ILAHI BUX Vs. JAMILA BAI

JUDGEMENT

(1.) THIS is a second appeal by the defendant against the judgment and decree of the learned District Judge, Kotah, dated the 31st August, 1. 954.

(2.) THE facts giving rise to it are that plaintiff Mst. Jamila Bai filed a suit in the court of the Munsif Ramganj Mandi on 27-3-1952 for possession of an immovable property on the basis of title. The description of the property in dispute is given in detail in the plaint and need not be repeated here. The defendant did not contest the plaintiff's title to the property. His objection was that the property in dispute was mortgaged with Seth Motilal Kastoorcband, that the said mortgage was redeemed by the plaintiff, but at the time of redemption the defendant had naid a sum of Rs. 215/- to the mortgagees at the direction of the plaintiff, that the disputed 2 bhandars were therefore kept in possession of the defendant and he had a charge over this property. Thus, he expressed his willingness to part with the property on payment of Rs. 215/-together with interest thereon. The trial court framed an issue and called upon the defendant to prove if he had advanced rs. 215/- and if there was a. charge on the disputed property in his favour.

(3.) AFTER recording evidence of both the parties, the trial court decided the said issue in favour of the defendant and dismissed the suit on 16-2-54. Aggrieved by that decree, the plaintiff filed an appeal in the court of the learned District Judge, kotah. The learned District Judge held that the defendant was not able to produce any documentary evidence to show the payment of Rs. 215/ -. He considered the oral evidence produced by the defendant as worthless and threw it out. Thus, according to the first appellate court the. payment of Rs. 215/- by the defendant was not proved. It was further observed by the learned Judge that no valid charge could be created in favour of the defendant, because there was no registered document in his favour. For these reasons, he allowed the appeal and decreed the suit in the plaintiff's favour for possession of the disputed property. It is against this decree dated the 31st August, 1954, that the present appeal has been filed.