortgage deed and he was playing on his own imagination." " With these observations the lower appellate court held that there is no satisfactory evidence on the record to indicate that the mortgage deed was 60 years old on the date of filing of the suit. From the evidence this alone appears that in 1 319F the mortgage was in existence." The lower appellate court finally held that " it cannot therefore be said conclusively that the mortgage was 60 years old" or that the period of limitation for filing a suit for redemption has expired. It may be here observed that the suit was filed on February 18, 1964 which would be equivalent to 1371F. Satya Narain Singh has stated in his examination in chiefs : " Hari Lal Singh Ne Mere Pita Sheo Baran Singh Ke Nam Rahennama likha tha. Rehennama Ko Aaj Say 80 Sal Hogaya. 1320 F Ke Bandobust Ke Samai Mainey Dastawaz Dekha tha. 1282 F ka Likha huwa tha. Wah Rehennamma 75/ka tha. Bisheshar Dayal Katib they. Ram Govind wa Amira Singh Dixit Gawah the Katib wa Gawah Mar Gayey. Bahut Talash Karney par Bhi Dastawaz Nahi Mila" . The first sentence of this cross-examination is that " Jab Mainey Dastawaz Dekha wah 60 Sal Say Ziada Purana tha Uske bad Phir Dastawaz Nahi Mila."
(3.) TO read the statement of Satya Narain in the manner in which the lower appellate court has read it Is not fair to the witness. He did not say that he last saw the mortgage deed in the year 1320 F. He said in his examlnation-in-chief that he saw it during the settlement operations of 1320 F. He did not say that that was the last time he saw it. He had clearly stated that mortgage deed was of 1282 F. The witness was an old man of 75 years when he made the statement that he saw it in the Settlement of 1320 F and that It was of 1282 F. All that he stated In the cross-examination was that the mortgage deed was more than 60 years old when he saw it. Obviously either the witness was very poor in Arithmetic, or he was referring to some occasion other than the Settlement of 1320 F on which he saw the mortgage deed (which according to his statement in the examination-in-chief was of 1282 F), when he said in his statement in the cross-examination, that the mortgage deed was more than 60 years old at the time of his seeing it The lower appellate court held ft was not proved that the mortgage deed was 60 years old. The factum of mortgage was not doubted by the lower appellate court. It has taken It to be proved that the mortgage was in existence in the year 1319 F. The mortgage deed was lost. Being a deed executed in or after 1282 F the earliest available entry of the mortgage would be of the Settlement of 1319-1320 F. Extracts of that entry were filed by the plaintiffs In support of their case. No evidence was led by the defendants In rebuttal to show that the mortgage was not 60 years old when the suit was filed and there Is nothing to show that there was any documentary evidence other than that produced by the plaintiffs to prove the exact date of the mortgage, but the plaintiffs failed to produce the same. The entries in the revenue records between the years 1323 F to 1370 F would not have shown the year of the execution of the mortgage and the fact that the tank in suit is entered in the revenue records of 1370 F as the property of the plaintiffs, only supports the plaintiffs case that the mortgage was past the period of redemption. Be that as it may, the crucial finding on the basis of which the lower appellate court nonsuited the plaintiffs runs as follows: " It has now been argued before ma that the appellants being the Zamindars became the owners of the tank after the death of Hari Lal Singh. I am, however, of the opinion that it in no way helps the appellants. Even if the appellants are zamindars, the tenancy rights of Hari Lal Singh came to an end and they became owners as Zamindars. The mortgage also automatically came to an end because it appears to be the case of the appellants that Hari Lal left no heirs. This indicates that the mortgage has also lost all significance because the mortgagor died without leaving any heir, After the death of the tenant his tenancy rights came to an end and the Zamindars must have got possession over the tank. In that case the mortgage also came to an end and the Zamindars got possession of the tank in their capacity as Zamindar. After the abolition of Zamindari the tank and all other tanks being the tanks of Zamindars vested in Gaon Samaj. In these circumstances I conclude that in any view of the matter the appellants were in possession of the tank as Zamindars. After the abolition of Zamindari the tank vested in Gaon Samaj. I, therefore, confirm the finding of the learned Munsif that the applicants are not the owners of the tank in suit and that they were not in possession as such. ;