- (1.) THIS is a second appeal by the plaintiff in a suit for redemption. The appellant Rooplal as assignee of the equity of redemption from Kishna sued the respondent Uda for redemption of a mortgage of a house situated at Rajnagar on the allegations that it had been mortgaged by the vendor Kishna to Ghasi, father of defendant, in Samwat 1951 for Rs. 25/- and thereafter the mortgage money was raised to Rs. 211/- on Mangsar Sud 4 Samwat 1955. The defendant denied the mortgage and asserted his own title to the property. The trial court decreed the suit but on appeal, it was dismissed.
(2.) IN this second appeal an, application was presented that two documents, which were not in the knowledge of the plaintiff but had subsequently been discovered and which were material to the points in dispute, may be admitted in evidence. One of the documents is alleged to be an agreement by the defendant executed in favour of Kishna vendor in which Uda admitted his possession of the house in dispute as a mortgagee and stipulated that the cost of a particular wall to be built by Uda for his convenience will not be an encumbrance on the property. This document, if genuine, was important and material in so far as it contains an acknowledgment of the existence of the mortgage but this document was in possession of Kishna who is predecessor in title of the plaintiff and it is not sufficient to say that Kishna being illiterate did not know of the document and that it was only discovered by an accident when Bansilal, son of the plaintiff examined certain documents found by Kishna in some old bamboo pipe. The house was in possession of the defendant at the time when the plaintiff took assignment of the equity of redemption and it was his duty to obtain all documents from the vendor which would go to prove the mortgage. The document being in the possession and knowledge of kishna, the plaintiff was bound to produce it as soon as the defendant denied the existence of the mortgage. The other document is a decision by the Hakim of Rajnagar dated 30th of June 1938 between Gangaram and Kishna vendor. Gangaram had filed a suit for replacing certain Parnalas at the cost of Kishna who was alleged to have dismantled them and the suit was decreed. This document purports to show that the house in dispute was the ownership of Kishna in Samwat 1898 but this has nothing to do with the fact of mortgage which is sought to be established in this case. Again, since Kishna was a party to this litigation, it could not be said that it was a recent discovery. It may be observed that the law relating to the production of additional evidence in an appellate court is by now well settled. In Parsotim Thakur vs. Lal Mohar Thakur (A. I. R. 1931 P. C. 143) it was laid down that the provisions of O. 41, R. 27 are clearly not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and fill up omissions in the court of appeal. Under R. 27 CI. (1) (b) it is only where the appellants Court requires to enable the Court to pronounce judgment or for any other substantial cause that production of fresh evidence can be permitted unless the case comes within CI. (1) (b) of that rule. This view has been reiterated in Sir Mohmmad Akbar Khan vs. Ml, Moti (A. I. R. 1948 P. C. 36) It was argued that the discovery of new and important evidence which would have entitled the appellant to obtain a review of judgment may be a substantial cause within the meaning of R. 27, (1) (b) of O. 41. Reliance was placed on Mt. Durga Tewary vs. Ramrati Kuer (A. I. R. 1937 Pat. 584 ). A closer examination of the rule, however, makes it clear that the requirement is to be of the Court for any substantial cause and it is not the requirement of a litigant which is material in considering whether or not additional evidence will be allowed to be produced. The Bombay High Court in Mahadeo Bhimashanker vs. Fatumiya Husseinbhai (A. I. R. 1948 Bom. 337) has taken the view that the words "or for any other substantial cause" in sub-rule (1) (b) of Rule 27 did not give the Court jurisdiction to entertain an application for recording further evidence on the grounds which would enable an application to be entertained under O. 47 R. 1 of the Code of Civil Procedure. In the present case, the grounds are not even such as could support an application for review under O. 47, R. 1 as it has not been shown that the plaintiff who stands in the shoes of Kishna vendor could not discover these documents to with due diligence. I, therefore, disallow the petition for permission to adduce further evidence in second appeal. On the merits, it was argued that the oral evidence should be considered sufficient to prove the mortgage. Reliance was placed on the oral evidence of three witnesses Dalchand, Modidas and Bhanwarlal. Dalchand has stated that he had not seen any document of mortgage. Modidas and Bhanwarlal state having seen a document of mortgage with the defendant and even advancing some money on that security but they expressed ignorance about practically all matters concerning that document. They do not state who was the scribe or the attesting witness. On top of this, evidence becomes unreliable when Bhanwarlal, who is alleged to have advanced the loan to Uda, states that he did not take a receipt for the loan advanced to Uda or a receipt for the document when the security was returned to him on repayment of loan. Reliance was placed on document Ex. P. 2 alleged to have been executed by Chaturbhuj, father of Kishna, dated Mangsar Vad 6 Samvat 1956 purporting to effect a mortgage of some other property in favour of Noorkhan, in which the house in dispute is mentioned in the boundaries and as one belonging to Chaturbhuj in mortgage with Ghisa, father of Uda. The argument is that the document was attested by Ghisa and therefore, Uda was bound by the statement mentioned in the deed. It appears from a persual of the deed that Ghisa's attestation is in the hand of somebody else and the attestation has not been proved by any evidence. Secondly, the attestation of a document does not amount to an admission by the attesting person unless it can be proved that the document was read over to him and that he made an attestation conscious of the statement made in the document. Another weakness in the plaintiff's case crops up by this document as while the mortgage is stated to have been made by Kishna in s. 1951 and 55, Kishna's father Chaturbhuj is proved to have been alive in S. 1956 by this document Ex. P. 2 and no explanation is forthcoming why Chaturbhuj was not a party to that mortgage. In my opinion, the learned District Judge had come to a right decision that the plaintiff has failed to prove the mortgage set up by him and this appeal fails and is dismissed. The respondent has not appeared and therefore no order as to costs. .;