MT KHIRO KUER Vs. SYED NOORUL HUSSAIN

JUDGEMENT

(1.) This is an appeal from the decision of the Subordinate Judge of Patna affirming the decision of the trial Court and dismissing the plaintiff's action for redemption. The plaintiff set up a mortgage of 1312. The defendants appear to have admitted a mortgage of more than sixty years ago. They say the mortgage was in favour of their father or ancestor. The trial Court dismissed the suit on the ground that the plaintiff had not established his mortgage. The appellate Court dismissed the suit on the same ground; but stated as reasons for that decision that there was no document evidencing the mortgage, that it was an illegal mortgage by reason of the Transfer of Property Act, and that there being no proof that the defendants had been inducted into the land within the statutory period, the plaintiffs were unable to eject them.

(2.) Nothing can be urged against the decision of the learned Judge in the Court below as to what the plaintiff proved. It is not contended by Mr. De that he did establish by evidence a mortgage between his client or his ancestor and the ancestor of the defendants; but the whole contention of the appellant, as put forward by Mr. De, is based on the decision in Kailash Rai V/s. Mt. Jaga Kuer 1931 Pat 295. That was a case in which the plaintiff had failed either to prove the original mortgage deed or to give satisfactory secondary evidence in regard to it, but he had proved to the satisfaction of the Courts a mortgage. The defendant was not interested to deny the mortgage, nor did he plead that the mortgage had been satisfied, nor did he question the amount of the consideration. In those circumstances this Court held, affirming the judgment of Boss, J., that as the mortgage had been established, the plaintiff was entitled to redeem.

(3.) By Mr. Hasan Jan, who appears on behalf of the respondents, it is contended that the proof that the plaintiff has given in this case is insufficient to entitle him to a decree for redemption. His contention is that he admitted no mortgage by the predecessor of the plaintiff to the ancestor or predecessor of the defendants. But it is quite obvious from the judgment of the Court below that his case was consistent only with the fact that the predecessor-in-title of the defendants had got into possession as a mortgagee. Now if the matter was to rest there, it would seem that the decision of this Court in the case to which I have referred will apply and the plaintiff would be entitled to succeed. But it is to be noticed that no question of limitation arose in that case.