KAJJA Vs. RAMPAL

JUDGEMENT

(1.) This second appeal has been filed against the appellate decree to the Additional Commissioner, Jaipur dated 2.12.57 confirming the decree of the trial court in as much as it related to redemption of mortgage over the land in dispute but modifying it as regards the payment of mortgage money. The trial court had ordered redemption without payment of any mortgage money. The first appellate court made it conditional upon payment of Rs. 90/ - which was alleged to be the consideration for the mortgage.

(2.) We have heard learned counsel for the parties and have examined the record as well. The propriety of the concurrent decisions of the lower courts has been assailed before us mainly on the ground that the respondent had failed to prove the creation of a mortgage and hence the lower courts should not have ordered redemption. In other words, no question of law or usage having the force of law has been alleged to be involved in this second appeal before us. The contention raised by the appellants counsel centres round the fact that the findings of the lower courts are not justified by the evidence on record and that they have been based on inadequate evidence. Ordinarily such a contention deserves outright rejection where the lower courts have arrived at concurrent findings of facts. But looking to the circumstances of the case we have deemed it prudent to examine this aspect as well. The statement of the patwari Ram Dayal makes it clear that the land in dispute - -Khasra No. 49 village Beriya stands in the Khatedari of the respondent Bhagtu who died during the pendency of this appeal and whose name has now been substituted by Rampal in whose favour the deceased had left a registered will. There exists on record copies of Khasra Girdawari for Svt. years 2009 to 2011 wherein Bhagtu has been shown as a Khatedar and the name of Kajja appellant stands entered as a subtenant. It is true that there is no mention of a mortgage in the revenue record. But this revenue record as far as it goes lends support to the respondents case for it shows him to be the recorded tenant of the land. This entry about sub - tenancy has been challenged by both the parties. This respondents contention is that the land was mortgaged with Kajja in Svt. 1999, that the respondent continued to cultivate it for five years after the mortgage and that thereafter Kajja cultivated it in the capacity of the mortgagee. In other words, the contract of any sub -tenancy between the parties is denied by the respondent. The appellant also has not taken his stand on any contract or sub -tenancy. His defence is that he was admitted as a tenant by the Jagirdar long before the creation of the alleged mortgage. No evidence whatsoever has been examined in support of this contention. On the contrary, the appellants witness Parmoli has himself stated that the land was mortgaged with the respondent for Rs. 90/ -. Kajja cultivated the land in that capacity. The appellants counsel has relied upon AIR 1927 PC 15 and AIR 1922 Allahabad 232 in support of his contention that the evidence in the case is inadequate to establish the mortgage. Both these rulings have no, application to the present case. The Privy Council decision relates to the fact that oral evidence to secondary evidence of the contents of a document must be of persons who have read the document otherwise it would be nothing but hearsay evidence. In the case which we have to decide the point involved in entirely different. The factum of the mortgage though denied by the appellant has been frankly admitted by one of his witnesses and there can be no reason why statement should not be relied upon. In the Allahabad ruling the question was whether the evidence of an illiterate person could be deemed to be the evidence of one who has seen the mortgage deed under clause (5) of sec.63 of the Evidence Act As pointed out above,the present case does not involve this question. Sec. 21 of the Karauli Revenue Code was also referred. It simply lays down that "Amal Daramad" of a sale or mortgage shall not be made in revenue papers, without the sanction of the Deputy Collector. In a way it explains the entry of sub -tenancy. As no sanction of the Deputy Collector was obtained in the case, the patwari had no other option but to enter Kajja as a subtenant when he was found in actual possession of the land The entire question hinges upon an appreciation of the evidence examined by the parties in the case. Both the lower courts came to the conclusion that the mortgage as alleged by the respondent was created and that the same should be redeemed. After considering the evidence we find no reason to differ from the lower courts. There is thus no substance in this second appeal which is hereby rejected.