- (1.) THIS second appeal has been filed against the order of the Revenue Appellate Authority, Kota, dated 28. 5. 63 confirming in appeal the judgment and decree of the Sub-Divisional Officer, Sawai Madhopur, dated 24. 8. 62, whereby the learned Sub-Divisional Officer had decreed the suit of the respondent for the redemption and delivery of possession of the suit land. The allegation of the respondent is that the suit land was in her khatedari and mat the same had been mortgaged with possession to the appellants by her husband. In Svt. year 1998, she needed some money whereupon an account was struck of the previous dues and after taking another sum of Rs. 20/-, she executed a mortgage deed for Rs. 85/- in favour of appellant, Guphran Ali. She prayed that the land be now redeemed and redelivered to her under Sec. 43 of the Rajasthan Tenancy Act 1955. The appellants denied the mortgage and claimed to have acquired Khatedari rights on the ground that they had been in possession of the land for a long time. The suit was decreed by the trial court whose judgment and decree was upheld by the first court of appeal as stated above. Hence this second appeal.
(2.) THE main ground of the attack of learned counsel for the appellants is that the judgments of the courts below are perverse. It is contended that before a decree or the redemption of the mortgage can be given, it is for the plaintiff to show that he mortgage subsists. It is averred that under the Jaipur Laws, then obtaining, the registration of a mortgage was compulsory and as the alleged mortgage was not registered, it could not create any interest and was in-admissible. It is also argued that as admitted by the plaintiff, the land was already in the possession of the appellants. Under these circumstances, the new agreement alleged to have been executed between the parties is not admissible. In support of this contention, reliance has been placed on Mst. Kirpal Kaur vs. Bachan Singh (AIR 1958 S. C, 199) it was held in that case that the agreement between the parties cannot be admitted in evidence to show the nature of the possession of one of the parties, subsequent to its date. THE party being in possession before the date of the document, to admit it in evidence to show the nature of her possession subsequent to it would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession into a permissive possession and, therefore, to give effect to the agreement contained in it which admittedly could not be done for want of registration, as this would amount to getting round the statutory bar imposed by Sec. 49 of the Registration Act. It is, further, argued that the lower courts have not determined the date of the mortgage and thus they have committed a grave error of law in so far as the question of limitation has not been examined. Reliance has also been placed on Shah Gur Saran vs. Shib Singh (AIR 30, 1943 Allh. , 393) in which it was found that the date of mortgage not having been established the mortgagor had failed to show that the acknowledgement was made within 60 years of the mortgage and hence the acknowledgement was wholly ineffective to save limitation. A reference has further been made to Smt. Pankajini Debi vs. Sudhir Dutta (1956 Cal. 669, AIR V 43 C 189 Dec.) for the proposition that the settlement record is not a document of title and that it does not create or extinguish title to the land. At the most, it may be relevant as evidence of title to the recorded Dags and may raise a presumption of title by virtue of the statutory presumption of correctness attaching to its entries under the Bengal Tenancy Act. It was observed therein that such evidence is rebuttable and so also the presumption and they could be effectively rebutted by the production of contrary evidence. Another authority cited on behalf of the appellants is Dalu vs. Juharmal (AIR 1952 Raj. , 91) for the proposition that where certain copies of the settlement records are produced by the plaintiff in a suit for redemption of the mortgage and the defendant's possession is mentioned as that of a mortgagee, the plaintiff is bound to show that under the rules or the law in force it was a part of the duty of the officer preparing these revenue records to mention the facts which appeared in those documents. As a perusal of the impugned order shows the main hurdle which has to be crossed by the appellants is the admission of Guphran Ali in Ex. P. 1 which was registered by him as an F. I R. at the Police Station Bali, Distt. Sawai Madhopur on 10. 6. 58. It was stated by Guphran Ali therein that he was mortgagee in possession of 10 bighas of land known as 'kundap since Smt. year 1989. It was, further, stated by him that this land belonged to the plaintiff. The lower court has held that the appellant cannot now repudiate his own statement made by his free will, while moving the machinery of law in a criminal case. On his own admission, his status is that of a mortgagee. The learned counsel for the appellants has tried to repel this finding by relying upon Ambika Prasad Thakur vs. Ram Ekbal Rai (AIR 1966 S. G. 605), wherein it has been held that a title cannot pass by mere admission. A careful perusal of this authority would however show that the appellant cannot seek protection under its umbrella for the obvious reason that in this case it was observed that the admission had been made under suspicious circumstances at the end of the trial of the case and the written statement had not been formally amended. It was, therefore, held that such admission had week evidentiary value, and could not pass title. The facts in the present case, are different. Here, we have the voluntary admission of the defendant and he cannot escape its consequences by subterfuge. A reference has also been made to the Farde Mutabikat, which juxtaposes the old field numbers against the new numbers. It is contended that only one Khasra No. namely 469 bears the entries of mortgage. Other khasra numbers do not bear this entry. It is sought to conclude from this that the documents have not been carefully examined by the lower courts and their conclusions are perverse. As is obvious, the learned counsel for the appellants has been at pains to repudiate the admission of the creation of the mortgage in his favour in 1998 as evidenced by his own statement made under his free will in the Police Station while lodging an F. I. R. In his evidence, he has admitted having signed this F. I. R. after having heard it. In view of this admission, there does not remain any strength in his denial that the mortgage was never created. It has been rightly argued by the learned counsel for the respondent that what is admitted need not be proved. As regards the lack of registration, our attention has been invited to Lachhmi Narain and another vs. Kalyan and another (AIR 1960 Rajasthan 1 ). In this case, a special bench of the Rajasthan High Court had an occasion to examine the maintainability of a suit for redemption where mortgage deed had not been registered. It was observed by the learned Judges that by virtue of Sec. 23 of the Limitation Act, (as then obtaining) the limited right of mortgagee can be acquired by adverse possession. It can be so acquired even if a mortgagee has obtained possession under a void or inoperative mortgage deed. The provisions of the Transfer of Property Act (Sec. 59) are not in any way affected on account of the acquisition of rights by prescription. The rights of the parties can be regulated by law if no valid agreement exists. It is not substituting a new contract but giving effect to a relationship created by the operation of law, and the provisions of Sec. 49 of the Registration Act or Sec. 91 of the Evidence Act are not affected because an unregistered document can be availed of for the purpose of showing the character and nature of possession is transferred under such document. It was, further, observed that when considering the question of Sec. 28 in relation to Art. 144 (of the old Act) the intention of the person holding the possession becomes relevant. Thus a suit for redemption of the mortgage created by the operation of law is governed by Article 148 (of the old Act) and the period will run after the expiry of 12 years from the date when the possession was taken under such mortgage deed. This authority should ser at rest all the controversy regarding the mortgage being ab initio void for lack of registration. It should also clinch the issue of limitation. It is admitted by the appellant that he has held the land as a mortgagee with possession since 1998. In the absence of a registration deed, he would be deemed to have acquired the rights of mortgagee by prescription after the lapse of 12 years viz-in 2010. There is no dispute that at the time when the land was transferred to the appellant, the period of limitation under the Jaipur Limitation Act was 30 years. It was subsequently raised to 60 years at the enforcement of the Indian Limitation Act. Thus the contention of the learned counsel for the appellants that the plaintiff has failed to prove that the mortgage subsisted on the date when the suit was brought has no legs to stand upon. As has been, stated above, this second appeal has been filed against the concurrent findings of the courts below. The scope of the jurisdiction of a second court of appeal has been laid down in the well known authority of Deity Patta-bhiramaswamy vs. S. Hanymayya and others (AIR 1959 Supreme Court, 57 ). It has been stated therein that there is no jurisdiction to entertain a second appeal on the ground of erroneous findings of fact, however gross the error may seem to be. Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact. It has been held therein that a Judge of the High Court has no jurisdiction in second appeal to interfere with the findings of fact given by the first appellate court based upon an appreciation of the relevant evidence. The learned counsel for the appellants has sought to attack the findings of fact of the lower court on the ground of perversity. We have carefully examined the record in the right of his arguments and as the foregoing discussion will show we are not convinced that the findings of fact of the lower court suffer from this infirmity. J
(3.) IN the result), therefore, we have no hesitation in rejecting this appeal with costs. .;