Des Raj and others vs Tej Ram and others

J.V. Gupta, J.—This is plaintiffs'' second appeal whose suit for declaration and possession by redemption has been dismissed by both the Courts below.

Munshi Ram and Jaimal Singh, sons of Hosbiar Singh, were owners of land measuring 228 kanals 12 marlas. Out of this land, they mortgaged 2/3rd share of the land in favour of Nihal Chand, and Ram Parkash sons of Budha Mal and 1/3rd share of the land in favour of Janak Raj and Pirthi Singh sons of Tej Ram. Nihal Chad and Parkash Chand, mortagagees, sold their rights in favour of Tej Ram defendant, Jaimal Singh, mortgagor, died in the year 1954-55 leaving behind Munshi Ram as his only heir. Munshi Ram also died in the year 1964. The plaintiffs-claiming that they and the defendant Nos. 4 and 5 were heirs of Munshi Ram filed an application for redemption of the suit land on payment of Rs. 3350/-in the court of Collector, Gurdaspur, on 31st January, 1970. This application was dismissed by the Collector being barred by time. Thus, the plintiffs filed the present suit, for declaration that the order of the Collector was illegal and they entited to redeem the suit land on payment of the Mortgage amount. The suit was contested inter alia on the plea that Munshi Ram and Jaimal Singh mortgaged the suit land in favour of their predecessors in-interest more than 60 years before the institution of the application for redemption in the Court of the Collector, Gurdaspur, and therefore, the application was rightly dismissed being barred by time. It was also pleaded that the plaintiffs had no tight to get the land redeemed and the suit for redemption was also barred by time. The trial Court found that the date of the mortgage has not been proved. Though it was held that Tej Ram, Janak Ram and Pirthi Chand are the mortgagees of the land to the extent of 1/3rd share and Ram Parkash and Nihal Chand are shown to be the mortgagees of the land to the extent of 2/3 share, whereas Jaimal Singh and Munshi Ram were shown as mortgagees in the Jamabandi for the year 1946-47. It was further found that the plaintiffs had no subsisting right to redeem the suit land. Since the date of the mortgage was not proved, the suit for redemption was held to be barred by time. Consequently, the plaintiffs'' suit was dismissed. In appeal, the learned Additional District Judge affirmed with the said findings of the trial Court and thus maintained the decree dismissing plaintiffs suit. Dissatisfied with same, the plaintiff have filed the second appeal in this Court. Alongwith the appeal, they also filed an application under order 41, Rule 27, Civil Procedure Code, for adducing additional evidence. This, Civil Misc. Application No. 2682-C of 1976 was directed to be heard alongwith the appeal.

The learned counsel for the appellants contended that it has been wrongly held that the suit was barred by time. The plaintiffs gave the date of mortgage in their statements and the suit was within time from that date. In any case, argued the learned counsel, there is a clear acknowledgement in the registered Deed of Exchange, dated 24th November, 1956, which is now sought to be produced byway of additional evidence. Thus argued the learned counsel, in order to do justice between the parties, the additional evidence be allowed.

After hearing the learned counsel for the parties, I do not find any merit in this appeal. It has been concurrently found by both the Courts below that the plaintiffs had failed to prove the date of mortgage. There is no documentary evidence to show that on what date the mortgage in dispute came into existence. Once it is so held that the plaintiffs have failed to prove the date of mortgage then question of the acknowledgement as such, if any, could not arise. Section 18 of the Limitation Act provides that the acknowledgement of the liability should be before the expiration of the prescribed period for a suit. This could be determined only if the date of the mortgage was proved. It was only in that situation that the question of acknowledgement, if any, could arise. Thus the additional evidence sought to be produced in this appeal, even if allowed, is of no consequence. Surprisingly enough, even in the plaint, no date of mortgage was mentioned and there is no cogent evidence on the record to prove also when the mortgage in dispute was created. Thus, I find no infirmity or illegality in the concurrent findings of the two Courts below as to be interefered with in second appeal.

Consequently, the appeal fails and is dismissed with no order as to costs. The Miscellaneous application also stands dismissed.