ORDER
S.P. Khare, J.
1. This is defendant’s second appeal under Section 100, CPC. Arguments on the question of admission heard.
2. It was not disputed that Dashrath Lal Jain was owner of the house in dispute situated in Village Jaithari Bazar, Tehsil Sohagpur, District Shahdol.
3. It has been held by the First Appellate Court after appreciation of the evidence on record that in the year 1967 Dashrath Lal Jain took a loan of Rs. 2,000/- from the defendant and mortgaged his house with him. The possession of the house was also delivered to the defendant. The loan was to be repaid upto the year 1969. The defendant wrote letter dated 26-5-1967 (Ex. P-1) to the effect that even after the year 1969 if Dashrath Lal Jain would like to take back the possession of the house, the defendant would give him the possession. The document creating the mortgage was unregistered. The claim of the defendant that in the year 1969 Dashrath Lal Jain sold his house orally to the defendant was accepted by the Trial Court, but it has been negatived by
the First Appellate Court. The finding of the Trial Court that the defendant has acquired title to the house by adverse possession has also been reversed by the First Appellate Court. According to the First Appellate Court, the possession of the defendant under the unregistered mortgage deed was not hostile to the title of Dashrath Lal Jain and, therefore, the defendant has not acquired title to this house by adverse possession.
4. In the written statement the defendant did not deny the creation of mortgage by Dashrath Lal Jain in his favour in the year 1967. The evasive
denial ^^rF; ftl rjg ls fy[ks gSa ukeatwj gSA** and ^^;knnk’r ds vHkko esa ukeatwj gSaA** in paras 4 and 5 of the written statement amount to admission of the facts pleaded in paras 4 and 5 of the plaint and the view of the First Appellate Court on this point is correct. There is no denial that the defendant wrote the letter dated 26-5-1967 and, therefore, it will be deemed to have been written by him. There is absolutely no plea in the written statement that Dashrath Lal Jain had sold the house to the defendant in the year 1966 for an amount of Rs. 2500/-. In the absence of pleading the evidence of the defendant Narendra Prasad (D.W. 1) that he had purchased the house for Rs. 2500/- in the year 1966 from Dashrath Lal Jain has been rightly discarded by the First Appellate Court.
5. It has been argued on behalf of the appellant relying upon Ballabhdas v. Hirakak (1961 MPLJ 1225) that the unregistered mortgage deed was not admissible in evidence and, therefore, it cannot be said that Dashrath Lal Jain had mortgaged the house with the defendant. It is true that as per Section 59 of the Transfer of Property Act, where the principal money secured is one hundred rupees or upwards, a mortgage, other than a mortgage by deposit of title-deeds, can be effected only by a registered instrument. An unregistered mortgage deed is inadmissible to prove the terms of the mortgage, but it is definitely admissible to establish the nature and character of the possession of the mortgagee. It is well settled that where a person obtains possession under an unregistered mortgage, his possession is permissive. The assumption that the possession of the mortgagee under a void mortgage is adverse in respect of the absolute title of the owner is unfounded. After the expiry of period of twelve years such a mortgagee acquires “prescriptive right” to the limited interest of mortgagee. An unregistered document can always be availed of for the purpose of showing character and nature of possession of the person who was placed in possession of the property under that document. (Varada Pillai v. Jeevarathnammal, AIR 1919 PC 44 and Sardar Amar Singh v. Surinder Kaur, AIR 1975 MP 230 – FB). If the unregistered lease-deed is admissible to prove the nature and character of possession of the person in possession, the unregistered mortgage deed is also admissible to prove the nature and character of the possession of the person to whom the possession has been given under the said unregistered mortgage deed.
6. The First Appellate Court has appreciated the evidence on record and determined the questions of fact in light of the law settled by the Privy Council and this Court. The theory of oral sale by Dashrath Lal Jain to the defendant has been rightly discarded in para 17 of the judgment of the First Appellate Court, The pleading was that the oral sale took place in 1969 and the evidence was that the oral sale was made in 1966, that is before the creation of mortgage. Such evidence contrary to the pleading could not be accepted. The First Appellate Court has further rightly held both on facts and on law that the plaintiffs have a right to redeem the mortgage. It cannot be lost sight of the cardinal principle “once a mortgage must always remain a mortgage”. The owner of the house cannot lose his title to the house because the document by which he created the mortgage is unregistered. Similarly such a transaction would not clothe the mortgagee with the title of that house. Mortgage can never be irredeemable. (Pomal v. Vrajlal, AIR 1989 SC 436). The plaintiffs have been rightly held to be entitled to redeem the mortgage.
7. Where a plaintiff cannot regain possession on the basis of an oral mortgage as it cannot be proved in a Court of law for want of registration, it is open to him to recover possession on the strength of his title (K. Variath v. P.C.K. Haji, AIR 1974 SC 689). A suit for redemption is equally a suit for possession of property. It is always open to the Court to decree a plaintiffs claim for possession on the basis of title if the mortgage itself was unregistered. (Ramjit Kanhaya v. Parsadi Mungram, 1961 MPLJ Note 297). In this case the defendant should be grateful to the plaintiffs that they are paying back the amount of Rs. 2,000/-.
8. The judgment and decree of the First Appellate Court are in conformity with the well settled legal position. No substantial question of law arises in this appeal. It is dismissed in limine.