- (1.) THIS is a special appeal by the defendant appellant Mahant Prakash Nand disciple of Mahant Ramswaroop under Art. 18 of the Rajasthan High Court Ordinance, 1949.
(2.) THE plaintiff respondent Mala Din, minor filed a suit for the redemption of 60 Bighas of land and the possession thereof after payment of Rs. 300/-, in the court of Nazim Kotkasim on 22nd October, 1945, alleging that Jainarain the grand father of the plaintiff had taken a loan of Rs 200/- from Mahant Ram Swaroop, Guru of the defendant appellant, on Pos Sudi 3rd Svt. 1967 and executed a bond which provided that in case the payment is not made by Basakh Sudi 15th Svt. 1968. the debtor shall execute a mortgage deed of the disputed property sought to be redeemed in this suit, that in case of his failure to execute the mortgage deed, the creditor shall be entitled to file a suit for specific performance for the execution of the mortgage deed. THE plaintiff respondent further alleged that the debt in the bond was not paid as stipulated and Mahant Ram Swaroop filed a suit for specific performance of the contract against Jai Narain and Jaglia, brother of Jai Narain, for the execution of the mortgage deed which was decreed on the 20th December, 1916 by consent of th. 3 defendant in that suit and thereafter Ram Swaroop was put in possession of the disputed property THE consent decree provided that the defendants shall execute a usufructuary mortgage deed for the consideration of Rs. 300/- in favour of Mahant Ram Swaroop and shall get it registered under the then law of Registration. THE defendant who is legal representative of Mahant Ram Swaroop was in possession of the property as a mortgagee and he was served with a notice to hand over the possession of the property after redemption but he has failed to do so. This suit for redemption was filed with the prayer that the property in dispute be redeemed after payment of Rs. 300/- and the plaintiff be put in possession of the property. It may be noticed that the plaintiff respondent failed to make a mention in the plaint that a mortgage deed as provided under the decree for the specific performance was duly executed, but he filed along with the plaint a document Fard Intekhab, Ex. P. 2 of the disputed property in which it was mentioned that an entry in the record of rights was made by virtue of the mortgage deed dated the 28th December, 1916, for the sum of Rs. 430/ -. THE defendant appellants filed their written statements in which they denied the allegations made by the plaintiff respondent and pleaded that the plaintiff hid not produced any mortgage deed and had not specified the date of the mortgage and therefore, the suit should be dismissed. The suit was decreed by the trial court on the 30th of May, 1947, and the property was ordered to be redeemed after payment of Rs. 300/ -. The defendant appellants preferred an appeal to the court of the District Judge, Sawai Jaipur who dismissed the appeal but raised the amount of redemption from Rs. 300/- to Rs. 400/ -. The second appeal by the defendant appellants to this Court was dismissed by the Hon'ble Mr. Justice Ranawat on the 22nd of February, 1951, but he granted leave to the defendant appellants under Art. 18 of the Rajasthan High Court Ordinance to prefer an appeal to a Division Bench. Hence this appeal The first point that has been argued on behalf of the defendant appellant as that it was not alleged in the plaint that any mortgage deed was executed by the grand father of the plaintiff respondent in pursuance of the decree dated the 28th December, 1916, and the decree for the specific performance of the contract did not create the relationship of mortgagor and mortgagee between the parties in the absence of any mortgage deed He has rightly argued that the decree by itself does not create any relationship of mortgagor and mortgagee between the parties. Under Order 21, Rule 32 of the Civil Procedure Code, a decree for specific performance of a contract is to be enforced, in case the judgment debtor has willfully failed to obey it, by the court directing that the act, required to be done by the judgment debtor may be done by the decree holder or some other person at the cost of the defendant. A mere decree for specific performance of contract does not transfer any title to the decree holder unless further step is taken in the execution of the decree to have the deed executed either by the judgment debtor or by some other person as directed by the court Reference in this connection may be made to the case of Hakim Enayat Ullah vs. Khalil Ullah Khan (1 ). where in a suit of specific performance of contract for sale, it has been held that: - "so long as the sale-deed is not executed in favour of the decree-holder either by the judgment debtor in the suit or by the Court, the title to the property remains vested in the judgment debtor. " It is true that at the time when the decree for specific performance of contract in this case was passed there was no Civil Procedure Code in the former Jaipur State where the property in dispute is situated, Kotkasim being a part of the former Jaipur State. But under the decree dated the 21th of December, 1916, passed by the Nazim Kotkasim, the position is in no way materially different. The decree provided for the execution of the mortgage deed and merely because of the decree it cannot be held that the land in dispute was the subject of a mortgage for Rs 310/ -. Learned counsel for the appellant has argued that in this view of the matter, the learned single Judge was wrong in passing a decree for redemption. He has taken us to a number of authorities wherein it has been held that if the plaintiff files a suit for redemption of property basing his claim on a specific mortgage, but has failed to prove the same, he cannot succeed on the admission of a defendant that the property in suit was in his possession as a mortgagee on the basis of some other mortgage deed. The point does not arise in this form in the present case. But as considerable arguments have been addressed at the bar on this point; we express our opinion on this point as well the more so, as the authorities cited on this point are instructive to determine the real point in controversy. The Allahabad High Court has consistently held that the plaintiff is entitled to succeed on the specific cause of action alleged by him and he cannot get a decree for redemption on the basis of any other mortgage that may be found proved to be subsisting between the parties. In the case of Sheo Prasad vs. Lalit Kuar (2) a suit was filed on a mortgage of 1854. The defendant denied that there was any mortgage of 1854, and alleged that the property in dispute was mortgaged with him under three mortgages; the first of which was made in 1889. The suit was dismissed by the lower courts. It was argued before the High Court that the suit should have been decreed as the defendant himself admitted to be a mortgagee. Rejecting this argument it was observed in that case "in this case the rulings of this Court bind us as to the view of the law which we should follow ; and whether I agreed with them or not I should feel myself bound by them and should not question them. Settled principles of law administered by a Court of Justice ought not to be lightly disturbed or doubt cast upon them without very sufficient reason. Not only do I see doubt as to the correctness of those decisions of this Court, but I entirely approve of them. They are in accordance with the views of the Privy Council ; they are in accordance with the intentions of the Legislature and with principles of sound common sense and justice, according to which a man who brings a false case, or even brings a true case, and fails to prove it, should not get a decree on a different cause of action from that alleged by him, and a cause of action which he has repudiated in the Court of first instance and in the Court of first appeal, and only relies on as off-chance in the Court of second appeal. " This authority was followed by Allahabad High Court in the case of Mst. Anaragi Kanwar vs. Kashi Rai (3 ). This authority has been further followed in the case of Shah Gur Saran vs. Sahib Singh (4), by the Full Bench. The important point for decision in that case was one under sec. 19 of the Limitation Act. But Bajpai J. observed that it was incumbent for the plaintiffs in a suit of this kind to establish the specific mortgage which they had set up and if they failed to discharge this burden, either suit was liable to be dismissed. The same is the view of the Oudh Chief Court in the case of Mahadeo Lal vs. Pirthipal Singh (5 ). The Madras High Court in the case of Krishna Pillai vs. Rangaswami Pillai (6),has also taken the same view. It has been held that "the plaintiff having failed to establish the Kanom on which the suit was based should not have been allowed to fall back upon some other as to which the defendants had made the admission in question. Relating to the above proposition laid down in Krishana Pillai's case (6), it was observed in the case of P. V. Madhavan Vydir vs. Lakshmana Pattar (7), that - "as a general proposition there can be no objection to this statement of law, but there may be exceptions. The plaintiff might have been under a bona fide mistake and might have been led into the error by the conduct of the defendants. In such cases notwithstanding his failure to prove the specific mortgage, he may be permitted, by allowing him to amend the plaint, to claim a decree on the admission of the defendant. The Bombay High Court in the case of Bala vs. Shiva (8), has taken a somewhat lenient view of the plaintiff's right in a suit for redemption and it was observed that it was for the plaintiff who sues to redeem, when the defendant denies the mortgage to prove his title in the first instance, but, it has further observed, that where there are admissions of a mortgage and the court finds "that the admissions are trustworthy and may be legally used against all the defendants, then the burden would be shifted on the defendant in cases of this chapter, and if the defendant fails to place that burden, the plaintiff shall be entitled to a decree. " A perusal of the above authorities shows that it is always on the plaintiff to prove that the property sought to be redeemed was mortgaged by virtue of a mortage deed of a specific date as he has alleged and if he fails to prove, his suit ought to be dismissed. There is really no controversy on this point except that the observations in the case of Bala vs. Shiva (8), may be too wide. As to what should be the amount of proof that the plaintiff should adduce in support of this case, no hard and fast rules can be laid down. It depends upon the circumstances of each case. In the present case, there is no controversy either between the plaintiff or defendant that there was more than one mortgage deed regarding the property. The controversy is that the plaintiff respondent has not clearly stated in his plaint that there was a mortgage deed executed on 28th December, 1916, and that he was claiming to redeem the property in dispute under that mortgage deed. It was unfortunate that the plaintiff omitted to mention the facts of the mortgage deed in his plaint though in Ex. P. 2 ; copy of Fared Intekhab produced by him along with the plaint, there is a clear mention of a mortgage deed for Rs. 400/- executed on the 18th December, 1916. This 18th December. 1916, was found to be a mistake. The original document mentioned the date as 28th December, 1916. Before filing a suit the plaintiff had served a notice on the defendant on the 12th of August, 1945, that his grand father Jai Narain had mortgaged the property for Rs. 400/- and asked the defendant to deliver the possession of the property after taking the amount of Rs. 400/ -. After the written statement had been filed wherein the defendant appellant took the objection that no particular mortgage was produced by the plaintiff or was specified in the plaint, the plaintiff respondent atonce filed an application in the court under Order XI rule 12 of the Civil Procedure Code that as the defendant had raised the objection that the mortgage deed should be produced in the court, the mortgage deed being in possession of the defendant, he should be ordered to produce it under Order XI rule 14 of the Civil Procedure Code and his statement should be recorded. On this application, the defendant replied that he had not the mortgage deed in his possession and therefore, his statement was recorded on the 6th of February, 1947, in which he admitted that there had been a mortgage deed, but the same was with his Mukhtiar Ram Chander who was dead and the mortgage deed could not be found in spite of search. The court also passed an order after recording the statement of the defendant before framing of the issues that as the defendant had stated that he had not the mortgage deed with him, whatever legal inference from the non production of the mortgage deed can be drawn against him, shall be drawn. Thereafter, Ex. P. 2 the entry of Farad Ihtekhab which mentioned the mortgage deed was admitted by the defendant appellant. Ail these proceedings showed that though the plaintiff respondent had committed a grave mistake in not mentioning the mortgage deed in his plaint, yet he had taken all possible steps to place the mortgage deed in question before the court. There was no question in this case, therefore, of the plaintiff seeking to redeem any other mortgage deed than that of 28th December. 1916, which was in possession of the defendant appellant on his own admission. The plaint of course mentioned that the amount of consideration was Rs. 300/- only as mentioned in the decree of 28th October," 1916, but a sum of Rs. 400/-was stated to be the amount of consideration in the notice served on the defendant and produced in the court by him and also in Ex. P-2 The courts below went into the whole question and awarded the plaintiff respondent a decree for redemption. The argument on behalf of the defendant appellant is that the plaintiff had failed to mention the mortgage deed on the basis of which he sought to redeem the property, in the plaint and therefore his suit should not have been decreed. It has been observed by their Lordships of the Privy Council in the case of Haji Umar Abdul Rahi-men vs. Gustabji Muncherji Cooper (9), that - "it would introduce the greatest amount of uncertainty into judicial proceedings if the final determination of causes is to be founded on inferences at variance with the case that the plaintiff has pleaded and, by joining issue in the case, has undertaken to prove. But in applying such a principle the whole of the circumstance must be taken into account and carefully scrutinized. The question is in ultimate analysis one of circumstances and not of law. " In that case the plaintiff brought a suit for the recovery of Rs. 1800/- on the basis of a promissory note. The promissory note was executed on the Diwali day, the 5th November, but was dated the 7th November. The plaintiff and the witness whom he called insisted throughout that the date of the transaction was the 7th and that the note was signed then. When the whole of the evidence had been given, the plaintiff's solicitor suggested in his reply that the date of the disputed note and the date assigned by the plaintiff for the transaction might have been a mistake and that the note was post-dated and really signed on either the 5th or the 6th. The trial court decreed the claim holding that the note was signed on the 5th November, and not on the 7th November. The learned Judges of the the High Court held that it was a very fatal variance from the case pleaded and dismissed the plaintiff's claim. Their Lordships after going into the matter restored the judgment of the court of first instance. In another case of the Privy Council in the case of Sagarmull Nathany vs. John Carapiet Calstaum (10) it was held that "when a suit was based on a certain agreement, but its subsequent variance was not mentioned in the plaint, but was put in issue and contested and proved, their Lordships felt satisfied that notwithstanding the form of the plaint, the suit was fought by the parties deliberately upon issues substantially as farmed by the lower court and ought, upon that footing, to be determined. " We think that in the present case though the plaintiff had blundered foolishly in not mentioning the fact of the mortgage in the plaint, yet he had filed the Ex. P-2 along with the plaint which gives sufficient notice to the defendant and he tried to impress on the court by arguing to compel the defendant to produce the mortgage deed. Their Lordships of the Supreme Court in the case of Kedar Lal Seal vs. Hari Lal Seal (11) observed that - "the Court would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however, clumsily or inartisti-cally the plaint may be worded. In any event it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs. " It may be mentioned that the defendant himself had taken notice of Ex. P-2 in his written statement by saying in one of the paragraphs that this document was contradictory to the judgment of 28th October, 1916 of Nazim, Kotkasim. Presumably he intended to say that the judgment mentioned Rs. 300/-, while Ex. P-2 mentioned that the mortgage-deed was for Rs 400/ -. But the defendant had sufficient notice even at the time of the filing of written statement, of the execution of the mortgage deed, sought to be redeemed. The suit has been filed in the the year, 1945, and it has been contested throughout with great vehemence. We think that under the circumstances of the case, substantial justice having been done, we should not set aside the judgment and decree of this Court dated the 22nd February, 1951. We, therefore, dismiss the appeal of the defendant appellant, but award no costs to the plaintiff respondent as he himself had been responsible for the muddle of the case. .;