Judgement Appeal (No. 77 of 1944), by special leave, from a judgment and decree of the Court of the Judicial Commissioner (April 28, 1941), which affirmed a judgment of the Additional Judge of Peshawar (January 17, 1941), which had affirmed a judgment and decree of the Subordinate Judge, 4th Class, Mardan (June 11, 1937). The following facts are taken from the judgment of the Judicial Committee. This appeal arose 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 on the mortgage, which was claimed to be Rs.8. The mortgage for the sum of Rs.8 which the appellant sought to redeem had not been produced, and there was no evidence that any written mortgage ever existed. The evidence that the respondents were in possession of the lands in suit as mortgagees consisted 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 was mentioned as mortgagor and Fazal Shah was mentioned as mortgagee for Rs.8 in King-Emperors coin. The property was 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 was stated to be mortgagor, and Mst. Motai, 1st wife, Mst. Mustafa, 2nd wife, Mst. Walagai, 3rd wife, and Mst. Ajjo, 4th wife of Fazal Shah were 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 was stated to be mortgagor and the said four wives of Fazal Shah were stated to be mortgagees in equal shares. Mst. Motai, the first wife of Fazal Shah, was the first respondent. The other respondents claimed under Sherdil, to whom the three other wives of Fazal Shah transferred their rights. On June 1, 1935, the appellant purchased from the sons of Burhan-ud-din, the original mortgagor, the equity of redemption in the property for the sum of Rs.25,000. Mst. Motai, the first wife of Fazal Shah, was the first respondent. The other respondents claimed under Sherdil, to whom the three other wives of Fazal Shah transferred their rights. On June 1, 1935, the appellant purchased from the sons of Burhan-ud-din, the original mortgagor, the equity of redemption in the property for the sum of Rs.25,000. On August 27, 1936, the appellant instituted the present suit in the court of the Subordinate Judge, Mardan, claiming to redeem the mortgage vested in the respondents on payment of Rs.8, and praying for a decree for possession of the land. The suit was valued in the plaint for purposes of court fee and jurisdiction at Rs.8. The case was tried by the Subordinate Judge of the 4th Class, Mardan. The learned judge raised various issues, of which the first was "Is the plaintiffs suit within time? " He held that the burden of proving that the suit was within time was on the plaintiff; that, inasmuch as under art. 148 of the Limitation Act a suit for redemption must be brought within 60 years from the time when the right to redeem, or to recover possession, accrued, and there was no evidence that the mortgage was for any fixed term, the plaintiff must prove that the mortgage was effected oil or after August 27, 1876, being sixty years before the date of suit, and that he had failed to do. Accordingly, the suit was dismissed. In appeal the District Judge of Peshawar admitted in evidence under Or.41, r. 27 (1) (b), a further document which he thought might be material, and remanded the case to the lower court under Or.41, r. 23, for a decision on all the issues. From the order of the District Judge an appeal was brought to the Court of the Judicial Commissioner, North-West Frontier Province. It was argued for the appellant that the trial judge had no jurisdiction to hear the case, which was beyond the limits of his pecuniary jurisdiction. That argument was rejected. It was then held that an appeal lay from the order of remand Law Rep. 74 Ind. App. 285( 1946- 1947) Mohammad Akbar Khan V. Musammat Motai 189 made by the District Judge, and that such order was not justified, since no case for admitting further evidence had been shown. That argument was rejected. It was then held that an appeal lay from the order of remand Law Rep. 74 Ind. App. 285( 1946- 1947) Mohammad Akbar Khan V. Musammat Motai 189 made by the District Judge, and that such order was not justified, since no case for admitting further evidence had been shown. Accordingly, the order of the District Judge was set aside, and the case was sent back to the lower appellate judge with directions that he should proceed to decide the case on merits. On the appeal from the Subordinate Judge coming again before the District Judge it was held that the Subordinate Judge was right in the view he had taken on the issue of limitation, and the appeal was dismissed. From that judgment there was an appeal to the Court of the Judicial Commissioner. That court agreed with the views of the lower courts on the question of limitation. They also rejected an argument presented to them that there had been an acknowledgment of the mortgage giving a fresh start for limitation under s. 19 of the Limitation Act, a point which was not argued before their Lordships of the Board.. In the result the appeal was dismissed, and from that decision this appeal was brought. 1947. June 26, 30; July 1. Rewcastle K.C. and Ralph Parikh for the appellant. The first submission is that the Subordinate Judge of the 4th Class had no jurisdiction to entertain this suit his jurisdiction was limited to cases in which the value does not exceed Rs.1,000 reg. 19 of the North-West Frontier Province Courts Regulation, 1931. The property here was worth at least Rs.25,000. If, therefore, the value to be regarded for the purposes of jurisdiction is in any sense the value of the property, clearly this Subordinate Judge had no jurisdiction to try the suit. There are a number of decisions to the effect that in a redemption suit the right sum to look at as being the subject-matter is the sum of money which the redeeming party would have to pay to get his land back. It is not contended that that may not be perfectly correct in a good many cases, but it may be incorrect in others. It is not contended that that may not be perfectly correct in a good many cases, but it may be incorrect in others. In this redemption suit the defendants pleadings stand in this position first, it was alleged that there was no mortgage at all; secondly, that if there was a mortgage, they had been in adverse .possession and had acquired a freehold title to the land; and thirdly, that even if there was a mortgage and they have not acquired title by adverse possession, the suit was barred by limitation. In such an action as that it is clear that the whole property was at stake and was the subject-matter of the suit, and its value was the value for jurisdiction. Ma Hla Saing v. Ma Su We (( 1927) I. L. R. 5 R. 499.) is the only decision which is anything like in the appellants favour, the rest are against him Jaswant Ram v. Moti Ram (( 1926) I. L. R. 7 Lah. 570); Lakshman Bhatkar v. Babaji Bhatkar (( 1883) I. L. R. 8 B. 31, 34.) and Amanat Begam v. Bhajan Lal (( 1886) I. L. R. 8 A. 438, 443.). The argument may be slightly reinforced by referring to s. 60 of the Transfer of Property Act, which makes it clear that where one is dealing with a mortgagee in possession the subject-matter of the suit is the possession of the land, and clearly the possession of te land is the amount of the value of the land. See also s. 58, but this case is stronger than that—here the suit is challenged in several ways which go to the root of the ownership of the land. The second submission is that the onus was on the respondents to prove that the mortgage was entered into within the limitation period. There is no evidence when it was entered into. The documentary evidence shows that the mortgage did not exist before 1884, that is, it is within sixty years of the suit, which is not, therefore, time-barred. Having proved the existence in 1885 of the mortgage by the entry in the jamabandi for 1885-86, the burden of proof then was shifted to the respondents. The documentary evidence shows that the mortgage did not exist before 1884, that is, it is within sixty years of the suit, which is not, therefore, time-barred. Having proved the existence in 1885 of the mortgage by the entry in the jamabandi for 1885-86, the burden of proof then was shifted to the respondents. [Reference was made to Bala v. Shiva (( 1902) I. L. R. 27 B. 271,275, 277.).] The District Judge was right in exercising the power conferred on him by Or.41, r. 27, of the Code of Civil Procedure to direct the production and proof of the copy of the mutation from the Settlement Record of 1883-4 of the village of Mardan. If that document can be referred to it shows quite clearly that this mortgage was not in existence until after January 29, 1884, that is, it came into existence at some time within the period of sixty years. The question is one of the interpretation of Or. 41, r. 27; there are three authorities on the matter; Kessowji Issur v Great Indian Peninsular Ry. (( 1907) L. R. 34 I.A. 115,121.); Indrajit Pratap Saha v. Amar Singh (( 1923) L. R. 50 I. A. 183, 188.) and Parsotim v. Lal Mohar (( 1931) L. R. 58 I. A. 254, 257-8.). That document was vital, and once the court knew of its Law Rep. 74 Ind. App. 285( 1946- 1947) Mohammad Akbar Khan V. Musammat Motai existence it had ample power in its discretion to admit it. There was here a reasonable exercise of the discretionary jurisdiction because there is no evidence on the really vital point as to what was the date of the mortgage. Khambatta K.C. and Umrigar for the respondents. The value for purposes of jurisdiction in a redemption suit, as correctly held by the majority of the High Courts in India, is either the amount of money secured by the mortgage or the amount that was due on the mortgage at the time the suit was instituted Sarada Sundari Basu v. Akramannessa Khatun (( 1924) I. L. R. 510.737,741.); Jaswant Ram v. Moti Ram (( 1926) I. L. R. 7 Lah. 570.), where the cases are reviewed and Kedar Singh v. Matabadal Singh (( 1908) I. L. R. 31 A. 44). The Rangoon ruling, Ma Hla Suing v.Ma Su We (I. L. R. 5 R. 499.) goes much too far. 570.), where the cases are reviewed and Kedar Singh v. Matabadal Singh (( 1908) I. L. R. 31 A. 44). The Rangoon ruling, Ma Hla Suing v.Ma Su We (I. L. R. 5 R. 499.) goes much too far. The principle is not that provided in the Court-fees Act, 1870, namely, the amount secured on the mortgage, but under the Suits Valuation Act, 1887, s. 8, it is the amount found due and payable at the time of redemption. In any case, the appellant has stated in his plaint that the value for purposes of jurisdiction was Rs.8, the amount of the mortgage money, and not the market value of the property, as he now alleges. The trial court had jurisdiction to try the suit. With regard to the limitation point, it has to appear from the statement in the plaint that the suit is not barred by any law, and there can be no question that under the Limitation Act, 1908, s. 3, and the Code of Civil Procedure, Or. 7, rr. 1, 6 and 11 (d), the burden of showing when the right of redemption arose is on the plaintiff see also Rajah Kishen Dutt Ram Panday v. Narendar Bahadoor Singh (( 1875) L. R. 3 I. A. 85, 88.). The concurrent findings of the three courts below that in a suit for redemption of a mortgage the onus is on the plaintiff to prove that the suit is brought within the prescribed time of sixty years is correct, and the concurrent findings that this suit was not within time is correct. Section 20 of the Limitation Act has no application to suits for redemption; it applies only to suits for debt or legacy Anwar Husain v. Lalmir Khan (( 1903) I. L. R. 26 A. 167.), Bhagwan Ganpati v. Madhav Shankar (( 1922) I. L. R. 46 B. 1000.) and Piroze Khan v. Kanhiya Ram (( 1924) A. I. R. (Lah.) 484.). [On the burden of proof that the suit was not time-barred reference was also made to Obhrais Limitation and Prescription, vol. 3, para. 2283, and to Ramchandra Apaji v. Balaji Bhaurav (( 1884) I. L. R. 9 B. 137.).] Here the position was correctly stated in the judgment of the Judicial Commissioner where it was said that "undoubtedly" the onus was correctly placed on the plaintiff to prove that the suit was within time. 3, para. 2283, and to Ramchandra Apaji v. Balaji Bhaurav (( 1884) I. L. R. 9 B. 137.).] Here the position was correctly stated in the judgment of the Judicial Commissioner where it was said that "undoubtedly" the onus was correctly placed on the plaintiff to prove that the suit was within time. There is nothing to show when the mortgage was effected. It was for the plaintiff to make out that it was effected on or after August 27, 1876. He has failed to discharge the burden which was placed on him to prove this fact.” With regard to Or.41, r. 27, and the admission of the document of 1883-4, Parsotim v. Lal Mohar (( 1931) L. R. 58 I. A. 254.) shows that the document must have a direct or important bearing on the case, and here the finding of the Judicial Commissioner that it has no relevance is correct. Rewcastle K.C. replied. It is submitted that Anwar Husain v. Lalmir Khan (I. L R. 26 A. 167.), Bhagwan Ganpati v. Madhav Shankar (I. L. R. 46 B. 1000.) and Piroze Khan v. Kanhiya Ram (( 1924) A. I. R. (Lab.) 484.) were wrongly decided. If s. 20 of the Limitation Act can be construed as saving the relevant article then it ought to be so construed, and here it can be so construed. Reliance was placed on Obhrais Limitation and Prescription which, in turn, relied on Ramchandra Apaji v. Balaji Bhaurav (I. L. R. 9 B 137.), but that case does not support what Obhrai says, and has nothing to do with this case. The appellants case is supported by what was said in Rajah Kishen Dutt Ram Panday v. Narendar Bahadur Singh (L. R. 3 I. A, 85, 88.), and in the circumstances of this case the onus has been shifted. July 29. The judgment of their Lordships was delivered by SIR JOHN BEAUMONT, who stated the facts set out above and continued The points argued before the Board were First that the case was Law Rep. 74 Ind. App. 285( 1946- 1947) Mohammad Akbar Khan V. Musammat Motai 191 beyond the limits of the pecuniary jurisdiction of the trial judge. July 29. The judgment of their Lordships was delivered by SIR JOHN BEAUMONT, who stated the facts set out above and continued The points argued before the Board were First that the case was Law Rep. 74 Ind. App. 285( 1946- 1947) Mohammad Akbar Khan V. Musammat Motai 191 beyond the limits of the pecuniary jurisdiction of the trial judge. Secondly that the burden of proving that the suit was within time was wrongly placed on the appellant and, alternatively, that if such burden lay initially on the appellant, the evidence produced was sufficient to shift the burden to the respondents. Thirdly that the District Judge at the first hearing before him was right in admitting further evidence and in remanding the case. Their Lordships can dispose of the third point shortly. The power of an appellate court to admit further evidence under Or.41, r. 27 (1) (b), is confined to cases in which the court requires any document to be produced, or any witness to be examined, to enable it to pronounce judgment or for any other substantial cause. As pointed out by this Board in Parsotim v. Lal Mohar (L. R. 58 I. A. 254.), the power only arises where the court requires the further evidence for one of the two causes specified. The document which the learned District Judge allowed to be given in evidence in this case was a copy of a Mutation from the Settlement Record of 1883-84 of the village of Mardan, and it was suggested that that document would help the case of the appellant. But the document in question was a copy of a public document which the appellant could have put in evidence at the trial. It was certainly not required to enable the learned District Judge to pronounce judgment, nor does there appear to have been any other substantial cause for which the judge required the document. Their Lordships agree with the view of the Court of the Judicial Commissioner that the effect of the remand order was to allow the plaintiff " to fish out evidence in order to prove his case and make up " the lacuna which, at the present moment, exists." Their Lordships agree that the remand order was not justified. The question of jurisdiction arises in this way The trial judge, as already noted, was a Subordinate Judge of the 4th Class, and under reg. The question of jurisdiction arises in this way The trial judge, as already noted, was a Subordinate Judge of the 4th Class, and under reg. 19 of the North-West Frontier Province Courts Regulation, 1931, his jurisdiction was limited to cases in which the value does not exceed Rs.1,000. The effect of the Court-fees Act, 1870, s. 7, sub-s.(ix), and s.8 of the Suits Valuation Act, 1887, is that the normal rule that valuation for court fees and jurisdiction is the same does not apply to (amongst others) redemption suits, and there is no statutory provision as to the amount at which a suit for redemption is to be valued for purposes of jurisdiction. The question which arises is whether, in a redemption suit with the mortgagee in possession, the value should be based on the value of the property concerned, or on the value of the interest therein of the mortgagee. Reliance is pieced by the appellant on Ma Hla Saing v. Ma Su We (( 1927) I. L. R. 5 R. 499.), where it was held that in a redemption suit where the mortgagee is in possession the subject-matter is the land sought to be redeemed, and the valuation of such suits for the purposes of jurisdiction should be based on the value of the land. That view has not prevailed in the Indian High Courts where it has been held that value for purposes of jurisdiction in a redemption suit depends on the amount found due to the mortgagee. In their Lordships opinion this latter view is clearly correct. As pointed out in the judgment of the Court of the Judicial Commissioner, a redemption suit is concerned with the interest of the mortgagee only and not with the interest of the mortgagor, and the value of me equity of redemption is irrelevant. It is no doubt true that where the mortgagee is in possession the effect of granting or withholding an order for redemption may be to confirm the title of the mortgagor or the mortgagee, as the case may be, to the whole property, but this is an incidental effect of the order made, and does not involve that the whole property is the subject-matter of the litigation. In their Lordships view, therefore, the suit was correctly valued for purposes of jurisdiction at Rs.8. That leaves only the question of limitation. In their Lordships view, therefore, the suit was correctly valued for purposes of jurisdiction at Rs.8. That leaves only the question of limitation. Section 3 of the Limitation Act enacts that " Subject to the provisions " contained in ss. 4 to 25 (inclusive), every suit instituted, " appeal preferred, and application made, after the period of " limitation prescribed therefor by the first schedule shall be " dismissed, although limitation has not been set up as a " defence.” In Or. VII of the Civil Procedure Code, r. 1 requires the plaint to contain, amongst other particulars, the facts constituting the cause of action and when it arose. Rule 6 requires that where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint must show the ground on Law Rep. 74 Ind. App. 285( 1946- 1947) Mohammad Akbar Khan V. Musammat Motai 192 which exemption from such law is claimed. Rule 11 enacts that the plaint shall be rejected if the suit appears from the statement in the plaint to be barred by any law. It is clear from these provisions that the burden rests in the first instance on a plaintiff to show that his suit was not instituted after the period prescribed therefor by the first schedule and accordingly is not required to be dismissed under s. 3. The appellant therefore has to show, as the learned Subordinate Judge held, that the mortgage on which his title is based was made on or after August 27, 1876. All that he does show is that the mortgage was in existence in the year 1885. The appellant has argued that this is sufficient to shift to the respondents the burden of showing that the suit was not within time. No doubt, in some cases, the evidence may reach a point at which the onus of proving a suit to be out of time rests on the defendant, and regard must always be had to the party in whose knowledge the relevant facts may appear to be. But their Lordships agree with the courts in India in thinking that the fact that a mortgage existed in 1885 affords no ground for presuming that it arose in or after 1876; nor does there appear to be any reason in this case for thinking that the mortgagees are withholding relevant information. But their Lordships agree with the courts in India in thinking that the fact that a mortgage existed in 1885 affords no ground for presuming that it arose in or after 1876; nor does there appear to be any reason in this case for thinking that the mortgagees are withholding relevant information. The mortgagors admittedly left in possession of a valuable estate for over fifty years parties claiming under a mortgage for a nominal amount and no explanation of this conduct is forthcoming. If there is a difficulty now in proving the origin of the mortgage, that is due to the long delay by the mortgagors in attempting to enforce their claim. It was argued before this Board, though not before the courts in India, that the time for redemption had been extended by the operation of s. 20 of the Limitation Act. Section 20, sub-s.1, provides " Where interest on a debt or " legacy is, before the expiration of the prescribed period, " paid as such by the person liable to pay the debt or legacy, " or by his agent duly authorized in this behalf, or where part " of the principal of a debt is, before the expiration of the " prescribed period, paid by the debtor or by his agent duly " authorized in this behalf, a fresh period of limitation shall be " computed from the time when the payment was made,” Sub-section 2 provides " Where mortgaged land is in the " possession of the mortgagee, the receipt of the rent or " produce of such land shall be deemed to be a payment for " the purpose of sub-section (( 1927) I. L. R. 5 R. 499.)." The section, in terms, refers to the payment of interest on a debt or legacy, and makes receipt of the rent or produce of the land by a mortgagee in possession equivalent to a payment of interest, and a fresh period of limitation has to be computed from the time when the payment was made. This must clearly mean a fresh period of limitation for payment of the debt or legacy, and no reference is made in the section to the right of redemption. This must clearly mean a fresh period of limitation for payment of the debt or legacy, and no reference is made in the section to the right of redemption. The argument, however, is that the mortgage contract is one, that the rights of mortgagor and mortgagee are reciprocal and correlative, and that the legislature in extending the time within which the mortgagee may sue for his debt must have intended at the same time to extend the period in which the mortgagor can redeem the property, since it would be anomalous to leave the right of the mortgagee to recover his debt alive, after his obligation to be redeemed is dead. Mr. Khambatta, for the respondents, has referred the Board to three decisions in India, namely, Anwar Husain v. Lalmir Khan (( 1903) I. L. R. 26 A. 167.); Bhagwan Ganpati v. Madhav Shankar (( 1922) I. L. R. 46 B. 1000.); Piroze Khan v. Kanhiya Ram (( 1924) A. I. R. (Lah.) 484.), in which this argument was rejected, and it was held that s. 20 applied only to extend the time for recovery of the mortgage debt. In their Lordships opinion these cases were rightly decided. The wording of s. 20 is clear, and to extract from it an extension of the time for redemption would involve reading into the section something which is not there, and this could only be justified if it appeared to be necessary in order to give effect to the intention of the legislature to be ascertained from the Act as a whole. The construction suggested would involve that there was in effect no time limit for the redemption of a usufructuary mortgage, and this is not an intention which can be readily imputed to the legislature. Their Lordships are not impressed with the suggested anomaly arising from the construction which they place on the section. In the unlikely event of a mortgagee suing to recover his money after the right of redemption has become barred it can hardly be supposed Law Rep. 74 Ind. App. 285( 1946- 1947) Mohammad Akbar Khan V. Musammat Motai 193 that he would be successful without being required to perform the condition inherent in every mortgage contract that the security will be returned when the money is paid. 74 Ind. App. 285( 1946- 1947) Mohammad Akbar Khan V. Musammat Motai 193 that he would be successful without being required to perform the condition inherent in every mortgage contract that the security will be returned when the money is paid. For these reasons, which are substantially those which appealed to the Court of the Judicial Commissioner, their Lordships think that this appeal fails and they will humbly advise His Majesty accordingly. The appellant must pay the costs of the respondents.