KHIALI RAM Vs. TAIK RAM

JUDGEMENT

(1.) This is a defendant s appeal against an order passed by the Subordinate Judge of Agra in the exercise of his appellate powers. He has directed that a suit which had been pending in the court of the Munsif of Agra, and in which an appeal had been preferred to his Court, should be sent back to the Court of first instance for determination of the remaining issues. The suit which was before the Munsif was a suit for redemption brought by Tek Ram and others, who alleged themselves to be the descendants of one Sukhjit. In the third paragraph of the plaint the plaintiffs gave particulars of the mortgage under which they claimed to have a right of redemption. It is stated in that paragraph of the plaint that the mortgage had been made in the Same year 1913, that the name of the mortgagor was Sukhjit, that the mortgage had been executed in favour of Muhammad Husain Khan, that the total amount of the mortgage debt was Rs. 200 and that the mortgage was with possession, the agreement being that profits should be taken by the mortgagee in lieu of interest. In addition to these particulars the plaintiffs gave details of the mortgaged property consisting of various plots of land, the total area being 10 bighas 9 biswas. It was further alleged in the plaint that after the death of the mortgagor Sukhjit, i.e., in or about the year 1871, this mortgage was redeemed by one Manik, who was one of the five sons of Sukhjit, the mortgagor. The defendants in the present case, it is said, are the mortgagees in possession of the property described in the plaint. They have acquired title through one Ram Lai who, it is said, in the year 1390 in execution of a decree obtained against Daya Ram, one of the brothers of Manik, the man just mentioned, purchased this property. The case for the plaintiffs, therefore, was that these defendants were in possession as mortgagees and that they were liable to suffer redemption. In the fifth paragraph of the plaint there was a statement made to the effect that at various times the mortgagees had admitted the existence of the mortgage executed in favour of Muhammad Husain, and in particular a reference was made to an admission or acknowledgment contained in a document described as a dakhalnama which was written in the year 1890. This document was referred to by the plaintiffs with the object of showing that their suit was within limitation. The defendants traversed the various pleas set out in the plaint and, in the first paragraph of the additional pleas contained in the written statement, it was asserted that the mortgage upon which the plaintiffs relied had never existed. The defendants claimed that they were in adverse and proprietary possession of the property in suit. Various other pleas were taken, including one of limitation; and on the pleadings put forward by the parties six issues were raised in the Court of first instance. The Munsif came to the conclusion that the plaintiffs had failed to prove the specific mortgage which they set out in the plaint and being of opinion that they had not succeeded in making out any subsisting title, he dismissed the suit. With reference to the various admissions or acknowledgments referred to in paragraph 5 of the plaint, the Munsif held that the plaintiffs had failed to show that, any acknowledgment made by the mortgagees had been made while limitation was still running. The case came up in appeal before the Subordinate Judge, and he begins his judgment by saying that the only question before him for determination was one of limitation. The learned Subordinate Judge agreed with the first Court that the oral evidence which had been adduced by the plaintiffs in order to prove the execution of the mortgage in the year 1913 Sambat, was altogether worthless. As regards the acknowledgments, however, he took a different view from the Court of first instance. He referred to the various statements which were relied upon by the plaintiffs as acknowledgments and held that in the circumstances it lay upon the defendants to show that these acknowledgments had been made at a time beyond the period of limitation fixed for a suit for redemption. Being of opinion, therefore, that the plaintiffs had a still subsisting title on the strength of which they were justified in asking for a decree for redemption, he sent the case back to the Court of first instance to dispose of the other issues in the case. The defendants now come in appeal to this Court and five grounds are taken in the memorandum of appeal. The first of these is that the lower Appellate Court, having found that the plaintiffs had failed to prove the particular mortgage set up by them, ought to have dismissed the suit. The second ground relates to the acknowledgments. It is contended that mere acknowledgments do not by themselves prove the specific mortgage that was set up in the plaint, or that the particular mortgage upon which the plaintiffs relied was still subsisting. In the third ground it is complained that the lower Court wrongly threw upon the defendants the burden of proving that the suit was time barred. In the fourth ground exception is taken to the manner in which the lower Appellate Court dealt with one particular acknowledgment, viz., that which is contained in the dakhalnama of the year 1890. The last ground is that the plaintiffs ought to have proved that there was a subsisting mortgage and that any of the acknowledgments upon which they relied was made within 60 years of the date of the original mortgage. The suit being one for recovery of possession of land by redemption, there can be no doubt that it lay upon the plaintiffs to show that at the time the suit was brought they had in themselves a title on the strength of whish they could ask the Court to give them a decree for possession, and the question which we have to decide is whether or not the plaintiffs have discharged their burden. In this connection the first point to be considered is the question of limitation. What is the rule of limitation governing a suit of the present description? It will be remembered that the suit as framed is really a suit brought by the representatives of some co-mortgagors against the legal representatives of a co-mortgagor who redeemed the entire mortgage. So far as the law of limitation is concerned, we must take it that it is settled for a case of this kind by the Full Bench ruling which is reported as Ashfaq Ahmad v. Wazir Ali 11 A. 423 : A.W.N. (1899) 211. It is true that this judgment has, in subsequent decisions of this Court, been criticised with reference to the view there taken regarding the status of one of several co-mortgagors who redeems the entire mortgage. But as far as we are aware, the rule of limitation which is laid down in this judgment has never been decided to be erroneous, and we must take it, therefore, that the Article which applies to this suit is Article 148 of the First Schedule of the Limitation Act, i. e., limitation extends for a period of 60 years from the date of execution of the mortgage, or from the date when the mortgage-money becomes due. It must be taken on the findings of the Court below that the plaintiffs have failed to prove that a mortgage was made by Sukhjit in favour of Mumhmmad Husain Khan in the the year 1913 Sambat. No document was produced before the Court of first instance and the plaintiffs put forward secondary evidence which has been discredited by both Courts. We might here draw attention to one piece of documentary evidence upon the record, viz., Exhibit 2, which is a Khewat of the village for the year 1263 Fasli, corresponding to the year 1855-56 A.D. The learned Munsif remarked with regard to this piece of evidence that it showed that no mortgage could have been executed in favour of Muhammad Husain Khan in the Sambat year J 913, which corresponds to the Fasli year 1263. The entry in that khewat shows clearly that at the time it was prepared the sons of Muhammad Husain were in possession of their shares in the village, and the presumption, therefore, is that Muhammad Husain had died and that his sons had by inheritance come into possession of the property owned by him in this khewat. We notice that the three sons of Muhammad Husain are described as being mortgagees of the property of Sukhjit in equal shares. We have no doubt, therefore, that the Munsif was quite right when he said that the mortgage which had been executed in favour of Muhammad Husain, must have been executed sometime previous to the year 1915 Sambat. We have it settled then that the plaintiffs were unable to establish the execution of the mortgage which was set out in all its details in paragraph 3 of the plaint.

(2.) We now have to consider the acknowledgments or the admissions on which the plaintiffs relied in this case. The position is some. what curious, because obviously the plaintiffs were not relying upon these acknowledgments or admissions in order to show that the suit was within time. Clearly they were unable to show that the mortgage had in fact been executed in favour of Muhammad Husain in the year 1913 Sambat, and it would have been superfluous for them to rely upon any acknowledgment for a suit based upon the mortgage of 1913 Sambat, it being within limitation on the date on which the present suit was filed. However, we proceed to consider the so called acknowledgments, upon which the plaintiffs rely for the purpose of showing that they have still a subsisting right to redeem. The first document relied upon by them was the wajib-ul-arz which was prepared in the year 1862. In this document there is a statement to the effect that an area of 10 bighas 7 biswas had been mortgaged to one Muhammad Husain by Sukhjit to secure a loan of Rs. 200. The plaintiffs filed a copy of this document in the Court of first instance, but it appears from the record that at the time of the trial the original record of the wajib-ul-arz was produced before-the Court by the record-keeper of the Collector s Court. This record-keeper was examined. He read out to the Court the entries in the wajib-ul-arz and it is apparent from his evidence that this original document was not signed either by Muhammad Husain or by any of his sons. In this state of affairs it is impossible for the plaintiffs to rely upon any statement contained in the wajib-ul-arz of 1862, for according to the provisions of Section 19 of the Limitation Act, any acknowledgment which is relied upon for the purpose of saving limitation must be proved to have been signed by the parties against whom the property is claimed or by some one from whom those parties derive title. The next document relied upon by the plaintiffs was the khewat of 1862. Here again there is no proof whatever that this khewat was signed by Muhammad Husain. In fact, as we have already pointed out, it is hardly possible that it could have been signed by Mahammad Husain, as he appears to have died sometime before. If the sons of Muhammad Husain had signed this khewat, it was for the plaintiffs to prove that some such thing had been done. The next document upon which, the plaintiffs relied bears date of 1871. This document is a certified copy of a fly sheet of the record of a mutation case. The record apparently has been destroyed and all that has survived of it is the title page. From this document we find that there was some mutation case between one Manik who was described as mortgagee and Mir Amjad Ali the general attorney of Furqat Husain, and others mortgagors. No signature appears on this document. It is, therefore, of no avail to the plaintiffs for the purpose of proving any acknowledgment. Similarly an entry in the khewat of 1876-77 is relied on. In this document we find that one Manik is described as being in possession of this property in his own right; to have extent on the share, while he is shown as being the mortgagee of four shares belonging to his brothers, Daya Ram, Bhim Sen, Pirthi and Nawal Kishore. The same objection is put forward to this document, Hz., that it does not bear any signature made by the defendant or any predecessor-in-title of his. We come now to the last document upon which the plaintiffs relied, and in fact it is the only document upon which they could rely for the purpose of proving an acknowledgment under Section 19 of the Limitation Act. It is proved that in the year 1890 Ram Lal, who is the father of the first defendant in the case, obtained a decree against Daya Ram and in execution of that decree purchased certain immoveable property which was in Daya Ram s possession. Having purchased it he got formal possession delivered to him by an officer of the Court and the dakhalnama dated the 28th of September 1890 is the receipt given by Ram Lal to the Court s officer on the date upon which he delivered possession of the land. There seems to be no doubt that this document was signed by Ram Lal. At the bottom of this document there is a description of the property which Ram Lal had acquired at the auction-sale. It is described in the following words: "10 bighas and 9 biswas belonged to Manik, in this way that one share belonged to Manik absolutely while four shares were in possession of Manik as mortgagee of his brothers, Daya Ram, Bhim Sen, Pirthi and Nawal Kishore." It has been argued by the learned Counsel who appears to support the appeal that the learned Subordinate Judge was wrong in treating this document as an acknowledgment for the purpose of Section 19 of the Limitation Act. Before proceeding to discuss this point we may observe that the Court must be taken to have fallen into error in taking notice of the other documents in which it is said certain acknowledgments were contained. The learned Subordinate Judge failed to notice that it is necessary for the plaintiffs to show that any document purporting to contain an acknowledgment must bear the signature of all the persons against whom the claim is being made. To return to the dakhalnama, we have carefully examined this document and we have come to the conclusion that it should not be treated as an acknowledgment for the purpose of Section 19 of the Limitation Act. In this connection we refer to the decision of the Bombay High Court reported as Bharma Vtthal v. Govind Sadvalkar 8 B. 99. The facts of that case are in many respects similar to the facts of the case now before us. It appears from the report that the plaintiffs ancestor mortgaged some land to the defendants ancestor in 1797 and placed him in possession. A few years after this mortgagee was executed both the mortgagor and the mortgagee went cut of the country. The mortgagor returned first and resumed possession of the land. When the mortgagee came back, he found it necessary to file a suit against the mortgagor for the purpose of recovery of possession. The suit was brought in the year 1826. In execution of the decree possession of the property was delivered to the mortgagee and a formal receipt was given by him to the Court officer acknowledging that possession had been received. In the year 1880 the representative of the original mortgagor brought a suit for redemption, and for the purpose of showing that the claim was within time he relied upon the receipt which was given in the year 1827 by the mortgagee after he had obtained possession. The lower Appellate Court had held that because this formal receipt contained a reference to the decree in execution of which possession of the land was delivered, it was evidence of the acknowledgment by the mortgagee that there was a mortgage subsisting in the year 1827. Accordingly it was of opinion that any suit for redemption filed before 1887 would be within time. The learned Judges of the Bombay High Court held that the interpretation which the lower Appellate Court had put upon this document was erroneous. Referring to the language of Section 13 of Act XV of 1877, they pointed out that the section intends a distinct acknowledgment of an existing liability to serve as a re-creation of it at the time of such acknowledgment, but there cannot really be an acknowledgment without knowledge that the party is admitting something, They went on to observe that all that the receipt admited by implication was that certain land had been awarded to the mortgagee and had passed into his possession. In the latter part of the judgment they proceeded as follows (see page 102 page of 8 B.-Ed.) of the report: ?The intention of law is manifestly to make an admission in writing of an existing jural relation of the kind specified equivalent for the purposes of limitation to a new contract; but for their purpose the consciousness and intention must be as clear as they would be in a contract itself, and no one would pretend that a contract to buy land awarded by a particular decree was an admission of the particulars of the judgment. The reference would be merely a means of defining the thing bargained for, and here the reference was merely a means of defining the thing delivered." Applying this principle to the case now before us, we think that what is relied upon by the plaintiffs as an acknowledgment contained in the dakhalnama amounts to nothing more than a description of the property of which Ram Lal had got possession after he had purchased it at an auction-sale. We are clearly of opinion that this document cannot be relied upon as an acknowledgment of liability within the meaning of Section 19 of the Limitation Act. Even if we are to assume that the document could be regarded in this light, we should be unable to follow the reasoning of the lower Court with regard to the shifting of the burden of, proof. We have already mentioned that the learned Judge held that it was for the defendants in this case to show that the acknowledgment contained in the dakhalnama had been made beyond the period of limitation. He referred to a case reported as Dip Singh v. Girand Singh 26 A. 313 : 1 A.L.J. 1 : A.W.N. (1904) 38, and on the authority of that case he held that it lay upon the defendants here to explain away this acknowledgment. The question of the burden of proof must be decided in every case according to its own facts and it is not for us to say that the decision relied upon by the lower Appellate Court was in any way erroneous. We have to confine our attention to the facts which we have now before us and to ask ourselves why in this particular case should the burden of proof be laid upon the defendants. The principle is of course, that the party who has special means of knowledge of a fact is under the obligation to take up the burden of proving that fact. But as the defendants in the present case are sons and grandsons of one Bam Lai, who in the year 1890 acquired the property at an auction-sale, it would, We think, be difficult for them to have any special knowledge or means of knowledge, which is not equally within the power of the plaintiffs in the present case. The plaintiffs themselves had, by the frame of their plaint, taken up the position that they had accurate knowledge of the particulars of the mortgage under which they claimed to have a right of redemption, otherwise it would have been impossible for them to set out such details of fact as are mentioned in paragraph 3 of the plaint. We think, as regards the admission contained, or said to be contained in the dakhalnama, it was for them to show that the acknowledgment had been made at some date within the period of limitation which would govern a suit for redemption based upon the mortgage upon which they relied.

(3.) We have come to the conclusion, therefore, that the order of the lower Appellate Court cannot stand. For the reasons we have given we find that the plaintiffs came to Court with a specific case which they had failed to prove and that they were unable to show that on the date the suit was brought they had any subsisting right to redeem. Their suit was, therefore, liable to dismissal. We allow the appeal, set aside the order of the Court below and restore the decree of the Court of first instance. The appellants will have their costs both here and in the lower Appellate Court.