- (1.) THE circumstances that give rise to this appeal may briefly be stated thus : THE respondent Jawahardas brought a suit on 26. 11. 52 against the appellants Gopal Singh and Man Singh in the court of the Assistant Collector, Malpura for recovery of possession over the disputed land (Khasra No. 1981, village Chandsen, Tehsil Malpura ). It was alleged in the plaint that the ancestors of the defendants mortgaged the disputed land with the plaintiff, that this mortgage had become more than 31 years old in Smt. 1998, that it had, therefore! become foreclosed, that thereby the plaintiff had become the khatedar tenant, that on thirtieth May, 1946 the defendants had wrongfully dispossessed the plaintiff and it was therefore prayed that the defendants be ejected from the disputed land, that the plaintiff be put in possession thereof and that he be declared the khatedar tenant of the same. It was also averred in the plaint that immediately after the alleged dispossession the plaintiff filed a summary application in the Tehsil Malpura for Intzam Kasht and thereafter instituted a regular suit against the defendants for recovery of possession. THE suit proved futile because of the fact that the plaintiff omitted to mention therein the fact of the mortgage and claimed to be the tenant of the disputed land himself. That suit came up to the Board which held that as the plaintiff was shown to be a mortgagee and not the tenant that suit was not maintainable. THE plaintiff further averred that on the dismissal of the suit the present suit was instituted by him. THE defendants denied the claim and alleged that the disputed land was mortgaged in Smt. 1990, that the mortgage was valid for a period of 10 years only, that it came to a termination in Smt. 2000 and that since Smt. 2001 they had been in rightful possession of the disputed land and that the plaintiff was not entitled to any relief. After framing a number of issues and recording the evidence of the parties the trial court held that the plaintiff had no right to seek possession from the defendant and hence the suit was dismissed. THE plaintiff went up in appeal before the Additional Commissioner Jaipur who allowed the appeal without going into the merits only on the point that as the plaintiff was not permitted to adduce secondary evidence of the mortgage deed the case should be decided therefore afresh. THE defendants have come up in second appeal against this decision.
(2.) THE first point that emerges for consideration in the case is the year when the mortgage was created. According to the appellants it was created in Smt. year 1990 and according to the respondent in Smt. year 1967. For purpose of this appeal before us it is not necessary to record any finding on this issue. Suffice it to observe that in either case was it necessary that the document of mortgage should have been registered and if it was not registered it would be in-admissible in evidence. This position has been conceded before us by the parties. We may, however, refer to the various Hidayats of the Alia Council of the former Jaipur State, dated 26. 2. 1895 and 19. 11. 95 which made it perfectly clear that as early as 1895 A. D. a mortgage deed was compulsorily registrable and was inadmissible in evidence if unregistered. In the present case the respondent admits that the mortgage deed was not registered. The next question that would arise would be as to admissibility of secondary evidence in such a case. The learned Additional Commissioner has observed that as the evidence led by the respondent has proved destruction of the original mortgage deed secondary evidence was admissible. This is not a universally correct proposion of law. If the original itself is found to be inadmissible, the party relying on it is not entitled to introduce secondary evidence of its contents. Act pre-supposes that, but for one or more of the barriers to its production stated in the section, the document would have been capable of proving its contents under sec. 64 read with sec. 62. It would therefore be "a manifest absurdity to hold that secondary evidence may be given to establish a fact, proof whereof by primary evidence is forbidden". Under no circumstances can secondary evidence be admitted as a substitute for inadmissible primary evidence. A party resting his claim on a mortgage deed which requires to be registered, where he has failed to get it registered, and is unable to use it in evidence, cannot be allowed to turn round and say "i can prove my title by secondary evidence". It has, therefore been held that contents of a document which is inadmissible in evidence owing to its not having been registered as required by law cannot be proved by secondary evidence. (I. L. R. Raj. 69 and Munirs Law of Evidence, pages 527 and 528 ). The learned Additional Commissioner was therefore clearly in the wrong in holding that under the circumstances of the present case secondary evidence could be led in. We may further observe that even if it were admissible under sec. 65 of the Indian Evidence Act it could not have been so admitted in the present case because of the failure of the respondent to prove loss or destruction of the original document. The trial court examined the evidence led on the point and came to the conclusion that it was not strong enough to prove the destruction as alleged. The learned Additional Commissioner appears to have been under the impression that the trial court had held the destruction of the original document to be proved. This was a clear mis-conception. No reasons have been advanced by the learned Additional Commissioner to hold a contrary view. We have ourselves examined the evidence on the point. To our mind it provides neither a convincing nor an impressive reading on the point. It is so vague and un-satisfactory as not to be the basis of any valid in-terference. We, therefore, agree with the trial court in holding that the respondent had failed to establish the destruction of the original document and for this additional reason as well the decision of the lower appellate court would be untenable (AIR 1949 Alld. , 677 ). It is also to be noted that the learned Addl. Commissioner committed to examine the evidence on record. If he had done so it would have become clear to him that whatever secondary evidence regarding execution of the original document could have been produced in the case was in fact actually produced inspite of a decision of the trial court to the contrary. Hardev a witness of the respondent stated that the mortgage deed was executed in Smt. 1967. It was written by Shrinarain and was attested by Maharamdas Babaji and Hardev (witness ). He has also stated that scribe and Maharamdas attesting witness died long ago. In other words Hardev is the sole person alive in the world now who could depose about the execution of the document besides the respondent himself,leaving, aside the contents thereof. Even if the respondent is now permitted to lead secondary evidence it would hardly be of any practical utility for none but Hardev holds any knowlege about the execution of the document. There may be possibly some persons who may have read it after its execution and their statements may amount to secondary evidence under Clause 65 (5) but secondary evidence about the contents would be inadmissible because of want of registration in respect of the original document itself. The obvious result, therefore, is that the learned Additional Commissioner has disposed of the appeal on a preliminary point only with a decision which is clearly untenable. The appeal shall, therefore, have to be remanded back to him for a decision on merits. Elaborate arguments were addressed to us on the question whether mortgagee rights can arise from an unregistered mortgage deed. Different rulings of the Indian High Courts were cited before us. It is not at all necessary to refer to any one of them for as far as we are concerned the matter stands settled finally and authoritatively by a Special Bench decision of the Rajasthan High Court in AIR 1960 Raj. , 1. The entire case law on the point was examined in this decision and it was held that by virtue of sec. 28 of Limitation Act the limited right of mortgagee can be acquired by adverse possession even if the mortgagee has obtained possession under a void or inoperative mortgage deed. The date of the creation of the alleged mortgage could thus assume added significance in the context, as it alone will decide as to whether the limitation allowed for the mortgagors to recover possession had run out or not. Sec. 28 of the Indian Limitation Act lays down that "at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished". The right that is extinguished cannot be any thing more than the door purports to prescribe for. Thus where the owner has absolute title to the property to the adverse possession claims to be entitled only to a limited interest, it is only such interest of the owner that is extinguished by the operation of the section and acquired by the wrong door. The respondent in the present case seeks mortgagee rights through prescription by adverse possession. Such a person can bring a suit for possession of the property if he is dispossessed of it. What ought to be the limitation for such a suit would depend upon a number of facts which cannot be examined in this second appeal. It is the first appellate court which should determine them. We, therefore, allow this appeal, set aside the order of the lower appellant court and remand the case back to it with the direction that the appeal filed before it should be heard and decided on merits in accordance with law. .;