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Dwarika Tewari and ors. Vs. Mata Badal Mali and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All781
AppellantDwarika Tewari and ors.
RespondentMata Badal Mali and ors.
Excerpt:
.....further held that the plaintiff failed to prove that the plot in dispute was ever mortgaged to ram prasad mali, and that the specific mortgage set up by the plaintiffs has not been proved. these findings of the lower appellate court are based upon entries in the revenue papers and the learned counsel for the appellants has failed to satisfy me that the lower appellate court has in any way misconstrued the entries in the revenue papers. 4. on the finding arrived at by the lower appellate court that the plaintiffs failed to prove that the plot itself was mortgaged to ram prasad mali and that the plaintiffs failed to prove the mortgage set up by them, the suit for redemption had been rightly dismissed by both the courts below. 6. in the case giving rise to the present appeal it has been..........by sheo sahai, grand-father of plaintiffs 1 and 2 and great grand-father of plaintiff 3 to ram prasad mali grand-father of defendant 1 about 45 or 46 years prior to the, institution of the suit for a sum of rs. 49-15-0 and that the plaintiffs were entitled to redeem the mortgage.2. the defence to the suit was that the plot in dispute never belonged to the plaintiffs and was never mortgaged to defendants' ancestor and that the defendants were in possession of the plot in dispute not as mortgagees, but as fixed rate tenants. both the courts below have accepted the pleas urged in defence and have dismissed the plaintiffs' suit.3. the lower appellate court has found as a fact that a portion of plot in dispute was made a gift of by one thakur narain singh, who was the zemindar of the plot.....
Judgment:

Iqbal Ahmad, J.

1. This is a plaintiff's appeal and arises out of a suit for redemption of a mortgage. The plaintiff's case was that half of old plot No. 5 corresponding to plot No. 11 of the recent settlement was mortgaged by Sheo Sahai, grand-father of plaintiffs 1 and 2 and great grand-father of plaintiff 3 to Ram Prasad Mali grand-father of defendant 1 about 45 or 46 years prior to the, institution of the suit for a sum of Rs. 49-15-0 and that the plaintiffs were entitled to redeem the mortgage.

2. The defence to the suit was that the plot in dispute never belonged to the plaintiffs and was never mortgaged to defendants' ancestor and that the defendants were in possession of the plot in dispute not as mortgagees, but as fixed rate tenants. Both the Courts below have accepted the pleas urged in defence and have dismissed the plaintiffs' suit.

3. The lower appellate Court has found as a fact that a portion of plot in dispute was made a gift of by one Thakur Narain Singh, who was the zemindar of the plot in dispute to two persons Mata Din Tewari and Sheo Sahai in 1248 F., and that the plot in dispute all along continued in possession of Ram Prasad Mali as a tenant, and that the donees under the deed of 1248 F. never got actual possession of the same. It has further held that the plaintiff failed to prove that the plot in dispute was ever mortgaged to Ram Prasad Mali, and that the specific mortgage set up by the plaintiffs has not been proved. It has also held that the only right of Sheo Sahai as one of the donees under the deed of 1248 F, was to realize a certain amount of rent from Ram Prasad Mali who was tenant of the plot in dispute and it was this right to realize rent that was actually mortgaged by Sheo Sahai to Ram Prasad Mali. These findings of the lower appellate Court are based upon entries in the revenue papers and the learned Counsel for the appellants has failed to satisfy me that the lower appellate Court has in any way misconstrued the entries in the revenue papers. It is true that a perusal of the deed of 1248 F. leads to the conclusion that what was gifted by Thakur Narain Singh was not the right to realize rent, but was a right to actual occupation of a portion of the plot in dispute, but even then Ram Prasad Mali, having continued in possession as a tenant after the gift, would acquire in the plot in dispute either the rights of an occupancy tenant or the rights of a fixed rate tenant. In either case the right to the possession of the plot would be with him and the plot itself could not have been mortgaged by Sheo Sahai.

4. On the finding arrived at by the lower appellate Court that the plaintiffs failed to prove that the plot itself was mortgaged to Ram Prasad Mali and that the plaintiffs failed to prove the mortgage set up by them, the suit for redemption had been rightly dismissed by both the Courts below.

5. It is next urged by the learned Counsel for the appellants that the lower appellate 'Court having held that what was mortgaged to Ram Prasad Mali was the right 'to receive Rs. 2-3-3 as rent,' a decree for redemption of that right at least ought to have been passed in the plaintiffs favour. In support of this contention reliance has been placed by the learned Counsel for the appellants on the case of Ganeshi Lal v. Basanti Lal [1913] 20 I.C. 29, and on the case of Bala v. Shiva [1903] 27 Bom. 271. In my opinion, there is no force in the contention advanced on behalf of the appellants, and the authorities cited are distinguishable. All that was decided in the case of Ganeshi Lal [1913] 20 I.C. 29, was that though in a suit for redemption it lies in the first instance on the plaintiff to prove the mortgage set up by him, still if the plaintiff has given a prima facie proof of the same the burden shifts on the defendant. In the present case the mortgage set up by the plaintiffs has been definitely found not to have been proved. It is not the case here that the plaintiffs succeeded in adducing some prima facie proof of the existence of the mortgage which they sought to redeem and the defendants did not succeed in rebutting the case made out by the plaintiffs. The plaintiffs' allegation as to the mortgage of the plot itself has been found to be false by the lower appellate Court. In the Bombay case relied on by the learned Counsel for the appellants it was held that where the plaintiff did not tie himself down to a specific mortgage made at a particular time, he was entitled to succeed if he proved that the land was held by the defendants as mortgagees.

6. In the case giving rise to the present appeal it has been found by the lower appellate Court that the plaintiffs have failed to prove that the defendants are the mortgagees of the land sought to be redeemed, and as such, the Bombay case is distinguishable.

7. For the reasons given above, in my judgment, the decision of the lower appellate Court is perfectly correct and I dismiss the appeal with costs.


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