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Rajasthan High Court · body

1956 DIGILAW 51 (RAJ)

Kela v. Pema

1956-02-15

S.RANAWAT

body1956
This revision which has wrongly been described as an appeal has been filed against an appellate order of the Additional Commissioner Settlement, Rajasthan, dated 11.4.55 in a case relating to entries in Record of Rights. 2. We have heard the learned counsel appearing for the parties and have gone through the record as well. The proceedings commented upon an application of Pema, dated 14.6.54 presented before the Assistant Records Officer with the request that the land in dispute has been entered in the name of Kaila, opposite party which is wrong as the land belongs to him and was mortgaged by him with Kaila The opposite party denied the allegation of mortgage and pleaded that he was in possession in his own right. The Assistant Record Officer by his decision, dated 14.10.54 held that the mortgage as alleged by Pema was proved and hence the opposite party Kaila should be recorded as Murtahan Bil Kabz and Pema, Rahin. Kaila went up in appeal before the Record Officer who agreed with this view. Thereafter Kaila went up in second appeal before the Additional Settlement Commissioner who also upheld the order of the lower courts. Hence this revision. 3. The learned counsel for the applicant has argued before us the findings of all the lower courts as regards the creation of the mortgage are based on no legal evidence but purely on conjectures and surmises an 1 thus a grave irregularity has been committed in the exercise of their jurisdiction. We have, therefore, gone through the entire evidence. No documentary evidence whatsoever has been led in the case either by the applicant or by the opposite party on the point of creation of the mortgage. Some witnesses have been examined by both the parties. Pema has stated that one of the fields has been under mortgage since 20 years, the mortgage money being Do Manaj China and the other field is under mortgage, the mortgage money being Rs. 5/- It was stated by him in cross-examination that the mortgage was created by his father Nathu and that he cannot remember the month and time of the mortgage. Sukha has stated that the land is the bapoti of Pema and that since Svt. 5/- It was stated by him in cross-examination that the mortgage was created by his father Nathu and that he cannot remember the month and time of the mortgage. Sukha has stated that the land is the bapoti of Pema and that since Svt. 1956 (since 54 years at the time of statement) it has been in the possession of Kaila but that he cannot say in what capacity Kaila was in possession over it. A similar statement has been made by Amra. Khema has also stated that Kaila has been in possession since Svt. 1956 and that at the time of attestation proceedings a Panchayat was held and the decision of the Panchas was that Pema should accept Rs. 55/- but that Pema refused to accept the same. He has also stated that he does not know in what capacity Kaila was in possession over the land. Mana, uncle of Pema, has stated that at the time of attestation proceedings Pema wanted the land. Kaila offered to pay Rs. 55/- and this amount was paid to Mana but Pema refused to accept the same. He has also stated that the mortgage was created 20 years ago. Dhula has stated that the land has been under the mortgage since Svt. 1956 but that the amount of the mortgage money is unknown to him Kubera has stated that the land is in possession with Kaila since Svt. 1950 and that his forefathers used to say that the land belonged to Pema At the time of the Panchayat Pema demanded the land but Kaila refused to part with it. Panchayat suggested to Pema to accept the money but Pema refused Nathulal an employee of the settlement department has stated that at the time of attestation proceedings Kaila produced before him an unregistered sale-deed of the land in dispute alleged to have been executed by Mana in favour of Kaila. As the deed was not executed by Kaila it was not attached any significance. It was however mentioned in it that the land was under mortgage with Kaila and on this basis he came to the opinion that Kaila was the mortgagor of the land in dispute. This is in all the evidence of the creation of the mortgage adduced by Pema. 4. It was however mentioned in it that the land was under mortgage with Kaila and on this basis he came to the opinion that Kaila was the mortgagor of the land in dispute. This is in all the evidence of the creation of the mortgage adduced by Pema. 4. We need not go at length through the evidence led by Kaila to show that no mortgage was ever created, for the simple reason that the evidence led by Kaila is not at all adequate or potent enough. Most of the witnesses produced by Pema have given hearsay evidence as regards the creation of the mortgage and hence it is legally inadmissible. Those who have deposed from their personal knowledge about the creation of this mortgage are clearly unreliable for the simple reason that looking to the time when the mortgage was created and the age 0f the witness, they can hardly be expected to have any direct knowledge about this affair. Khema is only 40 years old and deposed about a fact which had taken place about 54 years ago. Similarly Kubera who is aged 40 years deposed about this mortgage which is alleged to have taken place 54 years ago, Pema has stated that the mortgage took place about 20 years ago which is in direct contradiction to the evidence given by his other witnesses. Thus there remains no evidence worth the name in support of the creation of the mortgage. As observed by their Lordships of the Rajasthan High Court in Mohabat Singh. Nandlal, Civil II, Appeal No. 118 of 1950 decided on 26.4.51", the defendant and his predecessors have apparently been in possession of this house for a very long time and as such possession cannot be disturbed merely on surmises and suspicions. This was a case where both the lower courts had held the alleged mortgage to have been proved on the basis of documentary and oral evidence. Their Lordships examined the entire evidence and came to the conclusion that the witnesses who had deposed about the mortgage were young enough to depose from their personal knowledge about the mortgage. The decisions of the lower courts were therefore reversed and it was held that the mortgage was not proved. This case is almost on all fours with the present case. Pema has failed to establish the alleged mortgage. The decisions of the lower courts were therefore reversed and it was held that the mortgage was not proved. This case is almost on all fours with the present case. Pema has failed to establish the alleged mortgage. Kaila has been in possession of the land in dispute admittedly for the last 55 years. His long possession cannot be treated to be that of a mortgagee merely on conjectures and surmises. We are therefore of the opinion that the decisions of the lower courts are clearly untenable inasmuch as they are based on no legal evidence. We would, therefore, allow this revision, set aside the orders of the lower courts and direct that the objection raised by Pema as regards the creation of the mortgage shall stand rejected throughout.