1. This is a second appeal in a suit for redemption of a mortgage.
2. The appellant sued the respondents for redemption of a mortgage alleged to have been effected by Kela Bhajja in favour of Daya Ram. According to the plaint, a plot of land 17 bighas and 14 biswas bearing Survey Record No. 207 in village Rewara, Tehsil Rashmi, was mortgaged somewhere about Samvat 1956 for Rs. 25/-. It was alleged that the defendants who are the sons and heirs of Daya Ram had not only paid themselves off, but had enjoyed an excess income of Rs. 2,200/- since the date of the mortgage. It was alleged that the plaintiff Dalu was the heir and legal representative of the mortgagor and redemption was prayed without any payment of money or such payment of money to which the defendants may be entitled under the mortgage. The defendants denied the mortgage and set up their own title on account of a sale alleged to have been executed by Megha Sawai Ram in favour of Sola. It was alleged that they were in possession of the property in dispute since generations and for a portion thereof held a sale-deed dated Poh Sudi 7, Samvat 1950 in their favour. The trial Court accepted the genuineness of the sale-deed relied upon by the defendants which was in respect of 7 bighas, but decreed the suit for redemption of 10 bighas and 14 biswas of land without any payment to the defendants. Both the parties being dissatisfied with the judgment of the Munsif, Kaparin, filed appeals to the Court of District Judge at Chittorgarh. The learned District Judge came to the conclusion firstly that the mortgage relied upon by the plaintiff had not been proved and secondly that the plaintiff had failed to prove that he was successor in interest of Kela Bhajja. He accordingly accepted the defendants' appeal and dismissed the suit.
The appeal of the plaintiff was automatically dismissed.
3. In this appeal, it is urged that the plaintiff produced two copies of the settlement records of Samvat 1983 and Samvat 2002 in which the defendants' possession is mentioned as that of a mortgagee, and that the lower Court has erred in not relying on that evidence. It was also argued that the defendants who were in possession of the land must have been paying rent to the State, but they failed to produce the receipts and it should be presumed that rent was paid by them to the account of the plaintiff. Reliance was also placed on oral evidence which has been held to be unreliable by the learned District Judge. An order of the Tehsildar in mutation proceedings by which the . plaintiff Dalu was directed to be entered as Khatedar in place of Kela Bhajja, on 9th February 1946 was also relied upon.
4. As to the next question of Dalu plaintiff being the successor in title to Kela Bhajja, reliance was placed on a decision of Mehdraj Sabha dated 19th May 1911.
5. On behalf of the respondents, it was contended that both the points on which the District Judge dismissed the suit were points of fact and could not be raised in second appeal. It may be stated at the outset that the points raised by learned counsel for the appellant become questions of law in so far as certain documentary evidence such as copies of state records were not held admissible by the District Judge. It was argued by the learned counsel for the appellant that under the law in Mewar known as Kanune Mal Mewar, which was Act No. 5 of 1947, records prepared under the old laws or rules have been declared to have the same effect as prepared under Section 3 (2) of the Act. The relevant portion says that documents relating to rights or other documents which had been prepared according to the revenue rules in force prior to the enforcement of the Kanune Mal Mewar, will so far as may be deemed to have been prepared under this Act. The Act itself provides for certain documents to be prepared at the time of settlement and in the Chapter relating to Settlements, it is mentioned that at the time of making settlement of any village or District, certain documents will be prepared. In Section 55, Sub-clause (2), item No. 2 relates to preparation of a Khasra which is to contain the name of the cultivator or the occupier of the land, the area of land, and the right under which he is in possession of that land. It is also mentioned that the officer who has to prepare these documents will also mention all those matters which under the rules may be made necessary to be entered. It is conceded that no rules referred to in this item had been framed. The lower Court has placed no reliance on these documents on the ground that they were copies of certain originals. It is explained by the learned counsel for the appellant that according to the practice in the Courts of Mewar, original documents were kept with the parties and their copies placed on record. I have found that this is the practice in Marwar also, and in the state of pleadings and procedure that was in force in Mewar, the certified copies which were with the parties could be looked into and deemed to have been produced. There is a note on the copies produced on the record that they were according to the originals; these originals, however, were the certified copies. These revenue records are admissible in evidence provided they satisfy the conditions laid down in Section 35 of the Evidence Act, under Section 35,
'An entry in any public or other official book, register or record, stating a fact in issue or 4 relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.'
6. The plaintiff, therefore, had to show that under the rules or the law in force in Mewar Sin Samvat 1983 and Samvat 2002, it was a part of the duty of the officer preparing these revenue records to mention the facts which appear in these documents. Mr. Tej Singh, who appears for the appellant confesses his inability to refer to any revenue rule which may have authorized the Revenue Officer to make the entries relating to the mortgage. He has stated that these revenue rules were spread over a number of years and had not been complied and it was impossible to lay hands on the rules which may have given this authority. As stated above the Kanune Mal Mewar only validates those documents which had been prepared in accordance with the Revenue Rules in force prior to the enforcement of the Act. It is impossible, therefore, to say under what law this particular fact of mortgage was entered into the two records of settlement in Samvat 1983 and Samvat 2002. There is no reference either in this record as to the nature of the enquiry made by the officer who prepared this document. There is no reference either to the Missul Hakiyat' which is generally the term for the file in which the enquiry is made and the statements of the various persons are recorded and on a consideration whereof such entries are made. As to the order of mutation passed by the Tehsildar, on 9th February, 1946, it may be stated at once that the defendants were no party to the mutation proceedings and no enquiry seems to have been made beyond the statement of Lambardar that Dalu who wanted the mutation to be made in his favour was successor-in-title to Kela and Bhajja.
7. The oral evidence in this case is, as observed by the learned District Judge, worthless. Two witnesses have been produced--one is Hukumchand and the other is Bheru Lal. Hukumchand purports to say that he heard the contents of the document about 40 years ago when some dispute arose as to the redemption of the mortgage between the father of the plaintiff and Daya Ram. He, however, admits that he did not take the document in his hand or read it. As held by their Lordships in ' MUNNALAL v. MT. KASHIBAI', AIR 1947 P C 15, the statement as to the contents of a document by a witness who has not himself read the document is not secondary evidence of the contents of the document within the meaning of Section 63 of the Indian Evidence Act. The other witness Bherulal says that he saw the document about five years ago when called by Chaturbhuj to find out the document of mortgage from his Bahi, but he does not remember on whose behalf it was executed. He makes a mistake when he says that this document was in favour of Juharmal, Chaturbhuj and Daya Ram and was for securing a loan of Rs. 24/12/-. This was not the case of the plaintiff. The statement that he was called by Chaturbhuj of his own accord and in connection with Dalu's request to redeem the mortgage is untrustworthy. Dalu was not present at that time and no specific intimacy with the witness has been mentioned. As to the contention that the failure of the defendant to produce the receipts of rent paid by him in the Government Treasury, the presumption can be that if produced they would go against the defendant but it cannot be presumed from it that the rent was paid on account of the plaintiff. The plaintiff, if he relied on this fact, could produce the counter-foils or other evidence from Government records. In any case, the fact that the property was mortgaged at some time does not give a right to redeem unless it can be shown that the mortgage was subsisting at the time of the suit, and that the suit was within limitation. In the absence of any reliable evidence that the mortgage was effected in Samvat 1956, the entries in the revenue records would not prove that the mortgage was subsisting at the date of the institution of the suit.
8. On the next question also, I agree with the learned District Judge that the plaintiff has failed to show that Kela and Bhajja were pre-decessors-in-title of the plaintiff. The plaintiff himself has not entered the witness-box and the only witness who makes some statement connecting the plaintiff with Kela & Bhajja, is Mayachand. It is in cross-examination of that witness that he states that Dalu's father Fatta was adopted by the widow of Kela. He has, however, not stated the means of knowledge, and the evidence is not of much value.
9. The decision of Mehadraj Sabha relied upon was in certain escheat proceedings. Some-body had made a 'mukhbari' that Mega S/o Shambhu, brother of Kela, had died heirless. This 'mukhbari' was dismissed when it was found on enquiry that Kela's widow Mt. Nauli was alive and therefore, it could not be a case of escheat of Mega's estate to the Crown. It is mentioned in the body of the decision that Mt. Nauli had taken Fatta in adoption but that fact was not relevant according to the decision so long as Mt. Nauli was alive. It was stated to be immaterial whether she had or had not adopted any person. It was argued that this was judgment in rem, and therefore, sufficient to prove that Fatta had been adopted by Mt. Nauli. Reliance was placed on a decision of former Rajasthan High Court in an un-reported case 'DEVILAL v. GANGA DAS'. On the perusal of the said judgment, however, I find that the matter was not at all discussed. It was mentioned that in S. 1980 such escheat cases were treated as cases of civil nature and the final judgment had the effect of judgment in rem. The Evidence Act having been brought into force thereafter, the observation is now not relevant.
10. The decision of the Mehadraj Sabha being not 'inter partes' & the fact of adoption of Fatta having been held to be not relevant in that case, it is inadmissible in evidence to prove the adoption of Fatta by Mt. Nauli, widow of Kela.
11. As a result, I agree with the learnedDistrict Judge on both the points. This appealfails and is dismissed with costs.