RAHIM BUX Vs. ILLAHI BUX

JUDGEMENT

(1.) THIS is a defendant's appeal and arises under the following circumstances.

(2.) THE plaintiff-respondents instituted a suit in the Court of Munsif Pali on 23-121968 for the redemption of the mortgage in respect of a house situated in the town of Pali. According to the plaintiffs, the house was mortgaged with possession in Samvat year 1991 for Rs. 199/- with the defendant. It was stipulated that the mortgagor shall not redeem the house for five years and further the mortgagee could spend any amount upto Rs. 100/- for the maintenance of the house, but for spending any amount in excess of Rs. 100/- prior permission of the mortgagor would be necessary. In the circumstances the redemption of the house was claimed for an amount of Rs. 199/-plus Rs. 100/- as expenses for the maintenance of the house. The defendant denied that the property was mortgaged with him. He claimed that it was his own ancestral property. As regards the mortgage deed it was pleaded that the same was inadmissible for want of registration. The learned munsif framed the following issues:--

(3.) ON 19-12-1969, the learned Munsif Shri Bhansali disposed of issue No. 4 holding that the document was inadmissible. The position had been conceded by learned counsel for the plaintiff as well. On 4-3-1971, learned counsel for the plaintiff made an application for permission to lead secondary evidence in respect of the mortgage deed as the same was with the defendant and he was not producing the same. It was submitted that although the mortgage deed was an unregistered one the plaintiff could yet prove the possessory mortgage of the suit property. The learned Munsif heard both the parties and dismissed the application. He was of the view that when the alleged mortgage deed was inadmissible for want of registration the secondary evidence of its contents could not be adduced. On account of some administrative changes the case came on the file of the Civil judge, Pali. The learned Civil Judge in view of the decision of the learned Munsif (now his predecessor) dismissed the suit.