JUDGMENT : The Second Appeal has been filed by the defendants-appellants against lower appellate court's judgment and decree dated 03.04.2007 passed by the learned Additional District Judge, Fast Track Court-II, Munger in Munsifi Title Appeal No. 02 of 1998 allowing the appeal and reversing the judgment and decree dated 16.12.1997 passed by learned Munsif-II, Munger in Title Suit No. 59 of 1986 by which suit of the plaintiffs-respondents was dismissed. 2. On 16.02.2010, the following Substantial Questions of Law were formulated while admitting the appeal:- (I). Whether the learned court of appeal below, while reversing the judgment and decree of the trial court, was justified in decreeing the suit and claim of the plaintiffs for recovery of possession only without any relief sought with regard to declaration of title or redemption of mortgage of 1920? (II). Whether the suit and claim of the plaintiffs was barred under proviso (2) Section 34 of the Specific Relief Act, 1963? (III). Whether the learned court of appeal below rightly put onus on the defendants-Ist party to disprove the relationship of the plaintiffs with mortgagors? 3. The respondents-Ist set/plaintiffs filed Title Suit No. 59 of 1986 for recovery of possession of land mentioned in Schedule III of the plaint area of which was 2 Bigha 10 Kattha and 5 dhurs of Khata No. 95, Plot No. 488 as per the boundary with mesne profit from the date of institution of the suit with a direction to defendants-appellants to put plaintiffs in possession of the Schedule III land failing which the plaintiffs will be put in possession through the process of the court by evicting the defendants or any person on their behalf. 4. The case of the plaintiffs', is that, one Mangar Ram, son of Narayan Ram died prior to survey of 1908, leaving behind his two sons, namely, Sevak Ram and Bhola Ram. Plaintiffs are descendants of Bhola Ram and Sevak Ram was elder brother of Bhola Ram. Hence, in cadestal survey Khatiyan name was recorded in favour of Sevak Ram. Sevak Ram died issueless in the state of jointness leaving his widow, Lachho Kaharin who executed usufructuary mortgage (sudbarna) of land described in Schedule II of the plaint on 02.12.1920 of Khata No. 95, Plot No. 488, area 2.47 acres in favour of Fulo Ram ancestor of defendant-Ist party(appellants). Lachho Kaharin also died in state of jointness with plaintiffs the only heirs. Lachho Kaharin also died in state of jointness with plaintiffs the only heirs. The due date of payment of the mortgage money was stipulated till 1337 fasli i.e. 1930. It was further stipulated that if the mortgagor failed to pay the mortgagee by the due date fixed, the sudbarna will continue till redemption. It is further contended that Mostt. Lachho Kaharin died in the state of jointness with Sibu Ram, who performed the agni kaaj and saradh of his grandmother Mostt. Lachho Kaharin. The plaintiffs succeeded to the joint property left behind by Sevak Ram and Bhola Ram and late Bhaglu Ram. Since the plaintiffs are the heirs of Sevak Ram and therefore, they have got a right to redeem the sudbarna deed dated 02.12.1920. It is further contended that the plaintiff no. 1 filed Miscellaneous Case No. 37 of 1968 under Section 83 of Transfer of Property Act in the court of Munsif-II, Munger, and deposited the sudbarna money in the court. The notice of the said deposit was served upon Fulo Ram-mortgagee. On receipt of the notice, Fulo Ram appeared and filed objection with false and incorrect allegations, but the case was disposed of without any adjudication due to fraud committed upon the court by late Fulo Ram and others. Fulo Ram ancestor of the defendant-Ist party instead of withdrawing sudbarna money and even after giving possession of the sudbarna land, he created some papers without the knowledge of the plaintiffs. It is contended that Fulo Ram taking advantage of his possession as mortgagee fraudulently got his name mutated in the office of State of Bihar in respect of 2 Bigha 10 Kattha and 5 dhurs of land out of the sudbarna land in 1975 detailed in Schedule III of the plaint. Fulo Ram has not acquired any title to the same and Fulo Ram and his heirs are trustees and mortgagee. On receipt of notice under Section 83 of the Transfer of Property Act, Fulo Ram has given possession of the land detailed in Schedule 1 of the plaint but the defendants dispossessed the plaintiffs from the land detailed in Schedule III of the plaint in the month of August 1980. 5. On summons, the contesting defendants-Ist party appeared and filed their written statement wherein they contended that the suit as framed is not maintainable. The plaintiffs have got no cause of action. 5. On summons, the contesting defendants-Ist party appeared and filed their written statement wherein they contended that the suit as framed is not maintainable. The plaintiffs have got no cause of action. The suit is barred by law of limitation. Further, the case of the defendants-Ist party is that genealogy given by the plaintiffs are false and imaginary. Mangar Ram had only one son, namely, Sevak Ram. Mangar Ram had a brother Lalji Ram. It is contended that Bhola Ram was not a blood relative of Sevak Ram or Lachho Kaharin. It is contended that Khata No. 95, Plot No. 488 was exclusive property of Sevak Ram and he had exclusive title and possession. It is denied that Sevak Ram was recorded in Khatiyan representing the joint family and after his death his widow Mostt. Lachho Kaharin came in possession and she gave the land in sudbarna to the descendants of Chulahi Ram by a registered deed dated 02.12.1920 for Rs. 250 in the name of Fulo Ram. It is vehemently submitted that the plaintiffs are not heirs of Sevak Ram and so they had no right to redeem and the said right had been barred by limitation by non-filing of the suit by the end of December, 1970 and sudbarna had not been redeemed and the defendants-Ist party became absolute owner. It is further denied that Lachho Kaharin was the representative of the family of the plaintiffs and she executed sudbarna in that capacity. It is wrong to say that Lachho Kaharin died in jointness with Bhaglu Ram, who performed her sharad and succeeded in joint family property. It is also wrong to say that on receipt of notice under Section 83 of the Transfer of Property Act, Fulo Ram had given possession of the sudbarna land. The defendants further denied that defendants dispossessed the plaintiffs from the part of sudbarna land mentioned in Schedule III of the plaint. So plaintiffs are not entitled to get any relief. 6. The trial court on the basis of evidence adduced by the parties and materials on record has held that as per Section 50 of the Evidence Act with regard to the existence of any relationship, opinion of the family members as well as of any person, who has special means of knowledge on the subject is relevant. 6. The trial court on the basis of evidence adduced by the parties and materials on record has held that as per Section 50 of the Evidence Act with regard to the existence of any relationship, opinion of the family members as well as of any person, who has special means of knowledge on the subject is relevant. On examination of all plaintiffs witnesses, the court concluded that most of the witnesses examined by the plaintiffs were less than 40 years and even plaintiffs were about 32 years old. They did not state in their evidences the basis of special means of knowledge so as to attract under Section 50 of the Evidence Act. They have not mentioned that they have learnt about the question of relationship from any dead person. So, their evidences are not admissible under Section 32(5) of the Evidence Act. They have not expressed the conduct as per evidence admissible under Section 50 of the Evidence Act. It has further held that Ext.-C which is certified copy of the petition dated 02.07.1968 filed by original plaintiff Sibu Ram in Miscellaneous Case No. 37 of 1968 and it appears that Sibu Ram had filed the petition that he has got no right to make deposit as Lachho Kaharin is not related to him and he prayed for refund of the amount deposited in Miscellaneous Case No. 37 of 1968. Therefore, the learned trial court had held that plaintiffs failed to prove that they are related to Sevak Ram and also that Lachho Kaharin died in jointness with Bhaglu Ram. So far right to redemption of sudbharna deed (Mortgage deed) is concerned, the learned trial court discussed about Ext.-F (sudbharna deed) that on perusal of paragraph 4 of sudbharna deed, it appears that it is mentioned that nobody else had any interest and share in the property. Ext.-6 is the Khatiyan of the suit Khata in the name of Sevak Ram which shows that Sevak Ram had exclusive ownership of the suit land. Ext.-2 and Ext.-3 are not related with the Khata of the suit land. It has been held that the plaintiffs' plea is not tenable that defendant-Ist party committed fraud and they created some papers without knowledge of the plaintiffs. The original sudbharna deed had been filed from the custody of the defendant-Ist party. Ext.-2 and Ext.-3 are not related with the Khata of the suit land. It has been held that the plaintiffs' plea is not tenable that defendant-Ist party committed fraud and they created some papers without knowledge of the plaintiffs. The original sudbharna deed had been filed from the custody of the defendant-Ist party. If the sudbharna deed was redeemed, in that case the documents should have been in the custody of the plaintiffs with endorsement of payment thereon. It is apparent that defendants-Ist party has filed original sudbharna deed without endorsement of payment. Trial Court has held that Ext.-C, which is certified copy of petition dated 02.07.1968 of Sibu Ram in Miscellaneous Case No. 37 of 1968, is not false and fabricated papers and has mentioned that Sibu Ram had no right to make deposit as Lachho Kaharin is not related to Sibu Ram and it has further been held that sudbharna was not redeemed and the plaintiffs have no right to redeem the sudbharna deed dated 02.12.1920. The plaintiffs have also failed to prove that the plaintiffs are the heirs of Sevak Ram or Lachho Kaharin. Plaintiffs have failed to prove their right, title and interest over the suit land mentioned in Schedule III of the plaint. The plaintiffs have also failed to prove that remaining sudbharna land is still in their possession. It is contended in the plaint that on receipt of notice under Section 83 of Transfer of Property Act, Fulo Ram had given up the possession of sudbharna land, but in the month of August 1980, the defendants dispossessed the plaintiffs from the part of sudbharna land (Schedule III) while the defendants-Ist party denied that the defendants dispossessed the plaintiffs from the suit land. It has been contended that the plaintiffs never came in possession of any portion of sudbharna land. It appears that alleged cause of action arose in August 1980 but the plaintiffs have filed the suit in the year, 1986. After the alleged dis-possession of the plaintiffs, the plaintiffs didn't lodge any case against the dispossession which creates doubt over the version of the plaintiffs. So, the plaintiffs are not entitled for recovery of possession of Schedule 3 land mentioned in the plaint. On the basis of aforesaid finding, the trial court has dismissed the suit. 7. After the alleged dis-possession of the plaintiffs, the plaintiffs didn't lodge any case against the dispossession which creates doubt over the version of the plaintiffs. So, the plaintiffs are not entitled for recovery of possession of Schedule 3 land mentioned in the plaint. On the basis of aforesaid finding, the trial court has dismissed the suit. 7. Aggrieved by the judgment and decree dated 16.12.1997 passed in Title Suit No. 59 of 1986, the plaintiffs-respondents preferred title appeal before District Judge, Munger. 8. After hearing both the parties, the learned appellate court framed points for consideration and determination in the aforesaid appeal which is as follows:- (A). Whether deed of sudbarna dated 02.12.1920 create right, title and interest as an absolute owner to the defendants over the suit land and whether the plaintiffs are entitled to get relief for recovery of possession over the suit land mentioned in Schedule III of the plaint. 9. The learned appellate court after considering the evidence adduced by the parties and materials on record held that from perusal of Ext.-F there is recital regarding the heirs of Mostt. Lachho Kaharin wife of late Sevak Ram and there is nothing to show that Lachho Kaharin had absolute right, title and interest over the land in question at that time for execution of sudbarna deed. There is acceptance by the plaintiffs of execution of sudbarna deed by Lachho Kaharin but it doesn't create right, title, interest and possession of defendants and the defendants cannot claim the suit land on the basis of sudbarna deed. It has further been held that no steps had been taken on behalf of the defendants or their ancestors to get the land, in question, absolutely in their favour. Therefore, the defendants cannot claim the suit land as an absolute owner. The defendants have no absolute right over the Schedule III land and the plaintiffs have every right, title and interest to get the possession over the land mentioned in Schedule III of the plaint. On the basis of the documents as well as the oral evidence, the plaintiffs have right, title and interest over the suit land and are entitled to get relief for recovery of possession with respect to the land mentioned in Schedule III of the plaint. 10. Learned senior counsel Mr. On the basis of the documents as well as the oral evidence, the plaintiffs have right, title and interest over the suit land and are entitled to get relief for recovery of possession with respect to the land mentioned in Schedule III of the plaint. 10. Learned senior counsel Mr. Shashi Shekhar Divedi appearing for the appellants submits that the suit was field for recovery of possession with mesne profit over the suit land mentioned in Schedule III of the plaint. It is further submitted that no relief for declaration of title or redemption of mortgage of 1920 has been prayed and the said suit was barred under provision (2) of Section 34 of the Specific Relief Act. It is contended that learned lower appellate court erred in law holding that plaintiffs are legal heirs of Lachho Kaharin on the basis of inadmissible evidence and also submits that the suit is ex-facie barred by law of limitation as deed of mortagage (sudbarna deed) was executed on 02.12.1920 and the aforesaid suit for recovery of possession was filed in year 1986. Learned senior counsel further submitted that the suit is also barred by res judicata in view of dismissal of Miscellaneous Case No. 37 of 1968 filed by the plaintiffs (Sibu Ram) under Section 83 of the Transfer of Property Act with regard to the same land. The learned appellate court wrongly put onus upon defendants-appellants to prove right, title and interest over the suit land as it is for the plaintiffs to prove it. The appellate court has wrongly relied upon order sheet of Gram Panchayat (Ext.-2), rent receipt (Ext.-3) Certified copy of judgment of G.R. Case No. 353 of 1988, (Ext.-4) and Ext.-3 which are inadmissible in law. 11. On the other hand learned counsel for the plaintiffs-respondents submitted that the learned appellate court considered the evidence of PW-2, who was aged about 80 years on the date of deposition on 13.03.1992, PW-5 aged about 90 years on the date of deposition dated 21.05.1992, PW-9, Harku Yadav aged about 65 years on the date of deposition on 29.08.1995, PW-10 Jagdis Ram aged about 70 years on 28.11.1995, PW-11, Bhola Danti aged about 80 years on 02.01.1996, who were most competent witnesses to prove the relationship of plaintiffs with Sevak Ram. It is further contended that defendant-Ist party had not filed suit of foreclsoure under Order XXXIV (i) of the Civil Procedure Code. They cannot be an absolute owner of the mortgage land. The learned counsel for the respondents submitted that Miscellaneous Case No. 37 of 1968 under Section 83 of Transfer of Property Act has been filed in which the defendant-Ist party appeared and filed written statement (objection). The mortgage automatically stands redeemed and the defendant-Ist party left possession and gave possession of the mortgage land to the plaintiffs which stands proved from the facts that the suit of the plaintiffs was with respect to 2 Bigha 10 Kattha and 5 dhurs only instead of 2.47 acres. It is stated that the award made under the Panchayati Ext.-2 conclusively proved that mortgagee defendants-Ist party left possession of the suit property. Learned counsel for the respondents further submits that the documents field by the plaintiffs as well as oral evidence adduced by the plaintiffs who are fully competent witnesses and all of which have been relied by the learned court of appeal and the appellate court after full consideration allowed the appeal. 12. Considered the submissions made on behalf of parties and perused the impugned judgment and as well as substantial question of law having been framed by this Court in this appeal which is whether the learned court below while reversing the judgment and decree of trial court, was justified in decreeing the suit and claim of the plaintiffs for recovery of possession only without any relief sought with regard to declaration of title or the redemption of mortgage of 1920. 13. On the finding arrived above that the defendants-appellants entered into possession of the suit land as usufructuary mortgagee in 1920 by a registered deed dated 02.12.1920 for Rs. 250/-in favour of Fulo Ram, who was the ancestor of defendant-Ist party and the due date of payment of mortgage money was stipulated till 1337 fasli (1930). The mortgagor would be entitled to redeem the mortgage under Section 60 of the Transfer of Property Act which reads as under:- “60. Right of mortgagor to redeem. 250/-in favour of Fulo Ram, who was the ancestor of defendant-Ist party and the due date of payment of mortgage money was stipulated till 1337 fasli (1930). The mortgagor would be entitled to redeem the mortgage under Section 60 of the Transfer of Property Act which reads as under:- “60. Right of mortgagor to redeem. — At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court. The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money. Redemption of portion of mortgaged property. — Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.” 14. The general principle contained in Section 60 of the Transfer of Property Act is that the mortgagor retains his right of payment and the amount due at the proper time and to get the mortgaged property redeemed calling upon the mortgagee to deliver its possession or to re-convey the mortgaged property. But the present suit is not one for redemption of the mortgage but for recovery of possession, and that by itself would be a ground for dismissal of the suit. Since the plaintiffs were claiming through mortgagor, they ought to have filed a suit for redemption of mortgage and not for declaration and recovery of possession of the property. This suit is not maintainable in view of Hon'ble Supreme Court in case of Padma Vithoba Chakkayya Vs Mohd. Multani and another reported in AIR 1963 SC 70 . The aforesaid substantial question of law is answered in favour of the appellants. 15. So far the question of suit being barred by res judicata in view of dismissal of Miscellaneous Case No. 37 of 1968 filed by plaintiff (Sibu Ram) under Section 83 of the Transfer of Property Act is concerned, it is admitted case of the plaintiffs that original plaintiff no. 1 filed Miscellaneous Case No. 37 of 1968 under Section 83 of Transfer of Property Act and deposited the sudbharna money in the court of Munsif-II, Munger. After notice, Fulo Ram (original mortgagee) appeared and filed objection with false and incorrect allegations, but the case was disposed of without any adjudication and without drawing the sudbharna money by Fulo Ram. 16. The provision of Section 83 of the Transfer of Property Act reads as under:- “83. 1. Power to deposit in Court money due on mortgage. — At any time after the principal money payable in respect of any mortgage has become due and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any Court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage. 2. Right to money deposited by mortgagor. 2. Right to money deposited by mortgagor. —The Court shall thereupon cause written notice of the deposit to be served on the mortgagee, and the mortgagee may, on presenting a petition (verified in manner prescribed by law for the verification of plaints) stating the amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount, and on depositing in the same Court the mortgage-deed and all documents in his possession or power relating to the mortgaged property, apply for and receive the money, and the mortgage-deed, and all such other documents, so deposited shall be delivered to the mortgagor or such other person as aforesaid. Where the mortgagee is in possession of the mortgaged property, the Court shall, before paying to him the amount so deposited, direct him to deliver possession thereof to the mortgagor and at the cost of the mortgagor either to re-transfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct or to execute and (where the mortgage has been effected by a registered instrument) have registered an acknowledgment in writing that any right in derogation of the mortgagor's interest transferred to the mortgagee has been extinguished.” 17. This aspect of the matter is settled by the Hon'ble Apex Court in case of Bishwanath Prasad Singh Vs Rajendra Prasad and another reported in 2006 (4) SCC 432 and at paragraph nos. 37, 38 and 42 of the aforesaid judgment reads as under:- 37. The provision merely permits the mortgagor to deposit the mortgage amount. Even in a case where such deposit is made, in the event the mortgagee refused to accept the deposit, the mortgagor would have no option but to institute a suit for redemption relying on the mortgage money deposited. The respondent did not file a suit for redemption. It may be that the appellant objected to the said deposit but despite the fact that the purported mortgage amount was allowed to be deposited, the same being not binding upon the mortgagee as he could not be compelled to accept the same, the question of applying the principles of res judicata would not arise. (See Chandramani Pradhan v. Hari Pasayat [ AIR 1974 Ori 47 ] By reason of such deposit the status of the parties is not altered. (See Chandramani Pradhan v. Hari Pasayat [ AIR 1974 Ori 47 ] By reason of such deposit the status of the parties is not altered. For filing a suit for redemption by the mortgagor, deposit under Section 83 is not a precondition. 38. It is well known that the function of a court in terms of Section 83, Transfer of Property Act is procedural in nature. 42. In Union of India v. Pramod Gupta [(2005) 12 SCC 1 : JT (2005) 8 SC 203] this Court opined: (SCC p. 22, para 29) “29[28]. The principle of res judicata would apply only when the lis was inter partes and had attained finality in respect of the issues involved. The said principle will, however, have no application inter alia in a case where the judgment and/or order had been passed by a court having no jurisdiction therefore, and/or in a case involving a pure question of law. It will also have no application in a case where the judgment is not a speaking one.” 18. In view of the aforesaid decision, the res judicata shall have no application. 19. So far IInd substantial questions of law, whether the suit and claim of the plaintiffs was barred under proviso to Section 34 of the Specific Relief Act, 1963, is concerned, it is relevant to visit Section 34 of the Specific Relief Act, 1963 which reads as under:- “Discretion of Court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.” 20. Now, in order to deal the instant substantial questions of law, in the case of Venkataraja and others Vs Vidyane Doureradjaperumal and others reported in 2014 (14) SCC 502 is being appreciated. The Hon'ble Supreme Court has discussed the maintainability of the declaratory suit without considering consequential relief. Now, in order to deal the instant substantial questions of law, in the case of Venkataraja and others Vs Vidyane Doureradjaperumal and others reported in 2014 (14) SCC 502 is being appreciated. The Hon'ble Supreme Court has discussed the maintainability of the declaratory suit without considering consequential relief. The Court held that the purpose of the proviso to Section 34 of the Act is to avoid the multiplicity of the proceedings. A mere declaratory decree remains as non-executable in most cases and since the plaintiffs did not amend the pleadings despite the objections in the written statement, it also defeated the purpose of Order II Rule 2 of the Civil Procedure Code and hence, was not found maintainable. 21. The present suit was filed only for recovery of possession without asking for redemption of mortgage which stands vitiated in view of the law discussed above. 22. So far IIIrd substantial question of law is concerned, whether the learned court of appeal rightly put onus on the defendants-Ist party to disprove the relationship of the plaintiffs with the mortgagors. 23. After analyzing the judgment of learned lower appellate court, it is found that the court has wrongly shifted the onus from plaintiffs to the defendants in order to prove right, title and interest over the suit land. However, it is admitted case of the plaintiffs that defendants were mortgagor and in the month of August 1980 they dispossessed the plaintiffs. It is for the plaintiffs to prove their case as per their pleadings and the plaintiffs failed to prove their dispossession. On the above claim pleaded by the plaintiffs, the lower appellate court did not record any finding. 24. In view of the above discussion made above in my opinion, the suit for recovery of possession and mesne profit without claiming redemption of mortgage is not maintainable. 25. Therefore, the findings of the appellate court are not based on correct and proper discussion of law and evidence involved in the instant matter. So, the judgment of the appellate court is not in correct perspective. 26. 25. Therefore, the findings of the appellate court are not based on correct and proper discussion of law and evidence involved in the instant matter. So, the judgment of the appellate court is not in correct perspective. 26. In the result, the judgment of the first appellate court dated 03.04.2007 passed by the Additional District Judge, Fast track-II, Munger, in Munsifi Title Appeal No. 02 of 1998 is hereby set aside and the judgment of trial court dated 16.12.1997 passed by the learned Munsif-II, Munger, in Title Suit No. 59 of 1996 is hereby affirmed. 27. Accordingly, this appeal is allowed. 28. There shall be no order as to costs.