GAURI Vs. MANGLA

JUDGEMENT

(1.) This appeal raises a nice question of law and on the point there does not appear to be any clear authority. The Respondent No. 1 brought the suit, out of which this appeal has arisen, for recovery of a certain plot of land, over which there is a grove, by way of redemption. He alleged an ancient mortgage said to have been made by his father Kallu in the year 1863 for a sum of Rs. 500 in favour of three persons, Dewan, Yad Ram and Kanhaiya, being the ancestors of the Defendants Nos. 3 to 7. It is common ground that out of the entire area mortgaged the mortgagees made a sub-mortgage, in favour of certain persons, of all but the plot in suit, for a sum of Rs. 400. The sub-mortgage has been redeemed by the plaintiff and only the plot in suit remained unredeemed. The mortgagee interest of the Defendants Nos. 3 to 7 was sold by auction on the 21st of January 1878 to the father of the Defendants Nos. 1 and 2. The plaintiff impleaded all the seven persons in his suit, viz. Defendants Nos. 1 and 2, as the auction-purchasers of the rights of the descendants of the original mortgagees and also the descendants of the original mortgagees themselves. The Defendants Nos. 1 and 2 and the Defendants NOS. 3 to 7 contested the suit separately.

(2.) The common defence was that there was no mortgage and the special defence of the Defendants Nos. 3 to 7, some of whom are the appellants before me, was that they were occupancy tenants of the plot in suit and even in the case of redemption they could not be ousted. The suit has succeeded in both the Courts below. They both found the mortgage established and subsisting. In this Court the learned Counsel for the appellants has taken virtually two points viz. (1) the mortgage has not been established, and (2) in any case the Defendants Nos. 3 to 7 were tenants and could not be ousted in spite of their redemption. As an argument relating to the second point it was urged that the Courts below ought to have taken proceedings under S, 202 of the Agra Tenancy Act.

(3.) Taking the first point first: The ground No. 2, viz. the evidence of Bhagwan, is not legally sufficient to prove the mortgage, was taken because of the rather meagre grounds given by the lower appellate Court for coming to the conclusion that the mortgage had been proved. The Court of first instance deals with the entire evidence in full and it shows that there was sufficient material from which the existence of the mortgage could be inferred lawfully. It appears that there is a village record of the year 1254F. (corresponding to 1848 and not 1833) and it does not mention any mortgage by Kallu although it does mention another mortgage by a different person. In the Settlement Record of 1863 the mortgage in question is mentioned in all its details. It would be a reasonable inference to draw that between these two dates, viz. 1848 and 1863, the mortgage in question was made. Then comes the acknowledgment of 1876 in the deed of sub-mortgage. I hold that there was sufficient material before the Courts below for the purpose of holding that there was a mortgage of 1863 and that it did subsist at the date of the suit.