Mangala v. Prabhu Singh — 1972 DIGILAW 262 (RAJ)

K.S. Ujwal, Members—Aggrievd with the Revenue Appellate Authoritys judgment and decree dated 31st December, 1970, the appellant, who was plaintiff in the court of first instance and respondent before the learned Revenue Appellate Authority, Bikaner, has on 26-2-1971 filed this appeal under sec. 224 of the Rajasthan Tenancy Act. Appellant filed a suit under sec. 183 of the Rajasthan Tenancy Act read with sec. 43 of the Act for fields number 10 and 251 of village Rasaliyawas, Tehsil, Merta, measuring respectively 14 bighas 12 biswas and 25 bighas and 11 biswas and eviction of the respondent-defendant Prabhu Singh. The plaint contained the allegation that the fields, which form the subject matter of suit, were mortgaged with usufruct by the appellant-plaintiff with respondent-defendant for a sum of Rs. 389/- with the stipulation that the plaintiff would not be required to pay the Hasil for the fields. It was further stipulated, in this alleged mortgage according to the plaintiff, that he can at his will redeem the fields by returning the mortgage amount of Rs. 329/- to the defendant who was bound, it is alleged, to return the possession to the plaintiff forthwith. The plaintiff has further said that he delivered the Parcha Lagan of the fields to the defendant at the time of the mortgage. A little before instituting the suit for redemption, the plaintiff notified to the defendant his intention of redeeming the fields and paying the mortgage amount. The defendant allegedly paid no heed and the plaintiff on 3-7-1959, despatched a notice to the defendant by registered post, asking him to accept the mortgage amount and transfer the possession of the fields. Defeadant refused to accept the notice. The plaintiff thereupon filed the suit with the contention that the fields had been mortgaged with usufruct on the conditions mentioned above and that a redemption decree directing the defendant to return the possession of the fields on payment of the mortgage amount by the plaintiff, may be passed. Defendant in his written statement denied the mortgage and also denied the right and title of the plaintiff. On the pleadings of the parties, six issues were framed and after recording evidence adduced by the parties and considering their documentary evidence, the learned S. D. O., Merta, in whose court the suit had been instituted, decreed on 27-3-1968 that the defendant shall accept a sum of Rs. On the pleadings of the parties, six issues were framed and after recording evidence adduced by the parties and considering their documentary evidence, the learned S. D. O., Merta, in whose court the suit had been instituted, decreed on 27-3-1968 that the defendant shall accept a sum of Rs. 329/-from the plaintiff and handover the possession of fields number 10 and 251 to the plaintiff. It was further decreed that the defendant shall return the Parcha Lagan to the plaintiff and the parties shall bear their respective costs. Aggrieved by the learned S.D.Os order mentioned in the preceding paragraph, the defendant-respondent Prabhu Singh filed an appeal in the court of the learned Revenue Appellate Authority, Bikaner, who by his judgment, and decree dated 31-12-1970, accepted the appeal and remanded the case to the court of first instance for trying issue number 1 and deciding it afresh. It appears that one of the important points urged by the defendants side before the learned Revenue Appellate Authority related to the admissibility of the evidence adduced by the plaintiff to prove the mortgage on which his suit Was based. Apparently considering the defendants objection to the acceptance of the secondary evidence as going to the root of the question, the learned Revenue Appellate Authority examined it in some detail and accepted the contention of the learned counsel for the defendant, who was appellant before him, that this secondary evidence was not admissible. He further held that minus secondary evidence, which he held inadmissible, there was no evidence, to decide the points at issue and, therefore, he remanded the case for retrying and hearing issue number 1 and deciding issue number 5 on the basis of his fresh decision on issue number 1. He further held that minus secondary evidence, which he held inadmissible, there was no evidence, to decide the points at issue and, therefore, he remanded the case for retrying and hearing issue number 1 and deciding issue number 5 on the basis of his fresh decision on issue number 1. Revenue Appellate Authoritys judgment and decree have been challenged in this second appeal inter-alia on the ground that firstly the Revenue Appellate Authoritys judgment is bad in law because it does not fulfil the requirements of Rule 31 of Order 41; secondly that the learned Revenue Appellate Authority erred in rejecting the secondary evidence adduced by the plaintiff to prove the alleged mortgage, because the law permits the use of secondary evidence of an unstamped and unregistered mortgage deed for collateral purposes and in the circumstances of the present case, the factum of mortgage and mortgage amount are a collateral purpose; thirdly that the Revenue Appellate Authoritys powers of remanding the case are limited by the provision of law and these provisions did not authorise the learned Revenue Appellate Authority to order,in the circumstances of the case,a remand to the court of first instance for trying issue number 1 over again and deciding issue number 1 and 5; fourthly that the question of admissibility of secondary evidence of the mortgage had been decided by the Revenue Appellate Authority earlier by his judgment dated 31-12-70 which had become final as against the defendant because the judgment was not challenged by way of cross objections or by an appeal and revision and; fifthly and finally that the plaintiff has succeeded in proving himself a khatedar tenant of the lands in dispute by producing the Khatoni Bundobast and earlier evidence of being in cultivatory possession of the lands in dispute in Samvat 2210 and 2011 and was, therefore, entitled to the decree prayed for. We have heard the learned counsel for the parties and examined the record. Rule 31 of Order 41 makes it obligatory on the appellate court to state in its judgment —(1) the points for determination, (2) the decision thereon, (3) the reasons for the decision and (4) where the decree appealed for is reversed or varied, the relief to which the appellant is entitled. Rule 31 of Order 41 makes it obligatory on the appellate court to state in its judgment —(1) the points for determination, (2) the decision thereon, (3) the reasons for the decision and (4) where the decree appealed for is reversed or varied, the relief to which the appellant is entitled. It was contended by the learned counsel for the appellant that while the court of first instance set out the issues, discussed the evidence on record decided each issue and then recorded its judgment, the learned Revenue Appellate Authority did not apply his mind to all the issues and has not complied with the requirements of rule 31. It is of course patent that the learned Revenue Appellate Authority has not decided all the issues; but that in itself is not sufficient to establish the plea that the requirements of Rule 31 have not been met. We are aware of the fact the Rule 31 is mandatory, but there is no gainsaying the fact that it does not make it obligatory on the first appellate court to give its decision on all the issues. Rule 31 requires the appellate court to state the points for determination and the decision thereon. The impugned judgment would not be assailable under Rule 31 if the points which were to be determined by the appellate court have been staled and the decision thereon recorded after giving the reasons for such decision. From learned Revenue Appellate Authoritys judgment it appears that the point which came up before him for determination was the question of the admissibility of secondary evidence about the mortgage deed. This was an important question of law going to the every root of the case, because it would appear that the decision of the court of first instance was based upon the secondary evidence led for establishing the mortgage. The decision of the case depended, in the opinion of the Revenue Appellate Authority, on the decision of this question which went to the root of the dispute and hence the important point for determination in the case was whether the secondary evidence led by the plaintiff was or was not admissible. The decision of the case depended, in the opinion of the Revenue Appellate Authority, on the decision of this question which went to the root of the dispute and hence the important point for determination in the case was whether the secondary evidence led by the plaintiff was or was not admissible. The learned Revenue Appellate Authority has in his judgment stated that the point for the determination was the admissibility of this evidence and has after giving such reasons as weighed with him, recorded the decision that the court of first instance erred in deciding issues number 3 and 4 in favour of the plaintiff This view was adopted by the learned Revenue Appellate Authority for deciding the two issues namely 3 and 4 against the plaintiff. The learned Revenue Appellate Authority has thus, in our opinion, complied with the requirements of Rule 31 of Order 41. In connection with the above grounds of objection, the learned counsel for the plaintiff cited the authority of the decision given by this Board in the case of Narain Singh vs. Virbal reported as 1970 RRD 379 and also cited 1961 RLW 627. On examining the impugned judgment keeping the above circumstances in view in the light of the afore side authority, we find that the learned Revenue Appellate Authoritys decision substantially complies with the requirements of Rule 31 and the argument that the appeal must be accepted and the Revenue Appellate Authoritys decision should be set aside because it does not meet the requirements of Rule 31 of Order 41, has to be rejected. In this connection it may further be recorded that the failure of the appellate court to comply with the requirements of Rule 31 would not in itself suffice for accepting the appeal, because the law no where provides for penalising the respondent for the failure of the court which decided a matter in his favour to meet the requirements of the above rule and the acceptance of an appeal merely because the requirements of Rule 31 are not fulfilled, would for all intents and purposes, amount to penalising the respondent. In a case where the requirements of Rule 31 are not fulfilled and it is felt that justice has not been done on account of the failure of the first appellate court to come to grips with the dispute between the parties, the most that can be done is to remand the case to the first appellate court. The plaintiff came to the courts with the plea that the lands in dispute had been mortgaged with usufruct with the defendant in Samvat 2012 for Rs. 329/- with the stipulation that the plaintiff would not be liable for interest and the defendants would not be liable for the rent and that the defendants shall transfer the possession of the lands to the plaintiff whenever the plaintiff returns the mortgage amount. The plaintiff sought a decree to the effect that the defendant be directed to handover the possession of the lands in dispute to the plaintiff after taking a sum of Rs. 329/-. The mortgage even according to the plaintiff was effected by an instrument written on paper which was perhaps not stamped. The document was not registered. The plaintiff tried to prove the factum of mortgage by oral evidence and the learned SDO considered this evidence sufficient to prove the mortgage. The learned Revenue Appellate Authority held that secondary evidence cannot in the circumstances of the case be adduced for proving the plaintiffs case that these lands were mortgaged with the defendant. The appellants side has argued that the law permits proving of the factum of mortgage or sale by secondary oral evidence where the mortgage deed is in the possession of the opposite party and such other opposite party fails to give its discovery. The learned counsel for the appellant felt that this view is supported by the decision reported as 1959 RRD 64, 1961 RRD 171, AIR 1958 Rajasthan 102 and AIR 1960 Rajasthan I. The learned counsel for the respondent on the other hand said that none of these decisions is an authority for the view that in the circumstances of the case, secondary evidence to prove the factum of mortgage, is admissible. He has relied upon 1969 RRD 114 which in his opinion overrules 1959 RRD 64 and 1961 RRD 171. We have gone through these rulings. He has relied upon 1969 RRD 114 which in his opinion overrules 1959 RRD 64 and 1961 RRD 171. We have gone through these rulings. In the case of Bheronlal vs. Pyaralal reported as 1959 RRD 64 the learned Members held that the inadmissibility of an unstamped document or an unregistered document or of secondary evidence of such documents, does not prevent the admissibility of other evidence to prove the relationship of mortgagor and mortgagee, the factum of mortgage, consideration for mortgage and the date of the mortgage as well. Similarly in 1961 RRD 171. It was held that an unregistered sale deed is admissible for proving the nature and character of possession. The 1959 decision of the Board is based upon the decision of our High Court in the case of Panchia vs. Harnath reported as 1958 RLW 457. On the other hand we have the decision] of our High Court in the case of Hansia vs. Bakhatawarlal reported as 1958 Rajasthan 102- Though the learned counsel for the appellant has relied on the last mentioned decision also, we do not see the justification for his view that this decision supports his case that secondary evidence can be adduced for proving the factum of mortgage. The High Court has in the case of Hansia vs. Bakhatawarlal enunciated the well established rule that where a mortgage is inadmissible in evidence in view of sec. 49 of the Registration Act, the proviso to that section cannot be invoked for using the unregistered document to show the nature of defendants possession when the suit is based on a mortgage deed and the prayer is for redemption of the mortgage property. In the case of Junjhar Singh vs. Prithvi Singh reported as 1969 RRD 114, it was held on the basis of the above mentioned case of Hansia vs. Bakhatawarlal (Hansias case is also reported as 1958 RLW 443) that an unregistered mortgage deed cannot be used in a suit for redemption to prove the mortgage, because it is not a case for collateral purpose. From all these decisions it can be gathered that in a suit for redemption of mortgage, the plaintiff cannot use an unregistered mortgage deed and, therefore, secondary evidence thereof to prove the mortgage and its terms to establish a case for redemption of mortgage. The decisions are based upon sec. From all these decisions it can be gathered that in a suit for redemption of mortgage, the plaintiff cannot use an unregistered mortgage deed and, therefore, secondary evidence thereof to prove the mortgage and its terms to establish a case for redemption of mortgage. The decisions are based upon sec. 49 of the Indian Registration Act and on a perusal of the proviso to the said section, we find that a document required by sec. 17 of the Indian Registration Act or by any provisions of the Transfer of Property Act to be registered, may be received as evidence of any collateral transaction not required to be effected by registered instrument. In other words an unregistered document would be admissible in evidence, if it can be shown that it is being tendered in evidence to prove a collateral transaction not required to be effected by registered instrument. The plaintiffs argument that secondary evidence of the mortgage deed executed by him that he wants it to be used for proving a collateral transaction not required to be effected by registered instrument. We have, therefore, to see whether in the circumstances of the case, secondary evidence is being tendered for proving the transaction affecting immovable property or merely for proving a collateral transaction. In the case of Hansia vs. Bakhatawarlal it has been held that in a suit for redemption based on an invalid mortgage, the use of the document is for the purpose of proving the mortgage and the registration law forbids such use. In other words in a suit for redemption there would be no justification for the statement that the unregistered instrument whereby the mortgage was created, is being tendered in evidence for a collateral purpose. It would not be admissible in evidence on account of the provisions of sec. 49 of the Registration Act and hence secondary evidence of the unregistered instrument would not be admissible. The Honble High Court has, however, in the above case further observed that "It would be a different thing if the plaintiff brought a suit for possession and his want was met by a plea of adverse possession; he can then use the unregistered document to show the natural of the defendants possession and prove that it was never adverse. The Honble High Court has, however, in the above case further observed that "It would be a different thing if the plaintiff brought a suit for possession and his want was met by a plea of adverse possession; he can then use the unregistered document to show the natural of the defendants possession and prove that it was never adverse. That would be using a document for a collateral transaction to meet the case of the defendant based on adverse possession." From the above observations, we are led to the conclusion that the determination of the question whether secondary evidence is being led for a collateral transaction and not for proving a transaction required to be effected by registered instrument, will depend upon the nature of suit and the circumstances of the case. The present suit was filed on 23-7-1959 and the plaint was under sec. 183 of the Rajasthan Tenancy Act. The plaint was subsequently amended so as to make this a suit under sec. 183 of the Rajasthan Tenancy Act read with sec. 43 of the Act. Sec. 183 provides for a suit for ejecting certain trespassers. A mortgagee becomes by efflux of time on account of the provisions of sec. 43 of the Rajasthan Tenancy Act a trespasser liable to ejectment in accordance with sub-sec. (1) of sec. 183. A suit under sec. 183 would, therefore, be a suit for possession notwithstanding the fact that the provisions of sec. 43 have also been invoked, because the provisions of sec. 43 are invoked not merely for establishing a right of redemption, but also for establishing that the mortgagees possession is that of a trespasser when his rights are extinguished by operation of law. The character of the suit will depend upon the intention of the plaintiff and such intention has to be gathered from his pleadings The fact that the suit was in the first instance filed under sec. 183 and the fact that, as discussed above, additional reference to sec. 43 does not change the character of the suit, leads to the conclusion that the plaintiffs suit is in effect for ejectment of the defendant and possession under sec. 183 of the Rajasthan Tenancy Act. The plaintiff has of course sought a decree directing the defendant to accept the mortgage amount of Rs. 329/- and return the possession of the fields. 183 of the Rajasthan Tenancy Act. The plaintiff has of course sought a decree directing the defendant to accept the mortgage amount of Rs. 329/- and return the possession of the fields. It can be said that this tantamount to a prayer for a decree for a redemption of the mortgage. The distinction between a suit for redemption and a suit for recovery of possession of immovable property mortgaged with another, is sometimes not very striking or substantial. On going through the decision of our High Court in the case of "Panchia vs. Harnath" "1958 RLW 457" we find that the Honble Judge has with approval quoted from the judgment of our High Court in the case of Ramchandra vs. Ramhans "1955 RLW 190" that— "there is no difference between a suit for possession containing a prayer for allowing the defendant such sums of money as he may be entitled to under the previous transactions, and for redemption on payment of the mortgage amount and that in reality a suit for redemption is nothing more than a suit for possession with the additional prayer for letting the defendant have his money due to him before he can be dispossessed of the property and if the defendant had acquired a mortgagees rights by prescription, he is entitled to contest a simple suit for possession, and the plaintiff would not be granted a decree for possession unless on condition that he pays to the defendant the money due on transaction." Similarly in the case of Hansia it has been observed that : "It is true that in some respects, a suit for possession and a suit for redemption are similar. But there are vital differences also. The differences arise on account of court fee and limitation. In these circumstances, it may not always be convenient to treat a suit for redemption as a suit for possession, though there may be cases in which this may be done. But there are vital differences also. The differences arise on account of court fee and limitation. In these circumstances, it may not always be convenient to treat a suit for redemption as a suit for possession, though there may be cases in which this may be done. This will depend upon all the facts of each case, but speaking generally where the suit is held on for redemption and no more, it should be dismissed and the plaintiff left to a remedy by a separate suit for possession." On examining the present case in the light of the observations of our High Court in the two judgments mentioned above, we can hold that from the pleadings it is manifestly a suit for possession containing a prayer for allowing the defendant a sum of Rs. 329/-. Being primarily a suit under sec. 183 of the Rajasthan Tenancy Act, it could have been treated as a suit for possession even if there were grounds for the view that it is a suit for redemption of a mortgage, because differences arising out of court fee and limitation which are important in civil suits, are not material in the instant case. The court fee prescribed by the schedule to the Rajasthan Tenancy Act for suits u/s. 183 is the same whether the suit is for the ejection of a mortgagee who holds over after the mortgage has been redeemed by operation of law, or any other trespasser and is 50 Np. and the prescribed period of limitation is also the same namely 12 years. We, therefore, hold after considering the character of this suit that it is in effect a suit for possession with payment and hence the manner in which the defendants came to have possession over this land, is collateral to the transaction of mortgage and sec. 49 of the Registration Act is no bar to the admissibility of evidence to prove the transaction by which the defendant acquired possession on these lands notwithstanding the fact that the alleged mortgage is said to have been effected by an unregistered instrument. The learned Revenue Appellate Authority was, therefore in error in refusing to consider the evidence adduced by the plaintiff to prove his contention that the defendants obtained possession as mortgagee and the mortgage stands redeemed by operation of law. The learned Revenue Appellate Authority was, therefore in error in refusing to consider the evidence adduced by the plaintiff to prove his contention that the defendants obtained possession as mortgagee and the mortgage stands redeemed by operation of law. The plaintiff pas examined the scribe of the document and Patwari Mooldan who says that the defendant furnished to the Patwari the date of the mortgage and admitted the fact that he was in possession as a mortgagee. The learned Revenue Appellate Authority has not examined this evidence and recorded his views. The first appellate court is the court of facts and it would not be, in our opinion, proper for us to examine the credit-worthiness of the evidence and decide whether the plaintiff has not succeeded in proving the fact he had to prove. We, therefore, consider it. proper to remand the case to the learned Revenue Appellate Authority for deciding the matter afresh considering evidence adduced by the parties. The learned counsel for the plaintiff had advanced elaborate arguments to show that the learned Revenue Appellate Authority exceeded his powers in ordering remand of the case. The law dose not give the appellate court the inherent powers of ordering a remand. The powers are circumscribed by the provisions of law and the learned counsel expressed the view that the relevant provisions of law did not authorise the learned Revenue Appellate Authority to order a remand in the circumstances of the case. We do not propose to go into the matter because we have decided to quash the learned Revenue Appellate Authoritys judgment and decree on other grounds. On the basis of our above decision regarding the admissibility of evidence to prove collateral transaction of the manner of acquisition by the defendant and the date on which such possession was acquired, we quash the judgment pronounced and decree given by the learned Revenue Appellate Authority on 31-12 1970 and order the remand of the case to the learned Revenue Appellate Authority concerned for deciding the first appeal afresh. The parties shall bear their respective costs in this Board.