SAHDEO OJHA Vs. MUSAMMAT LACHHMINA KUAR

JUDGEMENT

(1.) This is an appeal against an order passed on appeal by the District Judge of Ghazipur. The appeal before the lower Court arose out of a suit for redemption originally brought by one Ram Lochan, who died during the pendency of the suit and was succeeded by his widow Lachhmina Kuar. It is necessary for the decision of the case to refer with some particularity to the contents of the plaint. In the first paragraph of the plaint it was alleged that the defendants were the mortgagees of certain property which had been mortgaged by one Bhinik Ojha, the ancestor of the plaintiff. In the second paragraph of the plaint various particulars of this mortgage transaction were set out. It was recited that the date of the mortgage was 50 years before suit; the names of the parties to the transaction were given and with regard to the amount of the mortgage-money it was stated that the plaintiff was not personally aware of the amount of the mortgage, because the defendants refused to show him the mortgage-deed; he stated, however, that as far as he could ascertain the amount was Rs. 99-15-9. The details of the mortgaged property were stated and it was said that the agreement between the parties was that the mortgagee should appropriate the profits in lieu of the interest. Paragraph 3 of the plaint is a repetition of the allegation contained in the 2nd paragraph, but it is stated more definitely that the mortgage was for Rs. 99-15-9 and had been made 50 years before suit. In the 8th paragraph of the plaint a reference was made to two deeds of mortgage, which it was alleged by the plaintiff that defendants had put forward in the course of certain proceedings in the Revenue Court for the correction of the jamabandi. One of these mortgages was expressed to have been executed in 1269 Fasli while the second deed was alleged to bear date 1280 Fasli. The plaintiff did not in any way admit that these two documents just mentioned were genuine, on the contrary he alleged that Ganga Jali and Gura Kuar had no right to encumber the property by executing the second of these deeds. In fact it was denied that the persons executing the deeds had any power to do so. The defence to this suit for redemption was a denial of mortgage set out in the plaint. The defendants put forward three deeds of mortgage (1) 1269 Fasli, (2) 1280 Fasli, and a document executed in the year 1885 A.I). The Court of first instance, after fixing issues arising on the pleadings and coming to a decision on those issues, dismissed the plaintiff s suit on the ground that the plaintiff came to Court with a definite cause of action which he failed to make out. In his judgment the Munsif observes that "it was the plaintiff s duty to prove the mortgage set up by her but she adduced no evidence on the point. Lachhmina Kuar made no attempt to prove the mortgage alleged by her which she was bound to prove."

(2.) When the case came before the District Judge he held that the suit ought not to have been dismissed. He decided that the defendants had been in possession of the property in suit as mortgagees and being of opinion that the plaintiff had not the necessary means of knowledge to state with precision the particulars of the mortgage he thought that the plaintiff was entitled to get a decree for redemption of the mortgage or mortgages set up by the defendants. Consequently he set aside the decree of the Munsif and remanded the case to the Court of first instance under Order XLI, Rule 23 for disposal on the merits.

(3.) It is contended here that the lower Appellate Court was wrong in passing the order for remand. We are of opinion that this contention is right. The learned Counsel for the plaintiff referred us to certain rulings of the Bombay High Court and other rulings, including rulings of this Court, viz., Parmanand Misr v. Sahib Ali 11 A. 438 : A.W.N. (1889) 155 and Sheo Prasad v. Lalit Kuar 18 A. 403 : A.W.N. (1896) 132. Both these cases lay down the principle to be observed in dealing with suits in which possession is asked for and resisted by a plea of adverse possession and suits in which possession is asked for by redemption. It was held in Parmanand Misr Sahib Ali 11 A. 438 : A.W.N. (1889) 155 just referred to that In a suit for possession of land by redemption of mortgage, the very nature of which presupposes that the possession of the defendant or his predecessor was lawful, the plaintiff must in his plaint show the title upon which he relies, and, therefore, a title subsisting at the date of suit. Unless he gives prima facie evidence to show that his suit is within time, he fails to prove his title or subsisting right to his property.; A similar principle was laid down in Sheo Prasad v. Lalit Kuar 18 A. 403 : A.W.N. (1896) 132. There the plaintiffs came into Court alleging a mortgage of the year 1854 and asking for redemption of that mortgage. It was held that when it was found that the plaintiffs had failed to prove their mortgage of 1854, they were not entitled in that suit to a decree for redemption of other mortgages which might be found to be subsisting between the parties but which formed no part of the cause of action upon which the plaintiffs came into Court.