ROOPLAL Vs. SHANKER

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff in a suit for redemption. The appellant Rooplal as assignee of the equity of redemption from Kishna sued the respondent Uda for redemption of a mortgage of a house situated at Rajnagar on the allegations that it had been mortgaged by the vendor Kishna to Ghasi, father of defendant, in Samwat 1951 for Rs. 25/- and thereafter the mortgage money was raised to Rs. 211/- on Mangsar Sud 4 Samwat 1955. The defendant denied the mortgage and asserted his own title to the property. The trial court decreed the suit but on appeal, it was dismissed.

(2.) IN this second appeal an, application was presented that two documents, which were not in the knowledge of the plaintiff but had subsequently been discovered and which were material to the points in dispute, may be admitted in evidence. One of the documents is alleged to be an agreement by the defendant executed in favour of Kishna vendor in which Uda admitted his possession of the house in dispute as a mortgagee and stipulated that the cost of a particular wall to be built by Uda for his convenience will not be an encumbrance on the property. This document, if genuine, was important and material in so far as it contains an acknowledgment of the existence of the mortgage but this document was in possession of Kishna who is predecessor in title of the plaintiff and it is not sufficient to say that Kishna being illiterate did not know of the document and that it was only discovered by an accident when Bansilal, son of the plaintiff examined certain documents found by Kishna in some old bamboo pipe. The house was in possession of the defendant at the time when the plaintiff took assignment of the equity of redemption and it was his duty to obtain all documents from the vendor which would go to prove the mortgage. The document being in the possession and knowledge of kishna, the plaintiff was bound to produce it as soon as the defendant denied the existence of the mortgage. The other document is a decision by the Hakim of Rajnagar dated 30th of June 1938 between Gangaram and Kishna vendor. Gangaram had filed a suit for replacing certain Parnalas at the cost of Kishna who was alleged to have dismantled them and the suit was decreed. This document purports to show that the house in dispute was the ownership of Kishna in Samwat 1898 but this has nothing to do with the fact of mortgage which is sought to be established in this case. Again, since Kishna was a party to this litigation, it could not be said that it was a recent discovery.