MT SHAM DEVI Vs. BHAGWAT DAYAL

JUDGEMENT

(1.) The plaintiff of the Court of first instance is the appellant in this Court. She brought, as a purchaser of the equity of redemption, a suit for redemption of a mortgage alleged to have been executed in 1843. The suit succeeded in the Court of first instance but the learned District Judge on appeal dismissed it. He came to two conclusions, viz., the appellant had failed to prove that she had any subsisting title to the property at the date of the suit and that the suit was barred by time. In appeal, it is contended that both the findings are incorrect. The learned Counsel for the respondent urged that the finding as to title was a finding of fact and was binding on this Court. On the question whether the finding of the learned Judge was a finding of fact, the argument of the learned Counsel for the appellant was that the facts were all admitted, the interpretation of the documents was all admitted, but the argument of the learned Judge was faulty and it was open to this Court to see where the fallacy of the argument of the learned Judge lay and then it was further open to this Court to consider the case on the merits. In order to appreciate this argument it was necessary to go into the evidence which was practically entirely documentary. I have examined the entire evidence and that evidence stands as follows : It appears that there were two brothers Asalat Khan and Karim Bakhsh, each of the brothers owning a 10 biswas share in a certain village. This was in 1806. As I have said the mortgage was executed in 1843. It appears that the factum of the mortgage was found established by the Court of first instance and the question was not raised again before the learned District Judge. Then we find that by 1855 the property of the brothers had been alienated. Karim Bakhsh had mortgaged 5 biswas to one Chittar Mal and 5 biswas to one Abdullah. Out of the share of Asalat Khan 71/2% biswas had been purchased by Abdullah and Abdullah had taken a mortgage of the remaining 21/2 biswas. It is this mortgage of 21/2 biswas that is sought to be redeemed. Then we find that Abdullah's son Abdul Latif joined the mutineers and his property was confiscated. In 1861 his property was sold and was purchased by the respondent's ancestor. This property was described as 8 biswas proprietary rights and 6 biswas mortgagee rights. It will be noticed that a certain change had taken place between. 1855 and 1861 when the auction sale was held. In 1855 Abdullah had proprietary rights in 71/2 biswas and mortgagee rights in 71/2 biswas. In 1861 he had only 14 biswas in all, viz., 8 biswas in proprietary rights and 6 biswas as a mortgagee. Then it appears that in the khewat of 1861 which is to be found in the wajib-ul-arz of that year dated the 10 of October, 1861, the property was recorded as follows : Descendants of Karim Bakhsh's mortgagors of 41/2 biswas, the same property being held by Harsukh Rai (the ancestor of the respondent) as mortgagee. Harsukh Rai proprietor of 91/2 biswas. It was stated that out of these 9J biswas he had purchased 8 biswas belonging to Abdul Latif and he had purchased 1J biswas from Karim Bakhgh's descendants, Chittar Mal was shown as the mortgagee of 6 biswas being the property of Karim Bakhsh's descendants. It will be noticed that no names of descendants of Asalat Khan ever appeared in the wajib-ul-arz and khewat of the 10 of October, 1861. Further, we find that Fatehyab, son of Asalat, protested against this entry and made an application for correction of the khewat. His contention was that his name should have been recorded as a mortgagor of 21/2 biswas. His application was dismissed, we do not know for what reasons, on the 20 of January, 1862. Fatehyab lived up to the year 1921, but it does not appear that he ever stirred himself to obtain a correction of the khewat. It was on his death that his descendants sold the property to the appellant. On all this evidence the learned Judge came to the conclusion that the appellant had failed to prove that she or her predecessor had any title in the 21/2 biswas left in them.

(2.) The learned Counsel for the appellant has contended that the mortgagee was put in possession of property and the mortgagee, was bound to hand over that property to the descendants of the mortgagor and it was for him, viz., for the mortgagee to account for the loss of title in the mortgagor. There can be no doubt that there is a good deal of force in this argument. Abstractly speaking this argument is sound. But we have to look at the argument in the light of the circumstances of the case. We see that between 1855 and 1861, vis., within the space of six years, a decided change had taken place in the entry in the khewat and that change was to the detriment of Fatehyab a descendant of Asalat Khan. Fatehyab became aware of that change and he took steps to have an alleged error remedied. He failed. But he never took steps by way of a suit in the civil Court or elsewhere to have the error corrected. The question then is whether under the circumstances the Court below was justified in saying that after the lapse of 60 years, that is after the entry of 1861 had been allowed to stand for over 60 years, the plaintiff can say that her or her predecessor's title still subsists. Many things may have happened between 1855 and 1861 to justify the entries made in the later year. In my opinion the inference to be drawn is an inference of fact from admitted entries in documents and it cannot be said that that inference is perverse or illegitimate. It is not necessary for me to express my own opinion on the point. I do think that the Judge's finding as to want of title in the appellant is a finding of fact and that finding is binding on this Court.

(3.) As I am deciding this second appeal as a single Judge and there is every likelihood of there being a Letters Patent Appeal I would like to decide the second question, viz., that of limitation as well.