DEVA Vs. SHEOCHAND

JUDGEMENT

(1.) This second appeal has been filed by the unsuccessful plaintiff whose suit for redemption of mortgage over the land in dispute was decreed by the trial court, the first appellate court rejecting the same and reversing the decree of the trial court.

(2.) We have heard the learned counsel for the parties and have examined the record as well. The plaintiff based his claim for redemption on the ground that he created a mortgage with possession over it for Rs. 170/ - and that he was entitled to redeem the same. The defendant contested this claim with the plea that after the creation of the mortgage the plaintiff sold the equity of redemption to one Girdhari who in turn sold it to the defendant and hence the mortgage came to a determination. The trial court held that the sale deed executed by the plaintiff in favour of Girdhari and that executed by Girdhari in favour of the defendant were both unregistered and hence the plea set up by the defendant was untenable. The lower appellate court took a different view and held that both these sale deeds were duly proved by the evidence on record and hence they could be looked into for determining the nature of possession which was a collateral purpose even if the documents were inadmissible for want of registration.

(3.) The learned counsel for the appellant has argued before us that the mortgage having been admitted by the respondents and that the sale set up by the defendant being not proved inasmuch as the documents evidencing it were unregistered and were not accompanied by any delivery of possession, the mortgage should be deemed to be existing as yet. This is clearly untenable. After the creation of the mortgage in favour of the defend - dant actual possession over the land was transferred to the mortgage and what remained with the plaintiff mortgagor was only the equity of redemption Hence when the equity of redemption was transferred by the plaintiff in favour of Girdhari there could hardly be any question of actually transferring the land as the same was with the previous mortgagee with possession. The equity of redemption was therefore transferred to Girdhari who eventually transferred it in favour of the defendants. The documents Ex. D. 3 and D. 4 have been proved by the statements of either scribes - - Shri Kanhiyalal and Shri Phudalal. Girdhari has fully corroborated the version set up by the defendant. Under the circumstances the lower appellate court was perfectly justified in holding that these documents were proved to have been executed. Inasmuch as they are unregistered they can certainly be not used for proving these transactions but when the question is with regards the nature and character of the possession of the defendants, these documents can certainly by looked into. If any authority be needed for this view it will be found in a decision of the Honble High Court of Judicature for Rajasthan - -1955 RLW. 472 (Barqat Ali v. Girdhari Singh) decided on 22.9.54. The facts of this reported decision bear a marked similarity to those of the present one and the principle of law enunciated by the High Court is this case in fully applicable to the present case. The defendant has therefore succeeded in establishing that the mortgage which is sought to be redeemed by the plaintiff is no longer subsisting as the same was determined and the possession of the defendant became that of a vendee. There is thus no substance in this appeal which is hereby rejected.