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Gulam Rasool and ors. Vs. Abdul Gaffar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 445 of 1975
Judge
Reported in1982WLN(UC)224
AppellantGulam Rasool and ors.
RespondentAbdul Gaffar and ors.
DispositionPetition dismissed
Cases ReferredIn Ramchandra vs. Usmangani
Excerpt:
.....belonged to peerbux and hus ainji nor it has been proved by satisfactory evidence that the suit property was mortgaged by them in samvat year 197 j to nathuji and his son fakir mohd, nor the sub-mortgage thereof has been established.;appeal allowed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not..........the city of jodhpur, originally belonged to peerbux and hussain son of imambux. they mortgaged the suit property to fakir mohd. and his father nathuji for a sum of rs 101/- in samvat year 1973. in samvat year 1984, nathuji and his wife ashi and son fakir mohd. sub mortgaged the suit property for rs. 100/- to kadarbux it was further alleged by the plaintiff that mohd. hanif and ajeem, defendants nos. 3 and 4. who are successors of peerbux and hussain, sold the equity of redemption to the plaintiffs by a registered sale deed dated january 2, 1963 for a sum of rs. 2000/- the plaintiffs, therefore, filed a suit for redemption of the mortgage regardine the property in dispute. gulam rasool defendant, in his written statement, alleged that peerbux and hussain were not the owners of the.....
Judgment:

Dwarka Prasad Gupta, J.

1. The second appeal arises out of a suit for redemption, which was decreed by the learned Additional District Judge, Jodhpur on September 16, 1974. Briefly stated, the facts which have given rise to this appeal, are that according to the plaintiff the property in dispute in the suit, which is situated in the city of Jodhpur, originally belonged to Peerbux and Hussain son of Imambux. They mortgaged the suit property to Fakir Mohd. and his father Nathuji for a sum of Rs 101/- in Samvat year 1973. In Samvat year 1984, Nathuji and his wife Ashi and son Fakir Mohd. sub mortgaged the suit property for Rs. 100/- to Kadarbux It was further alleged by the plaintiff that Mohd. Hanif and Ajeem, defendants Nos. 3 and 4. who are successors of Peerbux and Hussain, sold the equity of redemption to the plaintiffs by a registered sale deed dated January 2, 1963 for a sum of Rs. 2000/- The plaintiffs, therefore, filed a suit for redemption of the mortgage regardine the property in dispute. Gulam Rasool defendant, in his written statement, alleged that Peerbux and Hussain were not the owners of the property in dispute and as such there was no question of their mortgaging the said property with Nathuji and Fakir Mohd. nor there was any question of transfer of mortgagee rights by Nathuji and others in favour of Kadarbux, Illah(sic)bux and Gulam Rasool. Gulam Rasool defendant asserted that he was the owner of the property and was in possession thereof for more than 100 years. It was also pleaded that the suit filed against Gulam Rasool alone was not maintainable, as Kadarbux was the real successor and descendent of Imambux and he should have been made a party to the suit. Fakir Mohd. admitted the mortgage and claimed a sum of Rs. 225/- by way of expenses, which were incurred by him in carrying out the necessary repairs of the suit property. Defendants Nos. 3 and 4 in their written-statement substantially admitted the claim of the plaintiff.

2. The trial court dismissed the plaintiffs suit, but on appeal the first appellate court decreed the suit and a decree for redemption was passed in favour of the plaintiff on September 16, 1974 by the Additional District Judge No. 2, Jodhpur. In the second appeal, it was urged by the learned Counsel for the defendant-appellant that the first appellate court grossly erred in holding that the mortgage was fully proved and that in the absence of clear proof of mortgage, a decree for redemption could not have been passed, According to the learned Counsel for the appellant, even the title of the mortgagors Peerbux and Hussainji in respect of the suit property has not been proved. Learned Counsel for the appellant submitted that there was a gross misreading of the material on the record. Learned Counsel for the respondents tried to support the judgment and decree passed by the first appellate court and urged that there was a finding of fact which should not be disturbed in second appeal by this Court.

3. I have carefully considered the argument of the learned counse for the parties. The plaintiff did not produce any patta in proof of their title or any document relating to the alleged mortgage nor any mortgage deed has been produced or summoned. The entire evidence of the alleged mortgagors is oral. It was far the plaintiffs to prove the title of the mortgagor; and their right to redeem the alleged mortgage. However, the first appelate court has considered the case as if it was for the appellant Gulam Raseol to prove his right to the property in dispute. The plaintiffs have produced bree witnesses P. W. I. Abdul Gafoor and P.W. 2 Wazir Mohd. have no know-ledge about the title of the suit property. They simply stated that Nathu told them that the shop was mortgaged with him by Peerbux and Hussarji. P W. 3 Abdul Gafoor plaintiff stated that Nathu told him that Peerbux and Hussainji were residing in the disputed property 54 or 55 years ago The mortgage is said to have taken place in Samvat year 1973 for a sum of Rs. 101/-If the property was mortgaged with possession in Samvat year 19/3 Nathuji and Fakir Mohd., the question of the mortgagor Peerbux an i Hussainji remaining in possession there of in Samvat year 1975-76 could not arise. The most important factor for consideration is that P. W. 3 Abdul Gafoor plaintiff himself stated that a document was executed on a plain paper in respect of the mortgage, but the same was not registered. The adjoining house belongs to the plaintiffs, but the plaintiffs failed to produce the pattas of the adjoining house which could have shown as to who was the owner of the shop in dispute. The possession is sought to be proved by production of 3 rent-deeds but none of them has been proved According to he plaintiffs, a sub-mortgage was created by Nathuji and his wife Ashi in Samvat year 1984 in favour of Kadarbux Illahibux and Gulam Rasool Neither any evidence regarding payment of the amount in respect of the submortgage nor any reliable evidence of the fact of sub mortgage has been produced by the plaintiff. Gulam Rasool defendant appellant produced his account-books (Bahikhatas), but the plaintiffs were unable to point out any entry in them in respect of the payment of the amount of sub-mortgage. According to the plaintiffs, when Gulam Rasool defendant was asked to redeem the shop, he took the stand that he would purchase the suit property for a sum Rs. 1,500/- and the plaintiffs were willing to sell suit property for the said amount. According to P.W. 3 a stamp worth Rs. 50/- was purchased for the purpose of executing a sale deed in favour of defendant No. 1. It may be observed in this respect that at the relevant time a stamp of Rs. 39/-only was required for executing a sale-deed in respect of the property of the value of Rs. 1,500/-and not a stamp of Rs 50/-. It is unbelievable that even if a stamp of Rs. 39/- was required, yet the plaintiff would have proceeded to purchase a stamp of Rs. 50/- for the purposes of executing a sale-deed for the disputed premises. Thus, the story of the alleged agreement for selling the suit property to defendant No. 1 for a sum of Rs. 1,500/- cannot stand to scrutiny. Learned lower appellate court has drawn support for its finding from the fact of purchase of a stamp of Rs. 50/- by the plaintiffs, in order to arrive at the finding that the ownership of Peerbux and Hussainji was proved. But, as I have observed above, the purchase of the stamp of Rs. 50/- in the name of Kadarbux, cannot be of any assistance on the question of proving the title of the mortgagors to the suit property. The lower appellate court has relied upon the testimony of P.W 3 Abdul Gafoor and P.W 4 Fajir Mohd. in order to arrive at a finding that the property in dispute was mortgaged by Peerbux and Hussainji in favour of Fakir Mohd. and his father Nathuji although it has been held that the statements of P.W.I Abdul Gafoor and P.W.2 Wazir Mohd. do not appear to be believable. However, the entire story set up by P.W. 3 Abdul Gafoor cannot be accepted on account of the fact that his testimony to the effect that defendant No. 1 had agreed to purchase the shop in dispute for Rs. 1,500/- and that a stamp of Rs. 50/- was purchased by him for the purpose of executing the sale-deed appears to be entirely false and ficticious. No body would purchase a stamp of Rs. 50/- when a stamp of only Rs. 39/- was required. The evidence of P.W. 7 and P.W. 8 is also of no value as they have no knowledge either about the title of the property in dispute or regarding the fact of mortgage.

4. So far as the rent-deeds Exs. 4 to 6 are concerned, they are also of no assistance as it is difficult to hold that the said documents relate to the property in dispute. Even if the documents are more than 30 years old, yet in case the plaintiffs make an attempt to prove the documents by producing evidence in respect thereof but fail to do so, then a presumption under Section 90 of the Evidence Act could not be drawn. In Ramchandra vs. Usmangani 1953 RLW 153, this Court held that it is not obligatory upon the court to raise a presumption under Section 90 of the Evidence Act in favour of a person who desires to prove such fact. A party can undoubtedly ask the court to make a presumption in his favour, in accordance with the provisions of Section 90 of the Evidence Act, if the document is more than 30 years old, but where the party does not rely upon the presumption and adduces evidence to prove the genuineness of the document, but fails to prove the same, then such a party could not fall back thereafter and rely upon the presumption under Section 90 of the Evidence Act. In that case also a presumption was sought to be drawn under Section 90 of the Evidence Act, regarding the genuineness of a rent-deed, alleged to have been executed more than 30 years ago. This Court, after considering all the circumstances, came to the conclusion that it would not be proper to draw a presumption about the genuineness of the rent-deed under Section 90 of the Evidence Act after the party led evidence but failed to prove the document. In the present case also the plaintiffs at the initail stage did not rely upon the presumption under Section 90 of the Evidence Act and did not make a request to the court to draw any such presumption but they went on to prove the rent deeds. It was only at the stage of arguments that the question of drawing presumption under Section 90 of the Evidence Act was raised, when the plaintiffs realised that they have not been able to prove the execution of the aforesaid rent deeds. In these citcumstances, there was no reason for raising a presumption about the genuineness of the rent-deeds, Exs. 4 to 6, merely because they are more than 30 years old. Moreover, as I have already observed above, the aforesaid documents do not show that they relate to the disputed property.

5. The first appellate court also over looked the material contradictions in the statements of P.W. 3 Abdul Gafoor and P.W. 4 Fakir Mohd. in respect of the question as to who was the scribe of the mortgage deed; while P.W. 3 stated that mortgage deed in favour of Nathuji was written by Chotmal yet P.W. 4 stated that the said document was written by Sri Kishan. There is important contradiction in the statements of these witnesses and they cannot be over looked merely on the plea of lapse of memory.

6. With regard to the proof of payment of the mortgage money, no evidence has been led by the plaintiffs. The defendant Gulam Rasool has produced his 'Bahis' in the court but no attempt was made by the plaintiffs to point out any entry about payment of mortgage money, If any amount would have been paid, there is no reason why an entry in respect thereof should not have been made in the account-books. Thus the result is that the plaintiffs have neither been able to prove the title of the mortgagors Peerbux and Hussainji to the property in dispute nor they have been able to establish the factum of mortgage nor the alleged submortgage has been proved by the evidence on record As the first appellate court committed error of law in misre(sic)ding the statements of P. W. 3 and P.W. 4 and also erroneously drew a presumption under Section 90 of the Evidence Act in respect of the rent-deed Exs. 4 to 6, I had to consider the evidence on record afresh in this second appeal. After a careful consideration of the entire material on record lam of the view that the trial court was right in holding that neither it was proved that the disputed property belonged to Peerbux and Hussainji nor it has been proved by satisfactory evidence that he suit property was mortgaged by them in Samvat year 1973 to Nathuji and his son Fakir Mohd. nor the sub mortgage thereof has been established.

7. I, therefore, allow the appeal and set aside the judgment and decree passed by the learned Additional District Judge, No. 2, Jodhpur and restore that of the trial court. Consequently, the plaintiffs' suit for redemption is dismissed. In the circumstances of the case, the parties are left to bear their own costs of this appeal

8. Civil Revision No. 445 of 1975 relates to an order passed on the stay application in Civil Second Appeal No. 664 of 1974. As the main appeal has now been allowed and the decree passed by the first appellate court has been set aside, the question of furnishing a security bond has become infructuous and it need not be decided in this case as to whether the security bond should be stampted and should be registered.

9. The revision petition, is therefore, dismissed as having become infructuous. The parties shall bear their own costs of this revision petition.


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