SIR MOHAMMAD AKBAR KHAN Vs. MUSAMMAT MOTAL

JUDGEMENT

(1.) This is an appeal by special leave from a judgment and decree of the Court of the Judicial Commissioner, North-West Frontier Province, dated April 28, 1941, affirming a judgment of the Additional Judge of Peshawar dated January 7, 1941, which affirmed the judgment and decree of the Subordinate Judge, 4 Class, Mardan, dated June 11, 1937. The appeal arises out of a suit brought by the appellant against the respondents for possession of certain lands by redemption of a mortgage on paying the amount due upon the mortgage which is claimed to be Rs. 8.

(2.) The facts giving rise to the appeal, which are not in dispute, are as follows: The mortgage for the sum of Rs. 8 which the appellant seeks to redeem has not been produced, and there is no evidence that any written mortgage ever existed. The evidence that the respondents are in possession of the lands in suit as mortgagees consists of: (a) An entry in the Jamabandi (Register of owners holding) for the year 1885-86 of the village of Mardan, in which under the heading "Name of owners with particulars" Burhan-ud-din is mentioned as mortgagor and Fazal Shah is mentioned as mortgagee for Rs. 8 in King Emperor's coin. The property is-stated to be cultivated by the mortgagees themselves. (b) An extract from the Record of Rights relating to the village of Mardan for the year 1895-96 in which Burhan-ud-din is stated to be mortgagor, and Mst. Motai 1st wife, Mst. Mustafa 2nd wife, Mst. Walagai 3 wife, and Mst. Ajjo 4 wife of Fazal Shah are stated to be mortgagees in equal shares, and to be cultivating themselves. (c) An entry in the Mutation Register for the village of Mardan relating to the years 1925-26, in which Burhan-ud-din is stated to be mortgagor and the said four wives of Fazal Shah are stated to be mortgagees in equal shares.

(3.) Mst, Motai, the first wife of Fazal Shah, is the first respondent. The other respondents claim under Sherdil to whom the three other wives of Fazal Shah transferred their rights.