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2009 DIGILAW 1931 (RAJ)

Sajjan Singh v. Kashi Lal

2009-09-04

GOPAL KRISHAN VYAS

body2009
Hon'ble VYAS, J.—In this second appeal, the appellant-defendant is challenging the judgment and decree dated 9.7.1993 passed by the Addl. District Judge, Bhilwara (Camp Shahpura) in Civil First Appeal No. 46/87, whereby, the learned first appellate Judge confirmed the judgment and decree dated 28.9.1987 passed by the Civil Judge, Shahpura in Civil Original Suit No. 6/83 whereby the learned trial Court decreed the suit of the respondent-plaintiffs and passed preliminary decree for redemption of mortgage. 2. Brief facts of the case are that respondent-plaintiffs Kashilal and Jagdish, both sons of Gokul Lal preferred suit for redemption of the mortgaged property with the averments that there are two nohara which are immovable property situated in village Phulia Khan which were originally owned and possessed by one Kalyanmal Choudhary. Said Kalyan Mal Choudhary mortgaged the property with predecessors of one Mangilal Bohra in the year 1890 for a consideration of Rs. 1200 (Chittora), equivalent to Rs. 945/- of the present Indian currency and handed over possession of the said nohara to the mortgagee. Thereafter, Mangilal Bohra further sub-mortgaged the same property in favour of Sua Lal and Madho Lal, adoptive father and elder father of appellant Sajjan Singh on 4.11.1946 for a sum of Rs. 1,000/- and possession of the mortgaged property was handed over to the sub-mortgagee. After the death of the sub-mortgagee, the property came in succession and possession of the present appellant-defendant Sajjan Singh. 3. The plaintiffs stated in the plaint that Prem Singh Choudhary, the only successor of the former owner Kalyan Mal Choudhary, sold the property to the plaintiffs for a consideration of Rs. 3,500/- with mortgage liability. The plaintiffs, therefore, preferred suit for redemption of the mortgaged property against the appellant as well as some of the successors of alleged mortgagee Smt. Sohan Devi and Bhanwar Lal, wife and son of late Mangi Lal Bohra. Further, it is stated in the plaint that the plaintiffs have already paid Rs. 1,000/- to the mortgagee as amount of maintenance and interest to the successors of the mortgagee and they agreed by an agreement dated 25.2.1976 and authorised the plaintiffs to redeem the property from sub-mortgagee. 4. In the suit, written-statement was filed by the appellant-defendant and it is disputed that neither the property in question is owned by Kalyan Mal Choudhary nor mortgaged but is owned and possessed by his predecessors for last hundred years. 4. In the suit, written-statement was filed by the appellant-defendant and it is disputed that neither the property in question is owned by Kalyan Mal Choudhary nor mortgaged but is owned and possessed by his predecessors for last hundred years. In the alternative, appellant-defendant pleaded that he made expenditure of Rs. 6927.50 ps for the maintenance and improvement of the said property and, in case, the redemption is allowed, the plaintiffs are liable to pay that amount also. 5. Other defendants/successors of mortgagee Mangi Lal remained absent inspite of service of notice upon them and the suit proceeded ex parte as against absenting defendants. The trial Court, upon the pleadings of the parties, framed following issues: ^^1- vk;k okni= ds [k.M la- 1 esa of.kZr tk;nkn dY;k.key ds LokfeRo dh gS 2- vk;k mijksDr tk;nkn dks izseflag pkS/kjh ds iwoZt dY;k.key us laor~ 1890 esa ekaxhyky cksgjk ds ;gka fxjoh j[kk\ 3- vk;k mijksDr tk;nkn dks ekaxhyky us 4-11-46 dks lTtu flag ds firk o dkdk lqokyky o ek/kks yky ds ;gka jgu fcy dCtk j[kk\ 4- vk;k mijksDr tk;nkn dks 25-2-76 dks ekaxhyky ds okfjl lksguh nsoh o Hkaojyky ls le>kSrk djrs gq, lTtu flag ls tk;nkn Qd dqy jgu dk vf/kdkj izkIr fd;k ,oa bdjkjukek rgjhj djk;k\ ;fn gksa rks mldk nkos ij izHkko\ 5- vk;k izfr- us 6927-50 :i;s bl lEifr ij [kpZ fd, gSa vkSj bl jde dks og oknh ls ikus dk vf/kdkjh gS\ 6- vk;k 'kkgiqjk fj;klr ds dkuwuh jftLVªh dh /kkjk 24 ds vUrxZr nko pyus ;ksX; ugha gS\ 7- vk;k okni= ds [kaM la-6 esa of.kZr bdjkjukek vne vn[kky 'kgknr gS\ 8- vk;k ekaxhyky cksgjk ds vU; okfjlku bdjkjukesa esa u gksus ds dkj.k bdjkjukek ls izfroknh lTtuflag ck/; ugha gS\ 9- vk;k ekaxhyky ds vU; okfjlku eqdnesa esa vko';d i{kdkj gS\ 10- vk;k oknh nkos ds en ua- 5 ds vuqlkj jgu ls ckxqjkLr djkus ds vf/kdkjh gSa\ 11- vuqrks"k ¼lgk;rk½\ 6. After recording evidence of the parties, the trial Court decided issues No. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 in favour of the respondent-plaintiffs and issue No. 5 partially in favour of the appellant-defendant. After recording evidence of the parties, the trial Court decided issues No. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 in favour of the respondent-plaintiffs and issue No. 5 partially in favour of the appellant-defendant. On the basis of the adjudication made upon the issues framed by the trial Court, it passed a preliminary decree in favour of the plaintiffs to the effect that the plaintiffs are entitled to redemption of the property in dispute subject to payment of Rs. 1,000/- and Rs. 4,500/- to appellant-defendant within six months and, thereupon, defendant Sajjan Singh was to hand over the property to the mortgagee. 7. Being aggrieved by the judgment and decree, the appellant-defendant preferred appeal to the District Judge, Bhilwara which was transferred to the Addl. District Judge, Bhilwara (Camp Shahpura) who finally decided the appeal on 9.1.1993, by which, the learned lower appellate Court affirmed the judgment and decree of the trial Court and dismissed the appeal filed by the appellant-defendant. The appellant-defendant has preferred the instant second appeal against the judgments of the Court below. 8. While admitting this second appeal on 19.7.1994, following substantial questions of law were framed: "1. Whether in the facts and circumstances of the case, the trial Court was right in holding that mortgage of the year 1890 is proved? 2. Whether the suit as it is filed is within limitation? 9. Learned counsel for the appellant-defendant vehemently argued that the judgments and decree of the Courts below are contrary to law and based upon surmises and conjectures. The decision of the trial Court upon the question of law is prima facie wrong because suit was filed after 143 years counting from Vikram Samwat 1890, therefore, the suit was to be thrown only on the ground of limitation. Further, it is argued that the plaintiffs utterly failed to prove the execution of the alleged document and even its date etc. and failed to produce or call for the document itself. Further, it is argued that the plaintiffs utterly failed to prove the execution of the alleged document and even its date etc. and failed to produce or call for the document itself. According to learned counsel for the appellant, learned lower Court has wrongly allowed the plaintiffs to submit secondary evidence to prove the alleged mortgage deed of the year 1890 without complying with or observing the provisions of Section 66 of the Evidence Act as no notice to produce the original document of the alleged mortgage of the year 1890 was given to the said successors of the mortgagee inspite of there being agreement with the plaintiffs and as such permission to lead secondary evidence is against the principles of law. Learned counsel for the appellant further argued that the plaintiff-respondents have miserably failed to prove their case and no document with regard to mortgage of the year 1890 is produced on record. 10. Learned counsel for the appellant vehemently contended that the trial Court filed to take notice of the fact that according to version contained in alleged sub-mortgage deed, Ex. 1, no original paper was supplied to the sub-mortgagee but only copies were to be supplied and as such the notice to the alleged successor of the sub-mortgagee, appellant-defendant Sajjan Singh to produce the original mortgage deed is against the requirement of Section 66 of the Evidence Act. Further, it is argued that the learned Lower Courts erred in considering and analyzing the oral evidence of the plaintiffs regarding the proof of the alleged mortgage of the year 1890 wherein the Court held that the probabilities of truth are in favour of the plaintiffs. Before the trial Court necessary documents were not placed on record. 11. The main crux of the argument of learned counsel for the appellant is that the learned trial Court has committed an error while adjudicating the matter on the premises that plaintiffs have proved their case that the property in question was mortgaged in the year 1890. In fact, no documentary or oral evidence was led to prove that any mortgage was made in the year 1890, therefore, the learned trial Court incorrectly decided the suit in favour of the respondent-plaintiffs. In fact, no documentary or oral evidence was led to prove that any mortgage was made in the year 1890, therefore, the learned trial Court incorrectly decided the suit in favour of the respondent-plaintiffs. So also, the learned trial Court has committed an error while relying upon the oral evidence of PW.3 Prem Singh who has stated in his evidence that his knowledge is based upon hearsay and he has no personal knowledge relating to the title of the property in dispute. According to the appellant, learned appellate Court also misdirected itself and wrongly dismissed the appeal because there is evidence to prove that no mortgage was made with regard to property in question in the 1890. The facturn of sub-mortgage has also not been proved because there is no evidence of execution and attestation on the record proving the signature of Mangilal, said executant of the sub-mortgage deed. Learned trial Court erred in not drawing adverse inference against the plaintiffs because the plaintiffs have failed to make sufficient evidence before the Court, therefore, adjudication made by the trial Court on the basis of irrelevant oral evidence is contrary to law because the finding is based upon presumptions and irrelevant facts. 12. Learned counsel for the appellant-defendant further argued that the oral evidence brought on record is not worthy of credence for proving the document because neither the executant nor the scribe proved the document before the Court. Moreover, filing of the certified copy is not sufficient to prove the correctness of the said document. In this matter, according to the learned counsel for the appellant, learned lower Court while deciding issue No. 1 has taken incorrect and contradictory view about the question of title and held that either Kalyanmal or Sajjan Singh is owner of the property in dispute and when Sajjan Singh failed to produce the title deed etc. the property was of Kalyan Mal even though no title-deed was produced on behalf of or in support of Kalyan Mal's ownership. Therefore, the judgment rendered by the learned trial Court suffers from illegality. It is, therefore, prayer that both the judgment which are under challenge may be quashed and set aside. 13. None is present on behalf of the respondents. 14. I have perused the record, so also, the impugned judgments in this second appeal. 15. Therefore, the judgment rendered by the learned trial Court suffers from illegality. It is, therefore, prayer that both the judgment which are under challenge may be quashed and set aside. 13. None is present on behalf of the respondents. 14. I have perused the record, so also, the impugned judgments in this second appeal. 15. At the time of admission, two substantial question of law were framed, one, with regard to proving the mortgage of the year 1890 by the plaintiff; and second, with regard to limitation for filing the suit. 16. For the first question, it is expressly clear from the evidence that no date and month of the alleged mortgage of the year 1890 is on record in evidence. The mortgage document of the year 1890 was not produced on record, therefore, in the absence of the pleadings, it is obvious that no finding can be given that the plaintiff has proved the case for the purpose of proving the mortgage document which is alleged to be executed in the year 1890. It is also basic concept of law that it is always upon the plaintiff to prove that the property sought to be redeemed was mortgaged by virtue of a mortgage-deed of a specific date as he has alleged in the plaint and, if he fails to prove, then, there is no question of giving the finding that the plaintiff has proved the said document of mortgage. 17. In this case, a sub-mortgage deed, Ex. 1 has been placed on record. That can not be treated to be proved on the ground that it is exhibited because mere production and exhibiting of the document before the Court it cannot be held that the document has been proved. The contents of the document are required to be proved either by the executor or by evidence and, till proving the contents of the documents by cogent evidence, it cannot be presumed that the document is proved. 18. The above proposition is supported by the judgment reported in 2004 (1) WLC 114 (Civil), Narmada Devi Gupta vs. Brijendra Kumar Jayaswal. In the judgment reported in AIR 1971 SC 1865 it has been held by the Hon'ble Supreme Court that with a view to proving the document, contents of the document are required to be proved and mere making an exhibit does not dispense with the necessity to prove the document. In the judgment reported in AIR 1971 SC 1865 it has been held by the Hon'ble Supreme Court that with a view to proving the document, contents of the document are required to be proved and mere making an exhibit does not dispense with the necessity to prove the document. In this view of the matter, the oral evidence of the original mortgage given in this case is not admissible because it is hit by Section 91 of the Evidence Act. Hon'ble Supreme Court, in yet another judgments, reported in 2003(3) AIR SCW 2425, held that Section 91 of the Evidence Act merely prohibits proving contents of a document otherwise than by document itself. Para 13 of the said judgment runs as follows: "Section 91 relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known some times as the "best evidence rule." It is in reality declaring a doctrine of the substantive law, namely, in the case of a written contract, that of all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it. It has been best described by Wigmore stating that the rule is in no sense a rule of evidence but a rule of substantive law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. It does not concern a probative mental process-the process of believing one fact on the faith of another. What the rule does is to declare that certain kinds of facts are legally ineffective in the substantive law; and this of course (like any other ruling of substantive law) results in forbidding the fact to be proved at all. But this prohibition of proving it is merely that drarnatic aspect of the process of applying the rule of substantive law. But this prohibition of proving it is merely that drarnatic aspect of the process of applying the rule of substantive law. When a thing is not to be proved at all the rule of prohibition does not become a rule of evidence merely because it comes into play when the counsel offers to "prove" it or "give evidence" of it; otherwise, any rule of law whatever might reduced to a rule of evidence. It would become the legitimate progeny of the law of evidence. For the purpose of specific varieties of jural effect-sale, contract etc. there are specific requirements varying according to the subject. On the contrary there are also certain fundamental elements common to all and capable of being generalized. Every jural act may have been following four elements: (a) the enaction or creation of the act. (b) its integration or embodiment in a single memorial when desired; (c) its solemnization or fulfillment of the prescribed forms, if any; and (d) the interpretation or application of the act to the external objects affected by it. The first and fourth are necessarily involved in every jural act, and second and third may or may not become practically important, but are always possible elements." 19. In this case, it is also worthwhile to observed that oral evidence of the original mortgage deed is not admissible because, as per the case of the plaintiff, the deed was unregistered, therefore, being unregistered document, it is not admissible on the basis of oral evidence. It is also basic concept of law that no secondary evidence can be given to a document which itself is inadmissible in evidence. In this case, the statements of witnesses about the document are not trustworthy because they had not read the document, therefore, their oral statements cannot be treated to be secondary evidence. Hence, the finding given by the Courts below with regard to treating the document mortgage deed to be proved is totally contrary to law. 20. In this case, admittedly the mortgage deed of the year 1890 is not produced on record. Only Ex. Hence, the finding given by the Courts below with regard to treating the document mortgage deed to be proved is totally contrary to law. 20. In this case, admittedly the mortgage deed of the year 1890 is not produced on record. Only Ex. 1, sub-mortgage deed is produced on record and on the basis of assertion so made in the said sub-mortgage deed of assertion so made in the said sub-mortgage deed with regard to earlier mortgage presumption has been drawn by the Courts below that plaintiff has proved the case but, in fact, admittedly the so-called mortgage-deed of the year 1890 alleged to have been executed by Kalyan Mal Chaudhary is not produced on record. In this view of the matter, the finding of the learned trial Court with regard to the fact that the plaintiff has proved the case that property in question was initially mortgaged in the year 1890 cannot be treated to have been proved. The first appellate Court ought to have taken adverse inference against the plaintiff-respondent because admittedly no document of the original mortgage was produced on record. Further, no bahi of Mangi Lal was produced before the trial Court. In this view of the matter, it can very well be said that the plaintiff has failed to prove the basic ground that the mortgage-deed was executed in the year 1890 by one Kalyan Mal Chaudhary. Therefore, question No. 1 with regard to mortgage-deed of the year 1890 is proved or not is hereby answered in negative. In the opinion of the Court, the plaintiff has failed to prove his case because the bone of contention in the plaint was that initially a mortgage deed was executed for the property in question in the year 1890 but that document is not produced before the Court and only on the basis of oral evidence, the learned trial Court gave its finding which is not permissible in law. therefore, the answer to question No. 1 is in negative and against the plaintiff. 21. therefore, the answer to question No. 1 is in negative and against the plaintiff. 21. With regard to question No. 2, whether the suit is filed within limitation or not, it is very relevant to observe that question No. 2 although was not in issue before the trial Court, in appeal, an argument was raised by the appellant that the so called mortgage of the year 1890 is not proved, therefore, the question of limitation goes against the plaintiff-respondent because, in the Limitation Act, 60 years' limitation is provided for redemption of mortgage. In this case, appeal has been filed with regard to the mortgage deed which is said to be executed in the year 1890. Once, the document itself is not proved, then, the finding of the learned lower appellate Court with regard to treating the suit within limitation also does against the plaintiff-respondent because, first of all, the basic ground of redemption of mortgage is not existence and mortgage which is said to be executed by Kalyan Mal Chaudhary is not proved by any cogent evidence, then, the question of limitation becomes redundant. It is primary duty of the plaintiff to prove before the Court that the property in question stood under mortgage by a written document so executed and that fact, that too, after 7-8 decades is sought to be proved only on the basis of oral evidence, it cannot be presumed that any document which is said to be mortgage-deed was executed in the year 1890. The learned trial Court completely ignored that no document as alleged to have been executed in the year 1890 was produced before the Court and only on the basis of presumption the suit was decreed and appellate Court, while dismissing the appeal, affirmed the finding arrived at by the trial Court. Therefore, the finding of the Courts below on issues No. 1 and 2 is totally perverse and based upon presumption which is not permissible under the law. 22. As a result of the fore-going discussion, this second appeal is allowed. Judgment and decree dated 9.7.1993 passed by the Addl. District Judge, Bhilwara (Camp Shahpura) in Civil First Appeal No. 46/87 as well as judgment and decree dated 28.9.1987 passed by the Civil Judge, Shahpura in Civil Original Suit No. 6/83 are set aside.