GOPAL SINGH Vs. JAWAHARDAS CHELA JIWANDAS

JUDGEMENT

(1.) THE circumstances that give rise to this appeal may briefly be stated thus : THE respondent Jawahardas brought a suit on 26. 11. 52 against the appellants Gopal Singh and Man Singh in the court of the Assistant Collector, Malpura for recovery of possession over the disputed land (Khasra No. 1981, village Chandsen, Tehsil Malpura ). It was alleged in the plaint that the ancestors of the defendants mortgaged the disputed land with the plaintiff, that this mortgage had become more than 31 years old in Smt. 1998, that it had, therefore! become foreclosed, that thereby the plaintiff had become the khatedar tenant, that on thirtieth May, 1946 the defendants had wrongfully dispossessed the plaintiff and it was therefore prayed that the defendants be ejected from the disputed land, that the plaintiff be put in possession thereof and that he be declared the khatedar tenant of the same. It was also averred in the plaint that immediately after the alleged dispossession the plaintiff filed a summary application in the Tehsil Malpura for Intzam Kasht and thereafter instituted a regular suit against the defendants for recovery of possession. THE suit proved futile because of the fact that the plaintiff omitted to mention therein the fact of the mortgage and claimed to be the tenant of the disputed land himself. That suit came up to the Board which held that as the plaintiff was shown to be a mortgagee and not the tenant that suit was not maintainable. THE plaintiff further averred that on the dismissal of the suit the present suit was instituted by him. THE defendants denied the claim and alleged that the disputed land was mortgaged in Smt. 1990, that the mortgage was valid for a period of 10 years only, that it came to a termination in Smt. 2000 and that since Smt. 2001 they had been in rightful possession of the disputed land and that the plaintiff was not entitled to any relief. After framing a number of issues and recording the evidence of the parties the trial court held that the plaintiff had no right to seek possession from the defendant and hence the suit was dismissed. THE plaintiff went up in appeal before the Additional Commissioner Jaipur who allowed the appeal without going into the merits only on the point that as the plaintiff was not permitted to adduce secondary evidence of the mortgage deed the case should be decided therefore afresh. THE defendants have come up in second appeal against this decision.

(2.) THE first point that emerges for consideration in the case is the year when the mortgage was created. According to the appellants it was created in Smt. year 1990 and according to the respondent in Smt. year 1967. For purpose of this appeal before us it is not necessary to record any finding on this issue. Suffice it to observe that in either case was it necessary that the document of mortgage should have been registered and if it was not registered it would be in-admissible in evidence. This position has been conceded before us by the parties. We may, however, refer to the various Hidayats of the Alia Council of the former Jaipur State, dated 26. 2. 1895 and 19. 11. 95 which made it perfectly clear that as early as 1895 A. D. a mortgage deed was compulsorily registrable and was inadmissible in evidence if unregistered. In the present case the respondent admits that the mortgage deed was not registered.