TAIK RAM Vs. KHIALI RAM; PARSOTAM

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 bean 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 Taik 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 Sambat 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 bis was. 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 1890, 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 submit to 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 acknowledgement contained in a document described as a dahhalnama 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 acknowledgements referred to in paragraph 5 of the plaint, the Munsif held that the plaintiffs had failed to show that any acknowledgement made by the mortgagee 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 acknowledgements, however, he took a different view from the court of first instance. He refers to the various statements which were relied upon by the plaintiffs as acknowledgements and held that in the circumstances it lay upon the defendants to show that these acknowledgements 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 still a 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 in 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 acknowledgements. It is contended that mere acknowledgements 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 appellate court wrongly threw upon the defendants the burden of proving that the suit was time-barred. In the fourth ground exception was taken to the manner in which the lower appellate court dealt with one particular acknowledgement, 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 acknowledgements 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 which 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 in Ashfaq Ahmad v. Wazir All (1889) I.L.R. 11 All. 423. It is true that this Judgment has in subsequent decisions of this Court been criticized 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., that 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 Muhammad Husain Khan in 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. [Some evidence was here referred to.] 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 1913 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 acknowledgements or the admissions on which the plaintiffs relied in this case. The position is somewhat curious, because obviously the plaintiffs were not relying upon these acknowledgements 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 acknowledgement 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 acknowledgements upon which the plaintiffs rely for the purpose of showing that they have still a subsisting right to redeem. [Four documents, namely (1) Wajib-ul-arz of 1862, (2) Khewat of 1862, (3) Certified copy of the fly-sheet of the record of a mutation case and (4) Khewat of 1876-77 were here referred to and it was pointed out that none of them was signed by the parties against whom the property was claimed or by any one from whom they derived title]. 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 acknowledgement under Section 19 of the Limitation Act. It is proved that in the year 1890 Ram Lai, 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 immovable 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 Earn 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 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 vakil who appears to support the appeal that the learned Subordinate Judge was wrong in treating this document as an acknowledgement for the purpose of Section 12 of the Limitation Act. Before proceeding to discuss the 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 acknowledgements were contained. The learned Subordinate Judge failed to notice that it was necessary for the plaintiffs to show that any document purporting to contain an acknowledgement) must tear 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 acknowledgement for the purpose of Section 19 of the Limitation Act. In this connection we refer to the decision of the Bombay High Court reported in Dharma Vithal v. Govind Sadvalkar (1883) I.L.R. 8 Bom. 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 plaintiff s ancestor mortgaged some land to the defendant s ancestor in 1797 and placed him in possession. A few years after this mortgage was executed Loth the mortgagor and mortgagee went out 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 acknowledgement 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 19 of Act XV of 1877, they pointed out that the section intends a distinct acknowledgement of an existing liability to serve as a re-creation of it at the time of such acknowledgement, but that there cannot really be an acknowledgement without knowledge that the party is admitting something. They went on co observe that all that the receipt admitted 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 of the report): "The intention of the 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 this 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 judgement. 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 acknowledgement contained in the dakhalnama amounts to nothing more than a description of the property of which Earn 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 acknowledgement 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 the dakhalnama had been made beyond the period of limitation. He referred to the case of Dip Singh v. Girand Singh (1903) I.L.R. 26 All. 313, and on the authority of that case he held that it lay upon the defendants here to explain away this acknowledgement. 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 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 Ram 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 know ledge of particulars of the mortgage under which they claimed to have 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 this acknowledgement 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. 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 same 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.