JANKI Vs. RAM KISHORE

JUDGEMENT

(1.) THIS is a defendants appeal arising oat of a mortgage for redemption of a mortgage, executed about 45 years ago by Deo Saran and Mantol in favour of Ram Rup and Madho, now represented by the defend ante, of a grove No. 97 for about Rs. 5. The plaintiff sued as representative of the mortgagors. The defence was a denial of the mortgage and the plaintiff's right to redeem, The defendants further plead that they were in possession as Zemindars for a large number of years and that no grove existed on the land. The Munsif held that there was no grove nor was there a mortgage and dismissed the suit. On appeal the learned Judge of the lower Appellate Court has differed from the Munsif on these two points and has allowed redemption. The defendants some here in second appeal and the point urged by them before me is, that the lower Appellate Court has erred in holding that the mortgage has been proved because the only witness in support of the mortgage is one Bindeshri, an illiterate person, and no other witness has been produced, and such an illiterate person could not be deemed to be one who has seen the mortgage within Clause (5) of Section 63 of the Evidence Act. THIS argument of the learned Vakil for the appellants finds full support from the case of Ghure V/s. Ohatrapal Singh 23 Ind. Cas. 11 : 12 A L. J. 239., The only difference is that in the present case the soribe and the other two marginal witnesses are dead. Under these circumstances, I allow the appeal, set aside the decree of the Court below and restore that of the Court of first instance with costs in all Courts.