BHAG MASIH Vs. SARDHA RAM AND ANOTHER

JUDGEMENT

(1.) The plaintiff, Sardha Ram filed the suit for the recovery of the possession of the mortgaged land, on the allegation that Bhag Masih, defendant 1, mortgaged land measuring 57 Bighas 12 Biswas, situate in village Santokh Majra, for Rs. 560/- on 4th June, 1939, agreeing to pay interest at the rate of -/8/- percent per month. It was further agreed that the mortgagor would pay the debt within eight years with interest and if the same is not paid, the plaintiff-mortgagee would have the right to claim possession of the mortgaged land. On taking possession of the land the plaintiff was not entitled to charge any interest. It has further been alleged by the plaintiff that defendant 1 mortgaged 18 Bighas 15 Biswas of land out of 57 Bighas 12 Biswas mortgaged with him with defendants 2 and 3. As the mortgage of the plaintiff is prior in time, he claims preference over the mortgage of defendants 2 and 3. The plaintiff's case is that he was not paid any sum out of the mortgage debt and he had, therefore, per force to file the suit for possession. Defendant 1 pleaded in his written statement that he had executed the mortgage-deed without possession on 4th June, 1939 but he did not remember its terms and that he had paid the entire amount of mortgage debt on the plaintiff. He has also admitted that he had mortgaged 12 Bighas 10 Biswas of land with Bichha, defendant and his son Santu and that Santu was a necessary party. Defendant 2 resisted the suit on the pleas that Santu was a necessary party, that the land mortgaged with him and Santu was free from all encumbrances and that the plaintiff could not claim possession of that land. On the pleadings of the parties the following issues were framed by the learned trial Court :-

(2.) The first point argued by the learned counsel for the appellant is that the plaintiff had not produced the original mortgage-deed nor proved its terms and no case had been made out for producing secondary evidence in the form of a certified copy of that mortgage-deed. For this reason, it is submitted that the copy of the mortgage-deed filed by the plaintiff could not be looked into for ascertaining its terms as has been done by the learned Senior Subordinate Judge. The plaintiff did not state in his plaint that he had lost the mortgage-deed. When appearing as a witness he stated that he had filed the original mortgage-deed in some Court but he did not remember the date or the year when he filed and the Court or case in which he filed. It is thus clear that the plaintiff did not make out any case for producing secondary evidence under Section 65 of the Evidence Act. Under Section 91 of the Evidence Act no oral evidence could be considered to prove the terms of the mortgage-deed which had admittedly been registered. In my opinion, the learned trial Court was correct in holding that the certified copy of the mortgage-deed which had admittedly been registered. In my opinion, the learned trial Court was correct in holding that the certified copy of the mortgage-deed could not be looked into nor could oral evidence produced by the plaintiff be considered in proof of the terms of the mortgage-deed. The terms of the mortgage-deed not having been proved, the plaintiff could not claim the right of recovering possession of the mortgaged land. It also becomes clear that in case it is held not to be proved that the mortgagor had been given eight years' time to pay the mortgage debt, the suit for the recovery of possession filed on 7th March, 1958 was barred by time as the mortgage had been effected on 4th June, 1939 and the plaintiff could take possession of the land for the realisation of his mortgage debt by a suit which could be filed within twelve years of the date of the mortgage.

(3.) The appellant, as defendant 1, had pleaded payment of the mortgage debt along with interest and had stated that the entry with regard to the payment had been made on the back of the mortgage-deed and that is why the plaintiff was not producing the original mortgage-deed. To me it appears that in case the appellant had not paid either interest or principal amount of the debt to the plaintiff during the period of eight years, which according to him had been fixed for redemption, the plaintiff would not have kept quiet for eleven years after the expiry of eight years. There is, therefore, force in the contention of the appellant that the original mortgage-deed was not being deliberately produced as its production would show the payment of the entire mortgage debt to the plaintiff. I, therefore, hold that the learned trial Court was right in dismissing the suit of the plaintiff.