JUDGMENT
This is a plaintiffs’ appeal in a suit for redemption of an old mortgage. The plaintiffs came into Court on the allegation that the ancestors of the fathers of plaintiff No. 1 and the other plaintiffs were co-sharers of a 10-anna share of village Safa, and as they could not pay the Government revenue due, Nand Lal, the common ancestor of the defendants, had to pay Rs. 90 and Nand Lal took possession of their share. The Courts below have found that the plaintiffs have failed to prove the mortgage setup by them. Mr. Asthana on behalf of the appellants contends that the Courts below lost sight of para. 10 of the written statement filed by the defendant Meharban Singh on the 15th October, 1924. Paragraph 10 of the written statement is as follows:
About 66 years ago there was no grain produce in Mauza Safa and there was a famine. Nand Lal and his father who was the lambardar had to pay about Rs. 2,000 on aceount of revenue after borrowing the money. The other co-sharers refused to pay the damages (tota). Accordingly Nand Lal and his father took possession of the share of the co-sharers of the 10-anna share who were the predecessors of the plaintiffs.
This paragraph further goes on to aver that Nand Lal was in adverse possession. A written statement was also filed by Kallu, Maharaj Singh and Musammat Ram-Oman in para. 6 of which they say “If the mortgage is maintained the defendants are entitled to get Rs. 2,000 with interest get the rate of Rs. 2 percent, per mensem”.
In para. 4 no doubt they say that Nand Lal forcibly took possession of the shares In dispute.
I find in the settlement wajib-ul-an of the year 1861 a statement in which Nand Lal claimed that he should be paid compensation for past revenues which he had paid and if the other co-sharers stated on oath that nothing was due to him then he will have no objection to the other co-sharers taking profits and taking land in proportion to their share, but if they did not take the oath and pay up the compensation then they will continue to pay the rent for the lands which are in their possession. The other five co-sharers in that wapb-ul-are are recorded as having agreed to pay rent for the lands which were in their possession and whenever the controversy about the compensation was settled and Nand Lal’s claim was satisfied the account relating to the rent for the period in which the village will remain jointly owned will be taken and they will divide the land one-sixth each thereof. The learned Munsif states that the amount of the compensation not having been entered and the other co-sharers not having admitted their liability to pay the compensation to Nand Lal all this was merely a description” of the past events and could not be construed as a document whereby the co-sharers of ten annas mortgaged their interest for the ‘tola.’ The warned District Judge on appeal has held that from the entry in the Settlement Record it appeared that Nand Lal had some time or other paid certain revenues on behalf of the other co-sharers and the method of accounting ‘ as it is called, which was adopted that Nand Lal should take all the profits and the other co-sharers should pay rent for the lands which they held in their own cultivation. The learned Judge, no doubt, holds that there was nothing on the record to prove what was paid by Nand Lal. He has noticed in the judgment that the defendant-respondents in their written statement alleged that in the fix 18U Naad Lal had paid a sum of Rs. 2,000 as revenue on behalf of the remaining co-sharers but he says that they did not agree that this sum was the consideration for any mortgage. He goes on to say “It is certainly not proved that a mortgage were created on the date when this entry was made and he agrees with the learned Munsif that this document could not be held to be a mortgage-deed.”
It is not denied that in the next settle ment in the year 1890 similar entries appear. I have, therefore, to see if the transaction which admittedly took place according to the defendants in the year 1861 amounted to a mortgage by conditional sale. There is no doubt that Nand Lal got possession of the land of the other co-sharers by reason of the fact that he paid the land revenue on their behalf. The defendants do not suggest that there was any transfer or sale of the land in favour of Nand Lal. That admitted facts prove that the transaction amounted to a mortgage by conditional sale. The mortgage having been admitted in the year 1899 at the subsequent settlement no question of limitation arises. I am, therefore, of opinion that the transaction, as stated in para. 10 of the written statement of Maher ban, dated 15th October, 1924, amounted to a mortgage under the law and that the plaintiffs’ claim not being barred they are entitled to redeem that mortgage. The office will prepare a decree in terms of Order XXXIV, Rule 7. The amount payable by the plaintiffs will be Rs. 2,000 and the costs of the suit both in this Court and in the Courts below. I fix six weeks from this date as the date for payment. Defendants Nos. 1-4 are the heirs of Nand Lal. As the plaintiffs came into Court on allegations which were not true and as it is on the written statement of the defendants that I have decreed the claim the plaintiffs will pay their own costs and the costs of defendants Nos. 1-4 throughout.
