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Nathulal Nanuram and anr. Vs. Nanda Gogaji Dhobi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 35 of 1958
Judge
Reported inAIR1960MP78
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 2
AppellantNathulal Nanuram and anr.
RespondentNanda Gogaji Dhobi and ors.
Appellant AdvocateS.R. Joshi, Adv.
Respondent AdvocateG.L. Oza, Adv.
DispositionAppeal allowed
Cases ReferredKesarlal v. Harilal
Excerpt:
- - it would be carrying technicality to the extreme of oppression to unsuit a party for a failure to understand a technical point, when he had been fair and straightforward and proved all the elements necessary to obtain a decree......redemption was decreed by the trial court, but which decree was set aside on first appeal by the defendants mortgagees, on the formal ground that there was a discrepancy between pleading and evidence, and the plaintiffs were making a fresh case at a later stage. the questions were, whether it is a material discrepancy whether the plaintiffs sought to make out, in evidence, a case substantially different from the one contained in the plaint, and whether the case as actually made out has been established.2. the parties come from what used to be sitamau state. the plaintiffs averred in the plaint that a house belonging to them had been mortgaged with possession by their father for a sum of rs. 64/- to the father and grand-father (the predecessors-in-interests) of the.....
Judgment:

H.R. Krishnan, J.

1. This is a second appeal by the plaintiff, whose suit for redemption was decreed by the trial court, but which decree was set aside on first appeal by the defendants mortgagees, on the formal ground that there was a discrepancy between pleading and evidence, and the plaintiffs were making a fresh case at a later stage. The questions were, whether it is a material discrepancy whether the plaintiffs sought to make out, in evidence, a case substantially different from the one contained in the plaint, and whether the case as actually made out has been established.

2. The parties come from what used to be Sitamau State. The plaintiffs averred in the plaint that a house belonging to them had been mortgaged with possession by their father for a sum of Rs. 64/- to the father and grand-father (the predecessors-in-interests) of the defendants-respondents. They further stated in the plaint that the mortgage had been given on 13-7-1914, and produced a document of that date signed by both parties and by witnesses.

But it is not the mortgage deed, but an agreement acknowledging the mortgage, signed by the mortgagees; they agreed to release the property on the payment of a sum of Rs. 64/- on the date mentioned there. The plaintiffs also averred in the plaint, that they were not able to produce the original mortgage deed, because it was with the mortgagees-defendants.

3. The defendants generally denied all the allegations of the plaintiffs. They further averred that there was no mortgage and therefore no deed. The document produced by the plaintiffs dated 13-7-1914 is not a mortgage deed and has not-been signed respectively by the father and the grand-father of the defendants. They said they had been in possession of the property for 75 years before the suit (1953); that is to say from 1880 or so. They did not plead anything about limitation so there was no occasion for the trial court to consider whether the agreement dated 13-7-1914 was an acknowledgment for purpose of Section 19, Indian Limitation Act.

In fact, we do not know whether there was any law about transfer of property or of limitation in the time of the Sitamau State authorities, but the general impression created is that the courts in that State had been applying the law of the neighbouring British provinces.

4. The document of 13-7-1914 was proved in the trial court; I have examined it, and it has all the appearance of a genuine old document, in a condition and a writing, which could not have been subsequently fabricated. There was the evidence of the attesting witnesses. All this made the trial court accept it as genuine. At the same time the mortgage was not of the date of this agreement but was already persisting. Obviously, it was of an earlier date, which could be ascertained, if the original had been produced.

It being, unregistered, a certified copy was not obtainable by the plaintiffs. The defendants tried to get over the difficulty by denying everything; and at the same asserted that they had been in possession from about 1880 onwards' If as has been found by the Trial Court, and rightly in my opinion from the evidence that document dated 13-7-1914 was genuine, there was certainly a mortgage subsisting at that time, very probably by a written document; whether it was or not, we are left with the only piece of evidence in the statement of the defendants that they have for 75 years before the suit, that is to say about 35 years before this document of 1914, been in possession.

Once it was found that there was a mortgage, the redemption had to be decreed, at the request of the mortgagor, unless it was barred by the limitation. The defendants had not pleaded limitation as such; if they had, the plaintiff could have taken the position that the document dated 13-7-1914 is an acknowledgment. All things considered, the decree for redemption awarded by the trial court was quite justified.

5. When the matter came in appeal the learned first appellate court considered the case purely from the aspect of the pleadings. He found, and rightly, that there were variations between pleading, and the case in one regard; in that the plaintiffs have pleaded that the mortgage was given on 13-7-1914, the document shows it was from before. But when the document itself was produced along with the plaint, in which it was also said that they could not produce the original, as it was with the defendants, there was no attempt to confuse or overreach and the mistake in describing the acknowledgment as the mortgage itself was corrected by the production of agreement.

The other variations mentioned in the judgment of the first appellate court are derived from this one. But it is not correct to say that the plaintiffs have sought a relief different from the one asked for in the plaint. The case throughout has been that the plaintiffs are the mortgagors (the mortgagor's successors) and the defendants are the mortgagees, in possession; the former should be allowed to redeem by payment o 64 rupees. The allegations have been proved.

The misdescription of the document of 13-7-1914, has not, and was not meant, to create any confusion. It was the result of the understandable inability of the plaintiffs to comprehend the difference between the original and the acknowledgment.

6. This case is very similar to the old case reported in Lakshman Bhisaji v. Hari Dinkar, ILR 4 Bom 584. The principles mentioned there are applicable here also. In the case reported in Kesarlal v. Harilal, AIR 1952 SC 47, the same are laid down :

'The court would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there, and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event, it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs.' In the present case, the plaintiffs' position is much stronger than in the latter ruling. There was really no occasion for amendment or for additional evidence, and consequently of compensating the other side by costs. There was one mistake and only one in regard to the date of the mortgage. But the plaintiffs placed all the facts in the plaint, and as they are they entitled them to the relief claimed which is of redemption. It would be carrying technicality to the extreme of oppression to unsuit a party for a failure to understand a technical point, when he had been fair and straightforward and proved all the elements necessary to obtain a decree.

7. In the result the second appeal is allowed and a decree for redemption is passed. The judgment and decree of the first appellate court is set aside. The plaintiffs should deposit, if they have not already done so, the amount payable to the mortgagees-defendants within 3 months from thedate of this judgment and ask for the final decree for possession of the mortgage property.


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