SHANKAR Vs. MUSAMMAT DHARMON

JUDGEMENT

(1.) THIS was a suit for redemption of a mortgage alleged to have been executed in or about the year 1860, A.D., for Rs. 80 in favour of the ancestors of 17 persons who were impleaded as defendants, The majority of these either did not contest the suit at all or filed written statements admitting the plaintiff's claim. The defendants Nos. 3 and 6 contested the suit by pleading that the mortgage had been contracted about 125 or 150 years ago in favour of the persons named in the plaint and that the suit was time-barred. They made no admission in respect of the amount of the mortgage debt and they further pleaded that the plaintiff was not the heir of the original mortgagor. The Court of first instance accepted the evidence produced by the plaintiff and decreed the suit. The learned District Judge on appeal has dismissed the suit on a finding that it is barred by limitation. He says that he disbelieves the plaintiff's evidence and holds it not proved that any mortgage was executed in or about the year 1860 for Rs. 80. He then discusses a plea relied on by the plaintiff namely that certain entries in a Wajib-ul-arz, prepared in the year 1863 in the course of settlement proceedings, operated to save limitation under the provisions of Section 19 of the Indian Limitation Act No. XV of 1877. As regards the nature of these entries, the District Judge says in effect that the predecessors-in-title of the parties to the present suit, are shown as mortgagors and mortgagees respectively of the land now in question that the amount of the debt is not specified but there is a note to the effect that the mortgage maybe redeemed in the month of Jeth in any year. He also admits that the settlement papers according to these facts were signed by the predecessors- in-title of the answering defendants. He then records in very general terms a finding the gist of which is that the entries referred to did not operate as an acknowledgment within the meaning of Section 19 of the Indian Limitation Act. The question thus summarily decided by the District Judge has been before this Court more than once. I refer to the Pull Bench riling in Daia Chand V/s. Sarfaraz Ali 1 A. 117 and to the further ruling Daia Chand V/s. Sarfaraz Ali 1 A. 425. THIS ruling was considered and distinguished in Bisheswar Prasad V/s. Bhagi Rattu Ram A.W.N. (1888) 211 and was again affirmed in Jamuna Prasad V/s. Gokla A.W.N. (1894) 87. I may also note in this place that the ruling in Robert Skinner V/s. Chandan Singh 6 A.L.J. 197 : 2 Ind. Cas. 215 : 21 A. 247 is a recent authority at least for this proposition that the entries made in the Wajib-ul-arz in 1863 are prima facie evidence of the correctness of the facts therein stated. Accepting the finding of the learned District Judge that the plaintiff has failed to prove the execution of any mortgage deed in or about the year 1860, I am of opinion that the plaintiff is entitled to fall back upon the admission of the contesting defendants that their predecessors-in-title entered into the possession of the land in question as usufructuary mortgagees under a contract of mortgage somewhere between the years 1758 and 1783 A.D. on the principle affirmed by the rulings of this Court already quoted. I hold that the entries in the Wajib-ul-arz of 1863, set forth in the judgment of the lower appellate Court, operated as a sufficient acknowledgment to save limitation within the meaning of Section 19 of Act XV of 1877. I might have felt some doubt on this point owing to the fact that the Wajib-ul-arz relied on in this case is subsequent in date to the passing of Act No. XIV of 1859 which for the first time prescribed a period of limitation for suits for redemption of mortgage of landed property, if it were not for the express admission in the Wajib-ul-arz now under consideration that the mortgage was one redeemable in the month of Jeth in any year. THIS involves an admission that the mortgagor then recorded had a subsisting right to redeem in the year 1863 when this record was framed, a right which he would be entitled to exercise in the month of Jeth next following should he deem fit to do so. THIS, in, my opinion, brings the case within the principle laid down in Bisheshar Prasad V/s. Bhagi Rattu Ram A.W.N. (1885) 211 and a fortiori within that of the Other two rulings of this Court, to which I have referred above. I must, therefore, set aside the finding of the Court below on the question of limitation. As there has been no finding by the Court on the other issues involved, for instance as to whether the plaintiff is the heir of the original mortgagor and as to the amount on payment of which the plaintiff would be eh titled to redeem, I must remand this case under the provisions of Order 41; Rule 23, for decision oh the merits. I set aside the decree and order of the lower appellate Court and remand the case accordingly. Costs will abide the event.