MUSAMMAT ANARAGI KUNWAR Vs. KASHI RAI

JUDGEMENT

(1.) THIS a suit for the redemption of a mortgage said to be made 14 years ago by Ram Harakh Rai in favour of Kashi Rai to secure a sum of Rs. 36. Under this mortgage the mortgagee was entitled to appropriate the produce in lieu of interest. He was, however, bound to pay Government revenue. The Court of first instance decreed the claim. But the learned Judge in appeal has reversed that decree. In the first place, according to the plaintiff, the mortgage was made by an unregistered document which has not been proved. No witness had been called who could give an account of the contents of the said document. The Court also considered the witnesses to be tutored. In that view the mortgage in suit not having been found to be proved, the Court rightly dismissed the suit. Mr. Jang Bahadur Lal, on behalf of the appellant, has argued that in the first plea in the written statement filed by the defendant the fact of mortgage, though with somewhat different conditions, was admitted and the Court below in any event ought to have given a decree for the redemption of the mortgage admitted by the defendant. THIS suit, however, was for the mortgage propounded in the plaint which was not proved and the suit, therefore, on that mortgage failed. Plaintiff, no doubt, is at liberty to sue on any other mortgage that may be admitted by the defendant. In fact he may take advantage of the admissions made in the written statement.

(2.) THIS suit was rightly dismissed and the ruling of this Court in Sheo Prasad v. Lalit Kuar 18 A. 403 : A.W.N. (1896) 132 supports the view taken by that Court. I dismissed the appeal with costs.