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Jawala Prasad Vs. Achay Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported in14Ind.Cas.132
AppellantJawala Prasad
RespondentAchay Lal and ors.
Excerpt:
limitation act (ix of 1908), section 19 - acknowledgment--acknowledgment by one of joint mortgagees--whether saves limitation. - - ' it is to be noted that the plaintiffs very clearly based their claim upon the entry in the settlement papers of 1257 fasli, corresponding to 1850 a......of the mortgagor kure, and the defendants are the representatives-in-interest of the mortgagees, sewa and daya ram. the suit was instituted on the 22nd of june 1910. in paragraph 4 of the plaint, it was alleged that in the settlement made in 1257 fasli, corresponding to 1850 a.d., an acknowledgment was made by sewa and daya ram which gave the plaintiff a fresh starting point for limitation. one of the pleas raised in defence was that the suit was barred by limitation. that plea found favour with the court of first instance which dismissed the claim. on appeal, the lower appellate court came to the conclusion that the entry in the settlement papers of 1257 fasli, corresponding to 1850 a.d., amounted to an acknowledgment and sent back the case for trial on the merits to the first court......
Judgment:

1. One Kure was originally the owner of the property in suit. He mortgaged it with possession to Sewa and Daya Ram on the 10th of February 1838 for Rs. 49. The plaintiffs are the representatives-in-interest of the mortgagor Kure, and the defendants are the representatives-in-interest of the mortgagees, Sewa and Daya Ram. The suit was instituted on the 22nd of June 1910. In paragraph 4 of the plaint, it was alleged that in the Settlement made in 1257 Fasli, corresponding to 1850 A.D., an acknowledgment was made by Sewa and Daya Ram which gave the plaintiff a fresh starting point for limitation. One of the pleas raised in defence was that the suit was barred by limitation. That plea found favour with the Court of first instance which dismissed the claim. On appeal, the lower Appellate Court came to the conclusion that the entry in the settlement papers of 1257 Fasli, corresponding to 1850 A.D., amounted to an acknowledgment and sent back the case for trial on the merits to the first Court. The lower Appellate Court in its judgment remarks: ''I am unable to agree with the learned Munsif in the view which he has taken regarding the law applicable to the admissibility of evidence in this case. There is no doubt that the words naql-ul-naql (copy of a copy) are entered in the Settlement Record produced from the Collector's record-room, but the Moharrir of the record-room, who brought the said record in the lower Court and was examined on oath before that Court, stated that the said record was treated as original document and copies were issued from it, and the copy produced by the village patwari shows that the papers of the Settlement of 1283 Fasli were verified by Sewa and Daya Ram, mortgagees, and thus the entries in the Settlemet record of 1283 Fasli amount to an acknowledgment of the mortgagor's title and his right to redeem the mortgaged property, and they gave the mortgagor a fresh starting point of limitation. In other words, by reason of the verification of the Settlement Record of 1283 Fasli by the mortgagees, the period prescribed for the suit for redemption should be computed from the date when the mortgagees verified the papers in the said Settlement record, and thus the plaintiff's claim is within time.' It is to be noted that the plaintiffs very clearly based their claim upon the entry in the Settlement papers of 1257 Fasli, corresponding to 1850 A.D., and that the entries in the Settlement papers of 1257 Fasli were the only entries upon which reliance was placed in the Court of first instance. It is also to be noticed that in the Appellate Court, the appellant made an application on the 2nd of June, 1911 and in that application he asked the Court to send for the Settlement papers (misil bandobast) of 1257 Fasli only. He never applied to have the Settlement papers of 1283 Fasli sent for at all. That being so, the reference by the lower Appellate Court to the Settlement papers of 1283 Fasli must be taken to be incorrect. In the first place, these papers were not in evidence before that Court. In the second place, the originals of those papers were not proved to have been lost. In the third place, according to the statement of the patwari one of the mortgagors Sewa was dead at that time, and the name ot his minor son Ram Chander, under the guardianship of his mother Musammat Lado, was entered and there could have been no verification of the entry in 1283 Fasli by Sewa. Coming to the entry in the Settlement paper of 1257 Fasli, we find that it is a copy, the original of which was lost during the Mutiny of 1857. At the end of the copy, there are copied the signatures of Sewa, mortgagee, and Daya Ram, son of Parsa, mortgagee, but in the certificates signed by the Settlement Officer on the 24th of August 1850,and the 16th of December 1850, the names of two Daya Rams appear as the persons who verified that paper. There is no mention of the name of Sewa in either of the two certificates. Under these circumstances, the utmost that could be presumed under Section 114 of the Indian Evidence Act would be that Daya Ram did verify the Khewat and sign it provided he be the same Daya Ram whose name appears as the mortgagee. Under that Section, we cannot possibi-ly presume that that document was either verified by Sewa or signed by him and the copy before us does not show that he signed his name on the original. The utmost that, in the circumstances of the case, we can presume is that one of the two mortgagees only made an ackowledgment. It has been held in Dharma v. Balmakund 18 A. 458 that an acknowledgment of the title of the mortgagor made by only one of two mortgagees would not avail to save the mortgagors' right to redeem being barred by limitation where the mortgage was a joint mortgage and incapable of being redeemed piecemeal. We are, therefore, of opinion that the suit is barred by limitation. For the above reasons, we set aside the order of the lower Appellate Court and restore the decree of the Court of first instance with costs in all Courts. Let the record, which has come from the office of the Collector of Muttra, be returned.


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