1. This was a suit by the appellant for the redemption of a mortgage made by one Chajju Khan in favour of the respondent Chunni Mal on March the 11th 1898. Chajju Khan transferred all his rights in the property to the appellant on November the 16th, 1908. The deed seems to have been before the Courts below, but it cannot now be found on the record. It is said to contain a statement that the amount remaining due on the mortgage was Rs. 115. The appellant prayed for a decree for redemption of the property on payment of Rs. 115, alleging that the remaining amount claimable under the mortgage had been paid to the mortgagee. The respondent Chunni Mal pleaded that no payments had been made to him at all. In paragraph 3 of the plaint the appellant said that the original mortgagor had asserted that some of the amounts paid to the mortgagee were endorsed on the document and others were proved in other ways. The respondent Chunni Mal was called upon to produce the mortgage-deed. He said that he had lost it in September 1909. The Munsif found that it was proved that the document had been lost. He also found that the appellant had failed to prove that any payments had been made, and he passed a decree for redemption on payment of Rs. 718-7-6. His decree was affirmed on appeal by the Additional Judge with a trifling modification as to costs. But the learned Additional Judge held that Chunni Mal had failed to prove the loss of the mortgage-deed. He found in effect that Chunni Mal had invented the story of the loss of the document. He evidently thought that Chunni Mal was keeping back the mortgage-deed. In second appeal it is contended that the lower Appellate Court ought to have presumed that, if the mortgage-deed had been produced, it would have proved that all the sums alleged by the appellant to have been paid were in fact paid, leaving only Rs. 115 due on the mortgage. It is suggested that the learned Judge failed to notice that he was entitled, under Section 114 of the Indian Evidence Act, to make this presumption against Chunni Mal. It is rather difficult to say with certainty whether the learned Additional Judge had or had not in his mind Section 114 of the Evidence Act. But there is one passage in his judgment which suggests that whether he had that Section in his mind or not, he realized that the non-production of the mortgage-deed by Chunni Mal was a strong point against him, for after discussing the appellant's evidence and other matters, he says, 'the only circumstance against the contesting defendant is that the loss of the bond is not proved in my opinion.' Speaking for myself, I am not satisfied that the learned Judge bore in mind the rule contained in Section 114 of the Evidence Act which permitted him to presume that the mortgage deed, if produced, would have been unfavourable to Chunni Mal. But, under the present Code of Civil Procedure this Court is entitled in second appeal to find the facts where the lower Appellate Court has failed to record a proper finding and it seems to me useless to send this case back in order that this presumption of fact may be dealt with. On the question whether the presumption should be pushed to the extent desired by the appellant, namely, that it should be presumed that the mortgage-deed, if produced, would have proved that only Rs. 115 remained due on the mortgage, I think that that would be going too far. It is quite clear from paragraph 3 of the plaint that it was not the case of the appellant in the Court of first instance and that he never was led to suppose that all the payments to that extent were endorsed on the mortgage-deed. If it was never his case that all the payments were endorsed on the mortgage-deed, it is impossible to presume that the deed, if produced, would have proved payments. The probability is that neither aide has told the truth. One party has alleged that a much larger sum has been paid than has in fact been paid, and the other party has met the allegation with the false statement that nothing has been paid. On the pleadings, and with reference to the other circumstances of the case, I am not prepared to push the presumption to the extent desired by the appellant who has failed to prove that any sums were paid on account of the mortgage. I am of opinion that the decree of the Court below is right and I think it should be affirmed.
Karamat Husain, J.
2. I agree in the order proposed by my learned colleague.
3. Order of the Court is, that the appeal be dismissed with costs including in this Court fees on the higher scale.
4. The objections are dismissed with costs.