FRANK HAY Vs. RAFIUDDIN

JUDGEMENT

(1.) This is a first appeal from an order of remand. The plaintiff claimed to redeem a mortgage alleged to have been executed in or about the year 1856 A. D. On the pleadings, the Court of first instance framed a number of issues, the first of which was, is the suit within time?" In considering this issue the learned Munsif began by rightly remarking that, in a suit for, redemption, the plaintiff must prove that he has a subsisting right to redeem. He then went on to consider the evidence and expressed himself as satisfied that there was no mortgage in the year 1856, that the mortgage under which the defendants were in possession existed certainly in the year 1853 A. K and that there were grounds for presuming that it had been in existence a number of years prior to that. On this he held that the suit was barred by time and dismissed it accordingly. The Court of first appeal has considered the evidence which was before the first Court, and has recorded a finding that there was a mortgage of the year 1853 which the plaintiff is entitled to redeem. Having, therefore, reversed the finding of the first Court on the issue of limitation the Subordinate Judge has remanded the suit to the Court of first instance for trial on the remaining issues. The appeal before us, is by the defendants against this order of remand.

(2.) It is contended, in the first place, that the lower Appellate Court, having concurred in the finding of the Court of first instance that there was no mortgage of the year 1856, should on that finding have dismissed, the plaintiff s suit. For this proposition of law reliance is placed upon a decision of this Court in Sheo Prasad v. Lalit Kuar 18 A. 403 : A.W.N. (1896) 132. It would certainly be exceedingly difficult to distinguish this case on the facts from the reported case above referred to. On behalf of the respondent we were asked to consider the question of law in the light of an old ruling in Lalla Daibee Prasad v. Beharee Lal 3 N.W.P.H.C.R. 33, and also that the law on this point: has been laid down somewhat differently by the Bombay High Court in a number of cases of which it is sufficient to refer to Bala v. Shiva 27 B. 271 : 5 Bom. L.R. 85. We think it expedient, however, to, pass on to consider the second point, on which the decision of the lower Appellate Court is challenged. The plea as taken in the memorandum of appeal is that there was no mortgage granted in the year 1853, and on the plea thus taken it has been contended on behalf of the respondent that it is an appeal against a finding of fact recorded by the lower Appellate Court, which is binding on us in dealing with a first appeal from order. It seems to us, however, that the finding of the learned Subordinate Judge as to the execution of a mortgage in the year 1853 is one which rests upon no evidence. We are not even certain that the learned Subordinate Judge really intended to find this. What he released is a copy of an extract from a Settlement Record, of the year 1853, in which one Saiyad Muhamnlad Husain Khan is shown to be in possession as mortgagee of the shares of Azimuddin and Fatehuddiri. The defendants in this case are admittedly the successor-in-in-interest of Saiyad Muhammad Husain Khan, whose rights were transferred at an auction sale held, in 1888. The plaintiff claims to be the successor-in-title of Azimuddin. Now what the learned Subordinate Judge really says is that this paper proves to his mind that a mortgage, which the plaintiff has a right to redeem as against the defendants, was in existence in the year 1853 A. D. The present suit was brought in the month of April 1912, and is, therefore, just within time from any date in the year 1853. From these facts the learned Subordinate Judge concludes that it was for the defendants to show that their mortgage was really anterior in date to the year 1853 A. D. We cannot accept this proposition of law. It is contrary to the general principle that the plaintiff in a suit for redemption must prove a subsisting title. It is contrary also to the principles of law laid down in all the rulings on the subject to which our attention has been called in the course of the arguments, whether on behalf of the appellants or on behalf of the respondent. On the evidence before him the learned Subordinate Judge had no materials for concluding that any mortgage was actually granted in the year 1853 A. D., and as we have already remarked, we are not satisfied that he intended to find this. His decision is* really based upon his remarks regarding the shifting of the burden of proof, which we have already dissented from. We may remark in conclusion that there is no question raised by the pleadings, or by the evidence on the record, of any extension of the period of limitation on the basis of any written admission signed by the present defendants or by their predecessors-in-title. We must, therefore, accept this appeal.

(3.) We set aside the order of the lower Appellate Court and restore the decree of the Court of first instance dismissing the plaintiff s suit. The defendants will get their costs throughout.