GORKHI Vs. RAM SINGH

JUDGEMENT

(1.) This is a revision application under sec. 26 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, against an appellate order of the Additional Commissioner, Jaipur dated 14 -9 -53, upholding the appellate order of the Collector, Sawai Madhopur which, in turn, upheld the original order of the Assistant Collector, Karauli dated 25 -4 -52, whereby the application of the opposite parly for redemption of the land in dispute was allowed.

(2.) We have heard the learned counsel appearing for the parties and have examined the record as well. The main contention put forth on behalf of the applicant before us is that there is no evidence worth the name to show that the land in dispute was under mortgage with the applicant and hence the decision of the lower courts regarding redemption of the mortgage is manifestly wrong After being led through the entire evidence placed on record by the opposite party we find ourselves clearly in agreement with the contention of the applicants counsel that no legal evidence exists to establish the creation of mortgage. The trial court approached the case in an entirely wrong perspective and it is no wonder therefore that it arrived at unwarranted and unjustifiable inferences. The judgment of the former Karauli State High Court dated 25 -8 -47 obviously cannot confer any advantage upon the opposite party for the evident reason that in that litigation the applicant Gorhi was not a party as it was a proceeding only between Ram Singh on the one hand and Jai Singh and Dalla on the other. However, we are have passed the judgment of the learned judge to appreciate the reasons that weighed with him for holding that the land in dispute was under mortgage. As the trial court has almost reproduced them in his own judgment we would examine them in due course.

(3.) The decision of the Munsiffs court dated 30 -11 -50 has been misconstrued by the trial court and both the appellate courts as well. That was a suit instituted by Gorkhi against Ram Singh and others wherein he denied the existence of the mortgage alleged to have been created over the land in dispute and prayed that the decree of the former Karauli State High Court was not binding upon him. It is an admitted fact that he was successful. If any reasonable inference can be drawn from this decision, it is would be that the decision of the former Karauli State High Court was held to be ineffective and inoperative against Gorkhi and that Gorkhi by denying the mortgage had clearly intimated his intention to contest the alleged creation of the mortgage. Thus it becomes clear that the question as to whether a mortgage was created over the land in dispute has to be examined on the basis of the evidence adduced in the case by the opposite party and the judgments that have been relied upon by the lower court have no relevancy or bearing upon this point. In this connection the following facts are beyond the scope of controversy.