P L D 1956 (W (PLP)

Nemo for others. MUHAMMAD YAQUB ALI, J.‑This is a plaintiffs second appeal against the concurrent decrees passed by the Senior Civil Judge (Mr. Muhammad Abdullah Cheema) and the Additional District Judge, Gujrat (Sardar Ata Ullah), dis missing his claim for separate possession of his one‑fifth share in two houses, situated in the town of Gujrat, by partition. According to the plaintiff, these houses belonged to his father Nur Ahmad, who died in 1945, leaving behind defendants Nos. 1 to 6 and the plaintiff as his legal heirs. The success of the plaintiff's claim depended on the deter mination whether the houses in suit belonged to Nur Ahmad deceased at the time of his demise. If so, the plaintiff would admittedly be entitled to one‑fifth share in them. The contesting defendants denied the plaintiff's claim on the ground that one of the houses was the exclusive property of Muhammad Zahoor Nasir defendant No. 1 while the other belonged to Muhammad Fazil, a third‑degree cousin of the plaintiff. In proof of his claim, the plaintiff relied upon copies of mortgage‑deeds (Exhs. P. 3 and P. 5), executed by Nur Ahmad during his life‑time, of both the houses, one in favour of Inayat Ullah (P. W. 3) on the 22nd of January 1932, and the other in favour of Imam Shah, father of Amin‑ul- Mulk (P. W. 4), on the 25th of July 1934, and extracts (Exhs. P. 6 and P. 7) from record of ownership of the houses maintained in the Urban Immovable Property Taxation Office. The mortgage in favour of Inayat Ullah (P. W. 3) was redeemed during the life‑time of Nur Ahmad in 1943. Out of the mortgage money amounting to Rs. 1,100, a sum of Rs. 500 was paid in 1938 and Rs. 300 was paid by Muhammad Zahoor Nasir defendant in 1943. The balance of the mortgage‑money was given up and the mortgage‑deed was delivered to Muhammad Zahoor Nasir. The other house was redeemed on payment of Rs. 800 after the death of Nur Ahmad in the course of ejectment proceedings initiated by Amin‑ul Mulk (P. W. 4). This witness stated that he brought a suit for ejectment against Muhammad Zahoor Nasir defendant No. 1, Muhammad Sharif defendant No. 2 and the plaintiff, in the Court of Ch. Hamid Ullah, Rent Controller, Gujrat. The claim was decreed and the respondents preferred an appeal to the District Judge which resulted in a compromise. The mortgage amount was paid and their appeal was allowed. Having failed to get the original mortgage‑deeds produced by Muhammad Sharif and Muhammad Zahoor Nasir defendants, the plaintiff produced the certified copies thereof which were duly exhibited as part of evidence in the case. The extracts from the property taxation register further proved that up to 1945‑46 the houses in dispute were shown as the property of Nur Ahmad deceased. In spite of this overwhelming oral and documentary evidence produced by the plaintiff, his claim has been rejected by the two Courts below on the ground that the execution of the two mortgage‑deeds being denied by the defendants the same could not be treated as evidence in the case unless one of the attesting witnesses proved their execution. The learned trial judge said that the onus lay upon the plaintiff to prove that the houses in dispute belonged to Nur Ahmad deceased and there was no docu mentary evidence to prove the title of Nur Ahmad in respect of these houses. The evidence of title furnished by the aforementioned mortgage‑deeds was excluded from consideration on the ground mentioned above. According to him, these copies of the mortgage‑deeds had in fact not been properly proved on the record of this case. On appeal, the learned Additional District Judge remarked that, in the first place, it had not been brought out with certainty as to who was in possession of the original mortgage‑deeds, and, secondly, no attempt was made to have these mortgage‑deeds produced in Court. It was, therefore, according to the learned Additional District Judge, difficult to see how the learned Senior Civil judge allowed the secondary evidence of these transactions under issue No.

1. Continuing with the discussion under this issue, the Additional District judge observed that even if we admit a copy of one of the mortgage deeds in proof of the original, it hardly furnished a proof of the title of Nur Ahmad. In coming to this conclusion, both the Courts below have, in my opinion, taken a perverse view of the facts of the case and misconstrued the provisions of section 68 of the Evidence Act. If both the judges had taken the care to read the pleadings of the parties, they could not have omitted to notice that mortgage of one of the houses by Nut Ahmad was specifically admitted. In paras. 1 and 6 of the joint written statement filed on the 5th of February 1955 (sic), by Muhammad Zahoor Nasir, Muhammad Sharif, Mst. Badshah Begum, Mst. Hamida Begum and Mst. Taj Begum, defendants Nos. 1 to 5, the factum of mortgage and its subsequent redemption was admitted. In clause (d) of the additional pleas it was further pleaded that instead of Rs. 600, as claimed by the plaintiff, the defendants had paid a sum of Rs. 800 to redeem that mortgage. So far as the other mortgage is concerned, the plaintiff himself was an attesting witness and he deposed to the execution of the mortgage‑deed by Nur Ahmad, his deceased father. And as regards the original mortgage‑deed it was stated by the mortgagee that he handed it over to Muhammad Zahoor Nasir defendant No. 1 in 1943. What more was required by the learned judges below to hold that the two houses in suit belonged to the father of the plaintiff passes my comprehension. Imam Din (D. W. 1) stated that he had been seeing Muhammad Zahoor Nasir living in one of the houses although he did not know to whom it actually belonged. Asghar Ali (D. W. 2) made a bald statement that the other house belonged to Muhammad Fazil. The witness did not know from whom he (Muhammad Fazil) had got this house. The remaining witnesses consisted of Muhammad Fazil and Muhammad Zahoor Nasir defendants who, of course, deposed in favour of their respective claims. This evidence is so thin that both the Courts below did not consider it worthwhile to refer to it in dismissing the plaintiff's claim. So far as the objection by the learned Additional District judge to the permission granted to the plaintiff by the trial Court to lead secondary evidence of the mortgage‑deeds is concerned, it is in evidence that the plaintiff summoned Muhammad Sharif and Muhammad Zahoor Nasir defendants to produce the original mortgage‑deeds which they declined to do. Inayat Ullah (P. W. 3) the mortgagee of one of the houses, stated that on redemption of the house in 1943 he handed over the original mortgage‑deed to Muhammad Zahoor Nasir. As regards the other mortgage‑deed, Amin‑ul‑Mulk (P. W. 4) stated that the deed was in his possession. In case the defendants challenged the correctness of his statement, the witness should have been asked to produce it in Court which was not done. There is also a copy of the statement of Amin‑ul‑Mulk (Exh. P. 4) in Civil Appeal No. 50 of 1951, in which he admits to have received the total mortgage amount and redeemed the house. A copy of the order passed in that appeal (Exh. P. 8) by the Additional District Judge, Gujrat, on the 31st of May 1951, shows that on the basis of this statement, the order of the Rent Controller for the ejectment of the respondents in that case, namely, Muhammad. Zahoor Nasir and Muhammad Sharif defendants and the plaintiff, was set aside. It will be recalled that Amin‑ul‑Mulk had initiated the ejectment proceedings against the aforementioned persons from one of the houses in suit on the ground that it was mortgaged by Nur Ahmad to his father Imam Shah with possession in 1934. The Rent Controller had ordered the ejectment of the respondents and it was against that order that Civil Appeal No. 50 of 1951 was filed. The above mentioned evidence abundantly made out a case for permitting the plaintiff to lead secondary evidence of both the mortgage -deeds. From the judgments of the Courts below it does not appear that any objection was taken to the production of the certified copies of the registered mprtgage‑deeds in proof of the original. If that be so, the defendants had no right to object to it at a later stage. Lastly, the scope of the provisions of section 68 of the Evidence Act has also been completely misunderstood by the Courts below. According to the proviso to this section, if the execution of a registered document is denied by its maker, then alone it is necessary to prove it by the evidence of one of the attesting witnesses; otherwise such a document is exempt from the scope of the main section. This would show that the provisions of section 68 will apply to those cases only in which the dispute regarding the execution of the document is between the maker of the document and the person in whose favour it purports to have been executed. In the present case there was no such dispute. In fact, the mortgagees in both the cases admitted the factum of mortgages and their redemption later on. I would further like to point out that the English record of the evidence prepared by the trial Court contains many errors. For example, in the statement of Muhammad Zahoor Nasir (D. W. 4), Muhammad Fazil is described as Muhammad Faqil, and in the following sentence, the woras "in law" between the words "father" and "Sultan Ahmad" have been omit d. This made the statement of D. W. 4 completely incomprehensible. I eventually found the errors by comparing t English and the vernacular record. It is for the afore‑mentione reasons that I have felt constrain ed to observe that the judgments of both the Courts below are not only extremely unsatisfactory but wholly perverse. As a result of the above discussion, I allow this appeal and decree the plaintiff's suit with costs throughout. The plaintiff will pay his share of the mortgage money, that is, one‑fifth of Rs. 800 paid by Muhammad Zahoor Nasir to Amin‑ul‑Mulk (P. W. 4) for the redemption of one of the houses, and one‑fifth of Rs. 300 paid by him to Inayat Ullah (P. W. 3) in 1943, for the redemption of the other house. Mr. Nazar Muhammad, the learned counsel for the plaintiff, has no objection to the passing of the decree in favour of the plaintiff' subject to the payment of the afore‑mentioned amount. A. H. Appeal accepted.