Mt. Khiro Kuer vs Syed Noorul Hussain and Others

Wort, J.—This is an appeal from the decision of the Subordinate Judge of Patna affirming the decision of the trial Court and dismissing the plaintiff''s action for redemption. The plaintiff set up a mortgage of 1312. The defendants appear to have admitted a mortgage of more than sixty years ago. They say the mortgage was in favour of their father or ancestor. The trial Court dismissed the suit on the ground that the plaintiff had not established his mortgage. The appellate Court dismissed the suit on the same ground; but stated as reasons for that decision that there was no document evidencing the mortgage, that it was an illegal mortgage by reason of the Transfer of Property Act, and that there being no proof that the defendants had been inducted into the land within the statutory period, the plaintiffs were unable to eject them.

Nothing can be urged against the decision of the learned Judge in the Court below as to what the plaintiff proved. It is not contended by Mr. De that he did establish by evidence a mortgage between his client or his ancestor and the ancestor of the defendants; but the whole contention of the appellant, as put forward by Mr. De, is based on the decision in Kailash Rai v. Mt. Jaga Kuer 1931 Pat 295. That was a case in which the plaintiff had failed either to prove the original mortgage deed or to give satisfactory secondary evidence in regard to it, but he had proved to the satisfaction of the Courts a mortgage. The defendant was not interested to deny the mortgage, nor did he plead that the mortgage had been satisfied, nor did he question the amount of the consideration. In those circumstances this Court held, affirming the judgment of Boss, J., that as the mortgage had been established, the plaintiff was entitled to redeem.

By Mr. Hasan Jan, who appears on behalf of the respondents, it is contended that the proof that the plaintiff has given in this case is insufficient to entitle him to a decree for redemption. His contention is that he admitted no mortgage by the predecessor of the plaintiff to the ancestor or predecessor of the defendants. But it is quite obvious from the judgment of the Court below that his case was consistent only with the fact that the predecessor-in-title of the defendants had got into possession as a mortgagee. Now if the matter was to rest there, it would seem that the decision of this Court in the case to which I have referred will apply and the plaintiff would be entitled to succeed. But it is to be noticed that no question of limitation arose in that case.

What would have been the decision had the defendants set up a state of facts which would have led the Court to the conclusion that the action had been brought beyond the period of limitation, I am unable to say. This Court might have held that the onus was on the plaintiff or the defendant; but, again, of that I can express no view. It is not sufficient for Mr. De to argue that the effect of the decision cited above was to state that, whatever the circumstances under which the action for redemption was brought, once it was proved that the defendant was in possession as a mortgagee, the plaintiff was entitled to redemption. Mr. Hasan Jan relies on the decision of the Allahabad High Court in Parmanand Misr v. Sahib Ali, (1889) 11 All 438.

That was a case not dissimilar in fact to the present and Sir John Edge in the course of his judgment made this statement. He pointed out in the first place that there was a considerable difference between the law of England in this matter and the law of India, and said that there was a clear distinction between a case where the plaintiff sought to recover possession of land by an action for redemption and those cases where defence to a suit for possession of land was that the action was barred by limitation. The words of Sir John Edge were these:

The very nature of a suit for possession of land by redemption of mortgage presupposes that the defendant or those whom he represents in title had lawfully obtained possession of the land, and the plaintiff must show in his plaint, and must support his case by at least prima facie evidence showing his title to possession, and his right to disturb the possession of the defendant which had a lawful origin. If in such cases the mortgagor''s title to the and the right to redeem have become extinguished by lapse of time, such extinguishment was effected not by any overt act of the mortgagee, but by the mortgagor having failed to bring his suit within the time allowed by the Limitation Act. Unless a plaintiff in a redemption suit gives prima facie evidence to show that his suit is brought within the time, allowed by the Limitation Act, he, in my opinion, fails to show that he has subsisting right to the property in suit, or in other words he fails to prove his title.

Mahmood, J., in expressing his view of the case stated that he had considerable doubts during the course of the case, but having heard the judgment as delivered by Sir John Edge he came to the same conclusion. Now the decision in that case in my judgment is consistent with the case of Sewaji Vijaya Raghunadha v. Chinna Chetti, (1863) 10 MIA 151(P C). It is true that that was a case in which there had been an uninterrupted possession of the defendant for something like forty years. The length of possession in this case is unknown. But the Master of the Rolls, in delivering the opinion of their Lordships of the Privy Council, stated this:

A plaintiff who alleges that his ancestors 44 years ago made a mortgage to the ancestor of the present possessor of a property, and by virtue thereof to dispossess the present possessor, must prove his case clearly and indefeasibly. He must succeed by the strength of his own title and not by reason of the weakness of his opponents.

The decision of the Allahabad High Court seems to me to be consistent with the reasons of their Lordships of the Judicial Committee. The view as expresses by the Allahabad High Court has been followed in other High Courts. Although it is contended by Mr. De that the view of this Court is different, that argument seems to be quite unwarranted for the simple reason that the question of limitation was not raised in the case upon which Mr. De relied and it is impossible to contend that the decision is valid for anything other than it decides. It is impossible to say that, because the Judges have said in that case that where a mortgage is established the plaintiff is entitled to redemption, it necessarily follows that if a. question of limitation arose or was argued the onus would be on the defendant. But apart from the issue which was framed by the learned Munsif, this question of limitation would arise by reason of the general allegations of the parties in the case.

To repeat myself, the reasoning of the learned Judges of the Allahabad High Court in substance was this: that the plaintiff had taken the onus upon himself by reason of the allegations which he made, namely, that the defendant had gone into possession and his entry upon the land was lawful. It was therefore necessary for him to show completely and indefeasibly (to quote the words of the Privy Council) such circumstances as would entitle the plaintiff to bring the possession of the defendant to an end. But in this case (unlike the case of this Court upon which Mr. De relies) no mortgage was in fact proved; and that to my mind on the authorities disposes of the whole case. This appeal might thus have been disposed of on the findings of the Courts below but I have considered the questions of law because they have been argued both by Mr. Hasan Jan and Mr. De appearing on behalf of the parties in this case.

It seems to me for the reasons which I have stated that the appeal fails and must be dismissed with costs. Leave to appeal is refused.