Lakho Tewari vs Lalit Koeri and Others

Allanson, J.—This appeal arises out of a suit for redemption of a usufructuary mortgage executed by the plaintiff in favour of defendants 1 and 2. The defence was that this land was the defendants'' raiyati land, and had never been mortgaged to them by the plaintiff. The suit was decreed and the appeal was dismissed by the learned Subordinate Judge. Defendant 1, one of the mortgagees, appeals.

The first point argued, which does not appear to have been taken in the lower Court is that the suit is not maintainable, as the mortgage was void as initio u/s 46, Chota Nagpur Tenancy Act. It was a registered usufructuary mort, gage for five years and was certainly valid under that section. Then it was contended that as the defendants had been allowed to hold on beyond the five years, this is an indication that the parties intended the mortgage should be for a longer period than five years, and, therefore, it was an invalid mortgage.

The defendants are now trespassers, and the suit for redemption cannot lie. If this contention was sound, then every usufructuary mortgagee in Chota Nagpur would, on the first day after the expiry of the five years'' term, be a trespasser. If so, the original raiyat could bring an ejectment suit without having to deposit the mortgage-money. There is nothing, in my opinion, in the contention that the suit is not maintainable.

The next point is that the bond has not been properly proved. I am inclined to think that on the pleadings the execution of the mortgage-bond might have been taken to be admitted by the defendants. There is no denial in the written statement that the mortgage-bond mentioned in para. 2 of the plaint was not executed by the defendants. Paras. 5 and 6 of the written statement run as follows:

5 That the plaintiff''s allegation that he has let out the land in suit in rehan to this defendant for Rs. 100 is quite false and fictitious. This defendant did not and does not cultivate the land in suit as rehan land.

That the rehan land alleged by the plaintiff has no connexion at all with the land in suit recorded in the survey papers; nor do the boundaries of the rehan land fully tally with those of the land in suit. They are two separate pieces of land.

It is clear that the defence really was that the land mortgaged was not identical with the land in suit. u/s 68, Evidence Act, as amended by Act 31 of 1926, it is not necessary to call an attesting witness in proof of the execution of a registered document, not being a will, unless its execution by the person by whom it purports to have been executed is specifically denied.

In any case nothing has been put before me to justify my holding that the concurrent findings of the lower Courts, that the genuineness of the bond was sufficiently established, were wrong findings. The same remark applies to the contention that the passing of consideration had not been proved. There is no denial in the written statement that consideration did not pass.

It was next argued that the defendants had acquired a tenancy by estoppel. I am quite unable to follow the contention. Apparently the alleged estoppel was between the landlord, defendant 3 and the other defendants. There can be no estoppel as regards the plaintiff.

Finally it was said that there had been an abandonment of the holding by the plaintiff and a fresh settlement by the landlord with the defendants. There was no such case made out in the written statement. The contention is based on the fact that the plaintiff began to reclaim the land and that the reclamation was afterwards completed by the defendants after they had got possession of the land in mortgage. There seems to be nothing in the point.

The appeal is dismissed with costs to the contesting respondent.