CHATRA Vs. RAMGOPAL

JUDGEMENT

(1.) This is second appeal against the appellate decree of the Divisional Commissioner,Kotah dated 23 -9 -54,reversing the decree of trial court and decreeing the respondents suit for recovery of possession.

(2.) We have heard the learned counsel appearing for the parties and have examined the record as well. The respondent averred in the plaint filed by him on 31 -7 -51 that he purchased the land in dispute on 30 -4 -52 from Panna, that possession was duty transferred to him by Panna, that he ploughed the land twice and that the defendant dispossessed him about 15 days prior to the institution of the suit. The defendant in the written statement pleaded that a portion of the field sold by Panna to the plaintiff had been in his possession since Smt.2008 through a mortgage and that over that portion of the land the plaintiff never got possession and the same had been in his continuous possession throughout. The trial court held that the defendant had been in possession over the land in dispute as alleged by him and that the plaintiff was not dispossessed wrongfully as alleged in the plaint. As a result of these findings the suit was dismissed. On appeal the learned Divisional Commissioner held that "the plaintiff was rightly put in possession of his land inconsequence of a valid sale deed and he was entitled to get possession over this land from Chatra who is clearly a trespasser." The reasons advanced by the learned Commissioner are mostly conjectural and ignore the evidence that exists on record. The learned Commissioner has observed that the sale deed executed by Panna makes no mention of the previous mortgage that Panna while making his statement in the suit had withheld the turn and that the mortgage, even if there was one in favour of Chatra was invalid and illegal. Now Coming to the evidence on the point we find that the plaintiffs own witnesses Gangram and Chhagna, P.W.4 and 7,and clearly admitted in their statements that in Svt.2008 i.e. year prior to the alleged dispossession, the defendant was in possession of the land in dispute. They have also said that it was under a mortgage with him. Besides there exists on record an entry in gasht girdavari of Svt. 2008 wherein the defendant has been shown as in possession over this land with the status of a zaili. It has been argued on behalf of the respondent that the appellant claims to be in possession by virtue of the mortgage and as he entry show him to be a zaili it is not worthy of any credence. Much need not be said on this point, for even if this entry is ignored there stands testimony of the respondents own witnesses on the point that the appellant was in possession in as well and to this extent the entry Svt. 2008 cannot be held unreliable. Thus the evidence led by the appellant also establishes that he had been in continuous possession of the land since Svt. 2001. Under the circumstances, it becomes perfectly clear that the plaintiff did not come in possession of the land in dispute as alleged in the plaint and that the defendant had been in possession throughout since Smt.2008.As the present suit is only for possession on the basis of previous possession and wrongful dispossession subsequently and as the plaintiff had failed to establish the case set up by him, the suit was rightly dismissed by the trial court.

(3.) It was argued on behalf of the respondent that even if it be found that the appellant was in possession in Smt.2008 under a mortgage as claimed by him then also he would be liable to ejectment on the ground that the mortgage being unregistered and unstamped was invalid and could not create a valid title. This question would not be decided if and when a suit is instituted for recovery of possession on the basis of title on behalf of the mortgagor or his representative in interest. As laid down in A.I.R., 1941 Rangoon 234, mortgagor cannot sue for redemption if the mortgage requires registration and is not registered He can bring a suit for possession based on title. In A.I.R. 1924 Madras 292, also it was pointed out that where plaintiffs sued for redemption, which could not be granted as the mortgage deed was unregistered and could not be admissible to prove the terms,but which was admissible to prove the nature of possession, could convert their suit into one to recover possession as owners though in that case this prayer was rejected as having been put up in appeal at a belated stage. This contention of the respondent is therefore premature and cannot be adjudicated upon in this case. In the result, we would allow this appeal, set aside the decree of the Divisional Commissioner, Kotah, dated 23 -9 -54 and restore that of the trial court dated 17th July, 1954.