THAKUR RAM CHAND Vs. BEHARI

JUDGEMENT

(1.) The facts are as follows: Behari defendant No. 1 on the 15 of December 1896 executed a mortgage with possession in favour of the plaintiffs. In that deed the recitals are that they received the entire mortgage money as detailed below, that they put the mortgagees in possession and that they from that date should continue in possession thereof and should sublet the said property. The plaintiffs, on the basis of that mortgage, instituted a suit for recovery of possession on the l4 of December 1908, which was the last day for instituting the suit. The first plea in defence was as follows: "The defendant did not receive the amount of consideration of the mortgage-deed; and consequently the plaintiff never demanded possession during the long period of 12 years; nor did he make an application for mutation of names. The mortgage-deed is without consideration."

(2.) The Court of first instance dismissed the claim. That Court at the end of its judgment observes: "I presume that the suit was not filed earlier as the bond in question was not executed for consideration." On appeal the lower appellate Court confirmed the decree. That Court in its judgment says: ?The defendants admit execution of the deed in suit but deny receipt of consideration." That Court disbelieved the evidence adduced by the parties, and was of opinion that the decision of the case turned on the question of burden of proof. In consequence of the delay in instituting the suit for possession that Court was of opinion that the burden of proving the payment of consideration lay on the plaintiffs. For this proposition, it relied on Achobandil Kuari V/s. Mahabir Prasad 8 A. 641, in which the learned Judges observe : ?It is doubtless true that the party to a deed duly executed and registered, who alleges non-payment of consideration, is ordinarily bound to prove his allegation but we think the Judge has overlooked the peculiar circumstances of this case. He had found that possession had never been transferred, and that the plaintiff and his predecessor had silently submitted to the withholding of possession for upwards of eight years." This state of things, combined with the continuous possession of the vendors, favored their allegation that possession had been withheld because of the non-payment of consideration, and raised such a counter-presumption as to make it incumbent on the plaintiff vendee to give evidence that consideration had in fact passed.

(3.) The lower appellate Court was further of opinion that the suit was for the specific performance of a contract of mortgage, and was governed by Art. 113 of the Indian Limitation Act and not by Art. 144. The plaintiffs have preferred a second appeal to this Court and it is urged on their behalf that the suit is not barred by limitation under Art. 113, which has no application to the facts of the case, that as the defendants admitted the execution and denied the receipt of consideration, they were bound to prove that they had not received the consideration of the mortgage. The view taken by the lower appellate Court that the suit is barred by limitation, is not correct. This action can in no way be regarded to be an action for the specific performance of the contract. The recitals in the mortgage-deed are that the mortgagors received the mortgage money and put the mortgagees in possession of the property, mortgaged. That being so, the suit is clearly a suit for possession by a mortgagee against the mortgagor of immovable property and is undoubtedly governed by Art. 135 of the Indian Limitation Act. [Vide Gopal Rao v.Bajilal A.W.N. (1884) 123].