DALU Vs. JUHARMAL

JUDGEMENT

(1.) This is a second appeal in a suit for redemption of a mortgage.

(2.) The appellant sued the respondents for redemption of a mortgage alleged to have been effected by Kela Bhajja in favour of Daya Ram. According to the plaint, a plot of land 17 bighas and 14 biswas bearing Survey Record No. 207 in village Rewara, Tehsil Rashmi, was mortgaged somewhere about Samvat 1956 for Rs. 25/-. It was alleged that the defendants who are the sons and heirs of Daya Ram had not only paid themselves off, but had enjoyed an excess income of Rs. 2,200/- since the date of the mortgage. It was alleged that the plaintiff Dalu was the heir and legal representative of the mortgagor and redemption was prayed without any payment of money or such payment of money to which the defendants may be entitled under the mortgage. The defendants denied the mortgage and set up their own title on account of a sale alleged to have been executed by Megha Sawai Ram in favour of Sola. It was alleged that they were in possession of the property in dispute since generations and for a portion thereof held a sale-deed dated Poh Sudi 7, Samvat 1950 in their favour. The trial Court accepted the genuineness of the sale-deed relied upon by the defendants which was in respect of 7 bighas, but decreed the suit for redemption of 10 bighas and 14 biswas of land without any payment to the defendants. Both the parties being dissatisfied with the judgment of the Munsif, Kaparin, filed appeals to the Court of District Judge at Chittorgarh. The learned District Judge came to the conclusion firstly that the mortgage relied upon by the plaintiff had not been proved and secondly that the plaintiff had failed to prove that he was successor in interest of Kela Bhajja. He accordingly accepted the defendants' appeal and dismissed the suit. The appeal of the plaintiff was automatically dismissed.

(3.) In this appeal, it is urged that the plaintiff produced two copies of the settlement records of Samvat 1983 and Samvat 2002 in which the defendants' possession is mentioned as that of a mortgagee, and that the lower Court has erred in not relying on that evidence. It was also argued that the defendants who were in possession of the land must have been paying rent to the State, but they failed to produce the receipts and it should be presumed that rent was paid by them to the account of the plaintiff. Reliance was also placed on oral evidence which has been held to be unreliable by the learned District Judge. An order of the Tehsildar in mutation proceedings by which the . plaintiff Dalu was directed to be entered as Khatedar in place of Kela Bhajja, on 9th February 1946 was also relied upon.