Wanchoo, C. J. - (1.) THIS is a second appeal by Mardan Ali and others against the decree of the Additional District and Sessions Judge No. 2 Jodhpur.
(2.) THE appellants were plaintiffs in a suit for redemption brought by them against Bastimal and Bastiram. THE case put forward in the plaint on their behalf was this. They were owners of a shop in Rangrej Bazar in the town of Pali. They mortgaged it in Smt. 1973 with Bastiram defendant for Rs. 300/-through a registered deed and handed over the title deeds to Bastiram. After the mortgage, Bastiram spent Rs. 30/-over repairs, and the plaintiffs admitted that they had to pay that amount also. They went on to say that Bastiram assigned his mortgagee rights to Hazari-mal sometime afterwards. On the death of Hazarimal, these mortgagee rights came to his son-in-law Bastimal defendant by gift, and consequently he was also made a party to the suit. The plaintiffs prayed for redemption of the mortgage property on payment of Rs. 330/ -. Defendant Bastiram admitted the claim and said that as possession was with Bastimal, decree should be passed against him and not against Bastiram. The suit was however resisted by Bastimal. His case was that he had no knowledge of any usufructuary mortgage of Sambat 1973 in favour of Bastiram, and that he was in possession of the shop, and it was his property. It was said that if any mortgage deed was executed, it was a fictitious document. It was also denied that any mortgagee rights were assigned to Bastimal. It was alleged that the shop was the property of Hazarimal father-in-law of Bastimal, & came to the latter by gift from Hazarimal. It was also alleged that Bastimal and his father-in-law had spent Rs. 514/9/3 on the repairs of the shop. A number of issues were framed by the trial court and it came to the conclusion that the shop had been mortgaged by the plaintiffs to Bastiram who, in his turn, assigned the mortgagee rights to Hazarimal from whom Bastimal got it by gift. He, therefore, passed a preliminary decree in favour of the plaintiffs. Bastimal went in appeal to the District Judge, and his appeal was allowed by that court. The main question so far as Bastimal is concerned was whether the sub-mortgage in favour of Hazarimal by assignment of the mortgagee rights had been proved. The appellate court came to the conclusion that the submortgage had not been proved,and therefore dismissed the suit. It also held that the suit for redemption could not succeed against a third person who was in possession for a long time when no sub-mortgage had been proved. The plaintiffs appellants have come in second appeal to this court. The main question for decision now is the same which was raised in issue No. 2 framed by the trial court, namely whether defendant No. 1 assigned his rights in the mortgaged property to the deceased Hazarimal for Rs. 330/-, and delivered possession to Hazarimal. Learned counsel for the appellants has admitted that there is no document by Bastiram assigning his mortgagee rights to Hazarimal. Such assignment could only have been made by a registered instrument, and therefore it is clear that no sub-mortgage was ever created in favour of Hazarimal from whom Bastimal got this property. The appellants relied on document Ex. P. 1 said to have been executed by Hazarimal in favour of Bastiram in Smt. 1978. This document was relied upon by the trial court as creating the sub-mortgage but obviously it cannot do that. The lower appellate court has not relied on this document, and has held that it is suspicious and was produced at a late stage and is not admissible in evidence without registration. There is no doubt that this document was produced by the plaintiffs long after issues had been framed, and there was no application under Order 13 rule 2 for permission to produce the document, and the court recorded no reasons as required by Order 13 rule 2 for admitting the document at a late stage. It is also remarkable that this document was not proved when the plaintiffs produced their evidence first, though one should have expected that they would prove the sub-mortgage as without that their suit would fail. It was only when the plaintiffs were giving evidence in rebuttal that one witness proved this document. I must say that this procedure is extraordinary and it is lucky for the plaintiffs that no objection was taken on behalf of defendant Bastimal to the production of this document at such a late stage and to its proof in rebuttal. However, it does not appear to me necessary to decide whether it is genuine document and if it is so whether it is admissible in evidence without registration and what rights it confers on the plaintiffs. This suit was brought by the plaintiffs treating Bastimal as a sub-mortgagee. It is now clear that no sub-mortgage in favour of Bastimal's predecessor Hazarimal was ever created by Basti-ram by registered instrument. Under these circumstances, the suit as it was brought, must fail. Learned counsel for the appellants however urges that this should be treated as a suit on the basis of title against Bastimal, as there is little difference between a suit for redemption and a suit for possession based on title. He relies on A'. Appamma vs. S. Chinaveadu (A. I. R, 1924 Madras 292 ). One of the learned Judges in that case held that where plaintiffs sued for redemption, which could not be granted as the mortgage deed was unregistered and could not be admissible to prove the terms, but which was admissible to prove the nature of possession, they could apply for amendment to convert the suit into one to recover possession as owners but that this could not be allowed in second appeal. The other learned Judge held that where there was a transfer of possession, though the mortgage deed was unregistered and could not therefore be relied upon, other considerations arose. He pointed out that the difference between a suit for redemption and a suit for possession based on title was comparatively little, and therefore amendment might be allowed. It may be pointed out that that case reachtd the High Court in second appeal, and the First Appellate Court had already remanded the suit directing that it be tried out as a suit for possession based on title. The position in the present suit is however different. The suit has been dismissed by the lower appellate court. There is no prayer before me for amendment of the plaint to convert the suit into one for possession based on title so far as Bastimal is concerned. The suit was filed as far back as October, 1942 i e. , almost ten years ago. It seems to me that it is too late in the day now to allow amendment even if the plaintiffs desire it and to begin the whole matter afresh as against Bastimal. The best course seems to be that the present suit against Bastimal, based as it is on a submortgage in his predecessor's favour should be dismissed, and the plaintiffs should be left to file a fresh suit, if so advised, against him based on title. All those questions relating to the genuineness of Ex. P. 1, its admissibility, the nature of the use to which it can be put and also the question of adverse possession of Bastimal will have to be gone into throughly in such a suit.
(3.) THAT leaves the case against Bastiram defendant No. 1. He has admitted the mortgage, and strictly speaking there should be a decree for redemption against him. But it would be a futile decree, for no money that the plaintiffs might deposit will go to him, and he is not in a position to give back possession to the plaintiffs. Under these circumstances, the best course seems to be that the present suit should be dismissed, and the plaintiffs should be left to bring a suit for possession based on their title against Bastimal. In it, they should implead Bastiram as pro forma defendant to show how Bastimal came to be in possesion of the property. I therefore dismiss the appeal and order the plaintiffs and Bastiram defendant No. 1 to bear their own costs. I also order the plaintiffs appellants to pay the costs of Bastimal defendant respondent in all the courts. It would be open to the plaintiffs to bring a suit for possession against Bastimal on the basis of their title in which all questions relating to the document marked Ex. P. 1 in this suit, and question of adverse possession will be gone into. Bastiram may be made a pro forma defendant in that suit as already indicated. .;