HAMERA Vs. ONKAR

JUDGEMENT

(1.) THIS is a second appeal by the defendants in a suit for redemption. The respondents brought a suit for redemption of a 'nohra' situated at Bhindar, on an allegation that it was mortgaged by their ancestors Padam Chand and Prayag Das on Fagun Sudi 15, Svt. 1933 for a sum of Rs. 231/- with a stipulation that the mortgage money was repayable in 15 years. It was alleged that the defendants declined to redeliver possession after receiving the money, which led to the filing of the suit.

(2.) THE defendants denied the mortgage. THE trial court after evidence, decreed the suit and the same judgment was upheld in appeal. THE learned counsel for the appellants took me through the evidence, as the learned District Judge had not discussed the same while dealing with the case. THE case hangs on secondary evidence as the original deed was stated to have been executed in a 'bahi in the possession of the mortgagees. THE allegation for the plaintiff was that the document was executed in a 'bahi in which there were certain other documents executed in and about the same period. THEse documents were Ex. P-8, a deed of mortgage of Svt. 1944, Ex. P-6 a bond dated Svt. 1936 with certain additions in 1939, and Ex. P-4 another bond dated Svt. 1954. Originals of these documents, Ex. P-8, P-6, and P-4 were produced by the mortgagees in certain suits. One of these suits was against the plaintiffs. In the second suit, the mortgagees were defendants, and the third suit was against one Gambhir Chand P. W. 7. Two of the defendants were cited as witnesses for the plaintiff and denied having in their possession the 'bahi out of which the aforesaid three documents were produced by them in the other suits. THE trial court permitted the plaintiffs to lead secondary evidence and Jas Raj P. W. 3 stated having read the document of mortgage about six or seven years prior to the institution of the present suit and gave an account of the mortage as relied upon by the plaintiffs. Another witness Birdi Chand P. W. 5 stated that he was also present at the time and himself saw and read the document. THE learned counsel for the appellants referred to a Privy Council decision in 1927 P. C. 15, wherein it was laid down that the secondary evidence of a witness as to the contents of a document is only admissible if the witness states that he read the document himself. This statement of the law does not admit of any doubt. Two of the witnesses, in the present case, have clearly stated that they read the document and thereafter deposed to the contents. THE evidence for the defendants, only consists of their possession since a long time. This was not sufficient to rebut the case, as the mortgage is dated Svt. 1933 and the defendants must have been in possession thereafter. In my opinion, the two courts have come to the right conclusion and, therefore, this appeal fails and is dismissed with costs. .