Case: Tara Masih (Dead) Thru Lrs. & Others Vs. Samuel (Dead) Through Lrs. & Others

1. We have heard the learned counsel for the appellants - plaintiffs. None has appeared on behalf of the respondents - defendants in spite of due service of notice. 2. The plaintiffs suit for declaration of title on the basis that the defendants who had mortgaged the suit land had failed to redeem the same was dismissed by the learned trial Court. To dismiss the claim of the plaintiffs the learned trial Court relied upon the Mutation Entry No.1280 dated 8th August, 1964 and a receipt dated 11th April, 1963 showing payment of the mortgage amount by which the name of the defendants were entered in the revenue records. The learned trial Court accepted the authenticity of the said Mutation Entry notwithstanding the objections of the plaintiffs that the correct mutation entry indicated that only one-sixth (?th) of the mortgaged property was redeemed. However, no material was laid in this regard by the plaintiffs. 3. The first appellate court permitted additional evidence to be brought on record and on consideration of such additional evidence came to the conclusion that the redemption of the mortgaged property was only to the extent of one-sixth (?th) and such partial redemptionwould not operate as a redemption of the entire property. Accordingly, the suit of the plaintiffs was decreed. 4. In Second Appeal the High Court did not go into the aforesaid issue at all. Neither any substantial question of law was framed as mandatorily required under Section 100 of the Code of Civil Procedure, 1908. Taking note of the mutation entry of 1963-1964 in favour of the defendants and that there was a subsequent mutation entry of 1973-1974 in favour of the plaintiffs, which had not been explained in any manner, the High Court thought it proper to reverse the finding of the first appellate Court and dismiss the suit. 5. Having considered the matter we are of the view that the contentious issues particularly with regard to the authenticity of Exhibit D.2 (Mutation Entry No.1280 dated 8th August, 1964) and the question as to whether there was a complete or partial redemption of the mortgaged property did raise substantial questions of law which required the High Court to frame appropriate question/questions. Thereafter, it was incumbent on the High Court to decide on the issues thrown up for consideration by the additional evidence adduced by the plaintiffs before the first appellate Court and the authenticity and genuineness of Exhibit D.2 i.e. Mutation Entry No.1280 dated 8th August, 1964 as claimed by both sides. In the absence of the necessary exercise in this regard by the High Court we are inclined to take the view that the order of the High Court is legally untenable. We, therefore, set aside the same and request the High Court to reconsider the matter in the light of the observations recorded by us in the present order.

Decision:
1[ds]5. Having considered the matter we are of the view that the contentious issues particularly with regard to the authenticity of Exhibit D.2 (Mutation Entry No.1280 dated 8th August, 1964) and the question as to whether there was a complete or partial redemption of the mortgaged property did raise substantial questions of law which required the High Court to frame appropriate question/questions. Thereafter, it was incumbent on the High Court to decide on the issues thrown up for consideration by the additional evidence adduced by the plaintiffs before the first appellate Court and the authenticity and genuineness of Exhibit D.2 i.e. Mutation Entry No.1280 dated 8th August, 1964 as claimed by both sides. In the absence of the necessary exercise in this regard by the High Court we are inclined to take the view that the order of the High Court is legally untenable. We, therefore, set aside the same and request the High Court to reconsider the matter in the light of the observations recorded by us in the present order.