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Ramchandra Apaji Vs. Babaji Bhaurav - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom137
AppellantRamchandra Apaji
RespondentBabaji Bhaurav
Excerpt:
.....petition filed by appellant on ground of lack of jurisdiction. - 160 prove his own right as mortgagor clearly and indefeasibly, such statements as have been made in this case fall far short of satisfying this test. they fail to establish any particular mortgage at all, and are not of such a kind that showing a definable or distinguishable mortgage to have been executed, they throw on the mortgagee the onus of proving what the terms of it were and his right under it to retain the property until he is paid off. but, on the other hand, the owner of property is not to be deprived of it on mere vague intangible statements- about a mortgage for which no one could be effectively brought to book in the event of their being proved false......information however, when the plaintiff was cross-examined, turned out to be no more than 'some land is mortgaged' to (ramchandra) defendant no. 1. this, of course, was not in itself admissible evidence; but, having been admitted,, it afforded no basis for a claim to redeem any specific land on any specific terms. but the plaintiff says he paid a visit to the defendant ramchandra a couple of years or so before the institution of the suit, and at the interview ramchandra, he says admitted that he held land of the plaintiff on mortgage. witnesses nos. 24 and 25, who accompanied the plaintiff, confirm his account of the interview, and the subordinate judge in appeal has believed their story in opposition to the denial of the defendant ramchandra. but their statements are but little less.....
Judgment:

West, J.

1. The defendant Ramchandra holds the property in dispute. He says he purchased it from the plaintiff's father in 1849, and has held it as owner ever since. It was transferred to his name as possessor in the -Government accounts under the Revenue Survey in 1854-55 (Exhibit 30), and has stood against his name ever since.

2. The plaintiff says that he land was, in fact, mortgaged for Rs. 60 by his father to the defendant in 1854-55. This he asserts on the authority of his father, now deceased, whose information however, when the plaintiff was cross-examined, turned out to be no more than 'some land is mortgaged' to (Ramchandra) defendant No. 1. This, of course, was not in itself admissible evidence; but, having been admitted,, it afforded no basis for a claim to redeem any specific land on any specific terms. But the plaintiff says he paid a visit to the defendant Ramchandra a couple of years or so before the institution of the suit, and at the interview Ramchandra, he says admitted that he held land of the plaintiff on mortgage. Witnesses Nos. 24 and 25, who accompanied the plaintiff, confirm his account of the interview, and the Subordinate Judge in appeal has believed their story in opposition to the denial of the defendant Ramchandra. But their statements are but little less vague than the one reported by the plaintiff to have been made by his late father. They do not, taking them as true, establish an admission of the particular mortgage set forth by the plaintiff, nor of any specific incumbrance on any particular piece of land, which can even in a general way be identified by the description given of it, or the reference made to it.

3. The defendant Ramchandra has not produced a conveyance from the plaintiff's father. Nor is it clear that a razinama was passed in his favour in 1854-55, so as to make the case of Tarachand Pirchand v. Lakshman Bhavani applicable. His house was burned down some years ago, and he says the deed perished along with other papers. We are thus left to the facts that Ramchandra has been in possession since 1854-55, apparently as owner, that he says he is owner, and thatthe plaintiff, on the contrary, says he is but a mortgagee, and has admitted that he is so. According to Section 110 of the Evidence Act possession is prima facie evidence of a complete title; anyone who would oust the possessor must establish a right to do so; and possession unexplained, held for twelve years, would according to Sambhu-bhdi Karsandas v. Shivlaldas Sadashivdas Desai I.L.R. 4 Bom. 89 itself constitute a complete title not qualified by an assertion of the holder that he purchased from this or that person. The assertion of ownership at all implies some lawful acquisition of title, and the effect of possession as owner cannot be impaired by the surplus statement that the holder acquired by the mode of acquisition most serviceable to a holder for a shorter period. Here the defendant Ramchandra has held undoubtedly for about thirty years, and in such a case any one who after the lapse of so long a time comes forward seeking to make him a mere mortgagee must, according to Sevaji. Vijaya Raghunandha Valoji Kristnan Gopalar v. Chinna Nayana Chetti 10 Moo. I.A. 160 prove his own right as mortgagor clearly and indefeasibly, Such statements as have been made in this case fall far short of satisfying this test. They fail to establish any particular mortgage at all, and are not of such a kind that showing a definable or distinguishable mortgage to have been executed, they throw on the mortgagee the onus of proving what the terms of it were and his right under it to retain the property until he is paid off. No doubt a mortgagor, who has no document of acknowledgment from a mortgagee, may suffer from the difficulty of proving his title of fifty years ago; but, on the other hand, the owner of property is not to be deprived of it on mere vague intangible statements- about a mortgage for which no one could be effectively brought to book in the event of their being proved false. In such cases the law leans in favour of possession and an apparent right exercised for many years. It requires the person, who comes in. to redeem on his own. terms, to make out a clear case, to succeed by the strength of the title he sets up. It cannot be said that any such case has been made out by the plaintiff in the present instance, and we must, in consequence, reverse the decree of the Subordinate Judge in appeal, and restore that of the Court of first instance, with costs throughout on the respondent.


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