Allowed¶37

(O & M)Gurmet Singh v. Aate Singh

Punjab & Haryana HC9 Dec 2025RSA/1139/1989

Case brief

AI extract

What is this about?

Redemption of usufructuary mortgage — no limitation ('once a mortgage always a mortgage'); mortgage admitted in written statement and DW1/DW2 testimony — strict proof of mortgage deed unnecessary; admission as best evidence under Section 58 Evidence Act; displaced persons' substitute land in Karnal in lieu of West Pakistan mortgage; Jamabandi entries showing mortgagor/mortgagee; pre-emption compromise acknowledging mortgagee status subject to right of redemption; Punjab & Haryana High Court, RSA, Justice Nidhi Gupta, decided 09.12.2025.

What did the court decide?

Appeal allowed; judgments and decrees of the Courts below set aside; suit of the plaintiff for possession by redemption of the suit land decreed. ¶37

(O & M)Gurmet Singh Vs Aate Singh — Punjab & Haryana HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Appeal allowed; judgments and decrees of the Courts below set aside; suit of the plaintiff for possession by redemption of the suit land decreed.

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Issue for consideration

Whether the suit for redemption of the mortgage was barred by limitation, redemption being sought beyond 30 years of the mortgage. +2 more

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Court's answer

A mortgage with possession is a usufructuary mortgage; there is no limitation for redemption of a usufructuary mortgage — as held by the Full Bench of this Court in Ram Kishan and affirmed by a 3-Judge Bench of the Supreme Court in Singh Ram — it is settled law that once a mortgage, always a mortgage, and it is always redeemable. The courts below' finding that the suit was time-barred was legally untenable.

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Ratio / Principle

Once the factum of mortgage is admitted (in the written statement and by DW1 and DW2), the courts cannot go behind the pleadings to require strict proof of the mortgage deed; the only dispute related to the year of the mortgage, which is immaterial to its existence; the courts below erred in holding the details of the mortgage unproved.

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Key takeaways

Admission is the best evidence (Section 58, Evidence Act); in view of defendant No.1's admission, no further evidence was needed to prove the plaintiff's ownership and the defendants' mortgagee possession over the suit property — relying on Divisional Manager, United India Insurance v. Samir Chandra Chaudhary; Union of India v. Moksh Builders; Hub Lal Singh; Vathsala Manickavasagam; Mritunjoy SeC.ratio¶26
The lower appellate court's enquiry (para 7 of its impugned judgment dated 07.09.1988) that the appellant had not furnished details of the mortgage nor produced the mortgage deed was unwarranted, being beyond the pleadings.ratio¶31

Detailed headnote1 paragraphs

Regular Second Appeal by the successor-in-interest of the original mortgagor against concurrent dismissal of his suit for possession of land measuring 40 Kanals 5 Killas in Village Dachar, Tehsil & District Karnal, through redemption of a mortgage originating in land mortgaged in 1944-45 in Village Sheroka (West Pakistan) by Waryam Singh to Aala Singh for Rs. 1,900, the suit land having been allotted in lieu of the land left behind after Partition. The courts below dismissed the suit on two grounds: failure to prove the details of the mortgage and production of the mortgage deed, and bar of limitation as redemption was sought beyond 30 years. Held: (i) a mortgage with possession is a usufructuary mortgage and there is no limitation to redeem it — once a mortgage, always a mortgage, and it is always redeemable (Ram Kishan, P&H Full Bench, affirmed by a 3-Judge Bench of the Supreme Court in Singh Ram); the finding of time-bar was legally untenable; (ii) the factum of the mortgage was admitted in the written statement and in the testimony of DW1 and DW2; once the factum of mortgage is admitted, courts cannot go behind the pleadings to require strict proof of the mortgage deed, and the lower appellate court's enquiry into mortgage details was beyond the pleadings; (iii) admission is the best evidence (Section 58, Evidence Act); defendant No.1's admission obviated further proof; the respondents' plea of ownership by expiry of the redemption period was itself an admission of the mortgage; Jamabandi entries (Ex.D-4 and Ex.D-6) unrebuttedly showed the plaintiff as mortgagor and the defendants as mortgagee. Appeal allowed; judgments and decrees of the courts below set aside; suit for possession by redemption decreed.

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RSA-1139-1989 (O&M) - 1 -

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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133 RSA-1139-1989 (O&M) Date of decision: 09.12.2025

Gurnet Singh

...Appellant(s)

Vs.

Sh. Aala Singh deceased represented by Sh. Gurdial Singh (died) through his LR and others ...Respondent(s)

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CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA

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Present:Mr. Amit Jain, Senior Advocate with Mr.Parit Aggarwal, Advocate for the appellant.

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Mr. Dinesh Ghai, Mrs. Amita Arora and Mr. Karamjit Singh, Advocates for respondents No. 1 to 5 and 7.

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NIDHI GUPTA, J.

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The plain/0 is in second appeal against the concurrent judgments and decrees of the learned Courts below, whereby suit 5led by the appellant for possession by redemp/on of suit land measuring 40 Kanals 5 Ki8as, has been dismissed by both the Courts below.

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It was the pleaded case of the appellants that Waryam Singh son of Lakhbir Singh was owner in possession as “KASHT HISSEDARI” of land measuring 9K 18M in khasra No. 3816 and land measuring 5K 2M in khasra No. 3815 situated in village Sheroka Tehsil and District Shekhupura in West Pakistan. It was pleaded that Waryam Singh had mortgaged these two khasra Nos. total land measuring 14K in favour of Aala Singh son of Shamir Singh in 1944 for a considera/on of Rs.1,000/-. Waryam Singh had

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died before par//on. Thus, muta/on of inheritance was sanc/oned in favour of his widow Dhan Kaur, and Gurdial Kaur widow of Kundan Singh and daughter-in-law of the deceased Waryam Singh. Dhan Kaur had sold her share of land in favour of Tarlok Singh etc. who had transferred their shares in favour of present plain/0 Gurnet Singh, who is now the mortgagor. It was also pleaded that the original mortgagee Aala Singh had also died. Defendant Gurdial Singh, being son of Aala Singh, was in possession of the suit land as mortgagee. ADer par//on, successor-ininterest of Waryam Singh was allo8ed 40K land in village Dachar, Tehsil and District Karnal in lieu of above land leD by him in V. Sheroka, West Pakistan.

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It was further pleaded in the plaint that though total amount of mortgage money was Rs.1,900/- but half of the mortgaged land belongs to the plain/0; whereas the other half belonged to Gurdial Singh, defendant who had obtained a decree of speci5c performance of Agreement to Sell from Civil Court, Karnal against Gurdial Kaur daughterin-law of Waryam Singh; in pursuance to which Sale Deed dated 19.03.1979 was executed in favour of Gurdial Singh. However, a compromise dated 31.07.1980 had been arrived at between the plain/0 and Gurdial Singh/defendant in a pre-emp/on suit 5led by the plain/0 against him. Thus, whole mortgaged land is to be got redeemed by the plain/0. It is categorically pleaded that out of total mortgage amount Rs.1,900/- one third is to be reduced in accordance with Sec/on 16 of the Displaced Persons Debt Adjustment Act. The plain/0 has claimed his /tle

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through Sh. Tarlok Singh, Gurbaksh Singh, Lal Singh and Wassan Singh sons of Takhat Singh, who have transferred this land to the plain/0 vide Civil Court decree dated 11.3.1977 and muta/on has been sanc/oned vide No.3549 dated 27.8.1979. Thus, the plain/0 is en/tled to 5le the present suit. It is further pleaded that the plain/0 has requested the defendant to admit his claim and to redeem the land on payment of Rs.1266.67 paise i.e. 2/3rd of the total original mortgage amount but they have refused to do so. Hence, present suit was 5led on dated 27.11.1979.

¶22

Upon no/ce, defendants had resisted the suit by 5ling wri8en statement in which it was admi8ed that since the date of mortgage, the mortgagees are in possession of the suit property which was earlier in possession of their predecessor-in-interest Aala Singh. It was contended that as mortgage had not been redeemed within the prescribed period of limita/on, thus, the answering defendants were in possession of the suit land as owners. Thus, suit of the appellant was contested by the defendants only on the ground of being /me barred.

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Appellant had 5led replica/on controver/ng the pleas taken in the wri8en statement and reasser/ng those in the plaint as correct.

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On the basis of the pleadings of the par/es, following issues

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were framed vide order dated 03.05.1982: -

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“1. Whether Waryam Singh was owner in possession of the suit land ?OPP

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2. Whether Waryam Singh mortgaged the suit property in favour of defendant No.1 if so on what terms and condi ons? OPP

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3. Whether the suit is me barred?OPD

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4. Whether the suit property cannot be redeemed?OPD

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5. Whether the suit is bad for mis-joinder and non-joinder of necessary par es?OPD

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6. Whether the plain ) is estopped from *ling the present suit by his own act and conduct?OPD

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7. Whether the suit is legally maintainable?OPD

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8. Relief.”

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Upon appraisal of the pleadings and the evidence led by the par/es, the ld. Sub Judge 1^st Class, Karnal had dismissed the suit of the plain/0 with costs vide judgment and decree dated 08.11.1986. The Civil Appeal 5led by the plain/0 was dismissed by the learned Addi/onal District Judge, Karnal vide judgment and decree dated 07.09.1988. Hence, the present second appeal by the plain/0.

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It is inter alia submi8ed by learned Senior Counsel for the appellant that the sole plea of the defendants that suit of the plain/0 was barred by limita/on as redemp/on of mortgage land could not be sought beyond period of 30 years, is liable to be outrightly rejected in view of the Full Bench judgment of this Court in Ram Kishan v. Sheo Ram, (P&H)(FB) :

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Law Finder Doc Id # 135963; wherein it is held that in usufructuary mortgage of land, there is no 5xed period of redemp/on, and that mortgagees do not become owners by prescrip/on, and that mortgage is always redeemable.

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9. It is submi8ed that the said view has been upheld by a 3-

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Judge Bench of the Hon’ble Supreme Court in Singh Ram v. Sheo Ram (SC)

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: Law Finder Doc Id # 603373 . Thus, plea of bar of limita/on in redeeming

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the mortgage is no longer available to the defendants.

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Learned Senior Counsel for the appellant further submits that

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the appellant has been non-suited by the Courts below on the ground that appellant has not been able to prove the mortgage. Learned Senior Counsel contends that in view of the fact that mortgage has been admi8ed by the respondents in their wri8en statement to the suit, the appellant could not have been nonsuited on this ground. It is submi8ed that in this circumstance, it was not incumbent upon the appellant to produce the cer/5ed copy of the Mortgage Deed. In support of his conten/on, learned Senior Counsel relies upon judgment of this Court in Ram Rakhi v. Bimla Devi, (P&H) : Law Finder Doc Id # 37489. It is submi8ed that thus, both the Courts below have erred in holding that the appellant has not been able to iden/fy the land and prove that present suit land situated in village Dachar, Tehsil and District Karnal is the land allo8ed to the predecessor-in-interest of the appellant in lieu of land leD behind by him in West Pakistan. Moreover, the said 5nding is beyond pleadings.

¶47

Learned Senior Counsel for the appellant further submits that in so far as the factum of mortgage was concerned, the same was admi8ed and having been covered under issue No.1 was duly recorded by the learned Trial Court in favour of the appellants. The learned Appellate Court without adver/ng the facts of the case, in an indirect manner seemed to have set aside the 5nding on issue No.1 as well. It is only issue

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No.2 which had gone against the appellants on various details of the mortgage not coming forth as per discussion of the learned Trial Court. While deciding the issue aforesaid the learned Appellate Court did not advert to various suits inter-partes and otherwise, where all-through factum of mortgage was admi8ed. The cases replete of various li/ga/ons as also the admissions recorded in the earlier pleadings and judgements were duly proved but no reference at all of such evidence has been made resul/ng into apparent miscarriage of jus/ce.

¶51

Learned Senior Counsel for the appellant lastly submits that the learned Appellate Court has not given any separate 5nding on the issues framed by the learned Trial Court. The ma8er has been taken in lumpsum and it is because of this reason that the various documents proving the case of the plain/0s, have been lost sight of by the learned Appellate Court. The procedure adopted by the 5rst Appellate Court in dealing with the en/re ma8er without touching respec/ve issues, is wholly illegal and has prejudiced the case of the appellants.

¶52

It is accordingly prayed that the present appeal be allowed; and the impugned judgments and decrees of the Courts below be set aside.

¶53

Per contra, ld. counsel for the defendants refers to elaborate 5ndings of both the Courts below to the e0ect that plain/0 was unable to prove as to which land was mortgaged; what were the terms and condi/ons of the mortgage; what was the amount of the mortgage etc. It is contended that plain/0 has not led any evidence to prove that the

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alleged mortgage by Waryam Singh in Pakistan is the same land which is presently in possession of the defendants. It is submi8ed that in these circumstances, suit of the plain/0 has been correctly dismissed by both the Courts below.

¶57

As regards plea of limita/on, learned counsel for the respondents very fairly admits that in view of the Full Bench judgment of this Court in Ram Kishan (supra), and of the Hon’ble Supreme Court in Singh Ram (supra), said defence is no longer available to the respondents. He accordingly prays for dismissal of the present appeal.

¶58

No other argument is raised on behalf of the par/es. I have heard learned counsel and perused the case 5le alongwith Lower Court Record in minute detail. I 5nd merit in the submissions advanced on behalf of the learned Senior Counsel for the appellant.

¶59

The factual founda/on of this case commences from Waryam Singh s/o Lakhbir Singh, predecessor in interest of the plain/0, who was the owner-in-possession as ‘Kasht Hissedari’ of land measuring 14 kanals situated in Village Sheroka, District Sheikhupura (now in West Pakistan), as per Jamabandi 1946-47. In the year 1944-45, Waryam Singh mortgaged the said land with Aala Singh s/o Shamsher Singh, the predecessor of the defendants, for a considera/on of Rs. 1900. The mortgage was with possession; and this fact is admi8ed in the wri8en statement and also aNrmed by defence witness DW2 Santokh Singh, who stated that his father Aala Singh had been in mortgagee-possession for decades prior to par//on. Waryam Singh died approximately one year prior to par//on, and his rights

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devolved upon his widow Dhan Kaur and daughter-in-law Gurdial Kaur widow of Kundan Singh/predeceased son of Waryam Singh, as per their muta/on of inheritance. In lieu of the land leD in Pakistan, the family of the mortgagor was allo8ed subs/tute land/suit land in India at Village Dachar, Tehsil and District Karnal as reOected in muta/on Nos. 3549 and 3550 (Ex.P- 5 to Ex.P-9) and in the tes/mony of PW-5 (Patwari) as well as PW-4 from Rehabilita/on Department, who con5rmed that the land was allo8ed speci5cally in exchange for the mortgaged land leD in Pakistan.

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ThereaDer, Dhan Kaur vide Sale Deed dated 30.1.1964/Ex.P-1 had sold her half share of land to Tarlok Singh, Gurbaksh Singh, Lal Singh, Ajit Singh and Wassan Singh, sons of Takhat Singh; who further transferred their rights to the present plain/0.

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Even Gurdial Kaur vide Sale Deed dated 30.1.1964/Ex.D-1 had sold her half share of land to Tarlok Singh, Gurbaksh Singh, Lal Singh, Ajit Singh and Wassan Singh, sons of Takhat Singh. However, the record further reveals that Gurdial Kaur had also executed an Agreement to Sell dated 2.7.1963, in favour of Gurdial Singh/present defendant. As sale deed was not executed, Gurdial Singh/defendant had brought a suit no.44 for speci5c performance against Gurdial Kaur and Tarlok Singh, Gurbaksh Singh, Lal Singh, Ajit Singh and Wassan Singh, sons of Takhat Singh; which was decreed by the SJIC, Karnal on 29.3.1965. The appeal 5led by the respondents/defendants thereto, was dismissed by this Court on dated 19.1.1977. Pursuant to which Sale Deed dated 19.3.1979 was executed in favour of Gurdial Singh present defendant.

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The record further reveals that the appellant/plain/0 Gurnet Singh, successor-in-interest of the original mortgagor, ins/tuted suit for possession by redemp/on of agricultural land measuring 40 kanals comprised in Khewat No. 477, Khatauni No. 497, Rectangle 32 and 46, situated in Village Dachar, Tehsil & District Karnal. The suit was 5led on payment of Rs. 1,266.67, represen/ng 2/3rd of the original mortgage amount. At this stage, a compromise dated 31.07.1980 was entered into between the present plain/0 and Gurdial Singh/present defendant no.1 in the pre-emp/on suit between them; and defendant No.1, admi8ed that the suit be decreed, and defendant would con/nue as a mortgagee subject to right of redemp/on. The land was thus, transferred by a decree in favor of plain/0 who became the lawful successor to the equity of redemp/on.

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Despite all of the above facts being on record, the suit of the appellant has been dismissed by both the Courts below on two speci5c grounds: a) that the Appellant had failed to prove the speci5c year of the mortgage; and b) that the suit was /me-barred as /me for redemp/on stood expired. The 5nding on limita/on is prima facie unsustainable and contrary to the statutory scheme. Both courts proceeded on the premise that the mortgage took place in 1944, and that the suit is /me-barred. This is legally untenable as Mortgage with possession cons/tutes usufructuary mortgage and there is no limita/on to redeem a usufructuary mortgage; as held by a Full Bench of this Court in Ram Kishan (supra) and aNrmed by a 3-Judge Bench of the Hon’ble Supreme Court in Singh Ram (supra). Thus, it

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is a se8led principle of law that once a mortgage always a mortgage and is always redeemable.

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As regards, proving of the mortgage, besides the facts already enumerated hereinabove, both courts below have egregiously erred in holding that the details of mortgage were not proved as, the existence of the mortgage was not only pleaded in the plaint but categorically admi8ed by the defendants in their wri8en statement, and by DW1 and DW2 in their tes/mony. The defendant no.1 Gurdial Singh in his wri8en statement has admi8ed as follows: –

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“2(b). That para-No. 2 (b) as stated is wrong and denied. However, the land has throughout been in possession of the original mortgage Shri Aala Singh since the date of mortgage and a6er his death, his legal heirs are in possession of the land in ques on. The land has since not been redeemed within the prescribed period of limita on. The right of redemp on is no more available to the present plain ). The suit is not within me.

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2(e). That para No. 2 (e) of the pe on as stated is wrong and hence denied. The total land subject ma9er of mortgage is 40 K. The suit has not been *led for the en re land. The suit deserves dismissal on this score alone.

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2(f). That para No. 2 (f) is wrong and hence denied as alleged. The sale in favour of defendant has since been preempted by the plain ). The suit in the present form is not legally maintainable. Other allega ons contained in this para are also denied.” (Emphasis added)

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Further, Gurdial Singh/DW1/defendant no.1 in his deposi/on

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has stated as follows:-

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“The land in dispute is 05 Killa. That my father Aala Singh had taken this land on mortgage 6-7 years before establishment of Pakistan. A6er mortgage of said land, Aala Singh was in possession. Un l Aala Singh was alive he had possession over said land. A6er establishment of Pakistan abovesaid mortgaged land was allo9ed to Aala Singh, which is the land in dispute. A6er death of Aala Singh, we are in possession. A6er mortgaging the land, Waryam Singh, or his legal heirs or the plain ) were never in possession over said land. We are in possession as owner over suit property. Mortgaged land was

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never redeemed.

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¶84

I cannot tell the Number of land orally. At this me I have no any Jamabandi and document regarding said land. We have documents in of Pakistan, but cannot show. We had got entered said land with Area Patwari about 34-35 years ago. I don't know name of Patwari, Tehsil. I have no any document regarding entry of land. It is wrong to suggest that I am deposing falsely and I have no concern with disputed land.” (Emphasis added)

¶85

Even DW2 Santokh Singh has stated as follows:-

¶86

“I was known to Aala Singh. Aala Singh had taken land on mortgage 6-7 years before establishment of Pakistan. Earlier, Aala Singh was in possession. A6er establishment of Pakistan, the land in dispute was allo9ed to Aala Singh. A6er death of Aala Singh, his legal heirs are in possession over abovesaid dispute land.

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Mortgage Deed was not produced before us. Waryam Singh was mortgagor and he has died. It is correct that Dhan Kaur and Gurdial Kaur would legal heirs of Waryam Singh. It is wrong to suggest that Muta on of the land did not enter on the name of Aala Singh. It is correct that a6er death of Aala Singh, Gurdial had possession. I have no informa on about mortgage. It is wrong that Aala;'s son is heir of mortgaged land. I don't know that the land of Trilok was allo9ed to whom? It is wrong that I have no personal informa on about this case and I am deposing falsely.”

¶91

From the above, it is clear that following facts were admi8ed by the defendants that: Waryam Singh was owner in possession in Pakistan; He mortgaged land to Aala Singh; mortgage was with possession; that in

¶92

lieu of land mortgaged by Waryam Singh in Pakistan, present Suit land was allo8ed. Thus, the observa/on of the learned Courts below that mortgage terms were not proved is misplaced, because once mortgage is admi8ed, the court is required only to determine en/tlement to redeem, all of which stood proved. In any event, the only dispute related to the year, which is immaterial for determining the existence of the mortgage. Once the factum of mortgage is admi8ed, courts cannot go behind the pleadings to require strict proof of the mortgage deed. Even the Iden/ty of the mortgaged land stands fully established. The defendants never disputed the iden/ty of the land under mortgage. Documents Ex P1 and Ex.D1 speci5cally proved the details of the land under mortgage. The fact regarding pre-emp/on suit were also admi8ed in the wri8en statement. The defendants have categorically admi8ed that they came to be in possession of present suit

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land measuring 40K situated in village Dachar Tehsil and District Karnal as mortgagee in con/nua/on of the mortgage executed by Waryam Singh predecessor-in-interest of the plain/0 in favour of Aala Singh, predecessorin-interest of the defendants. These facts have been categorically, unambigously, and unequivocally admi8ed by the defendant Gurdial Singh as above.

¶96

Needless to say, it is se8led posi/on in law that admission is the best evidence. In the present case, in view of the admission of defendant No.1/Gurdial Singh, no further evidence was needed to prove the factum of ownership of the plain/0 and possession and mortgage of the defendants over the suit property. As per Sec/on 58 of the Evidence Act, admission is the best evidence. The Hon’ble Supreme Court in Divisional Manager, United India Insurance Co. Ltd. & anr. vs. Samir Chandra Chaudhary (SC) Law Finder Doc Id # 83537 , has held that an “ admission of fact is good evidence” against the person admiQng the same unless it is legally explained away to be made under a bona 5de mistake. That is not so in the present case.

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The Hon’ble Supreme Court in Union of India vs. Moksh Builders and Financiers Ltd and others 1977 AIR, SC 409, Law Finder Doc Id # 105456 has held that “ admissions duly proved are admissible evidence irrespec ve of whether that party making them appeared in the witness box or not. ”

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Further in Hub Lal Singh (D) represented by LRs and Another

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vs. Sheo Balak Singh and others, 2014 (10), RCR (Civil), 1573, Law Finder

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Doc Id # 470026 Allahabad High Court has held that “ An admission has been considered to be best evidence for the reason that sec on 58 of the Evidence Act, 1872 states that the fact admi9ed need not be proved. An admission in pleading means admission of an averment by the opposite par es. However, party making admission cannot take advantage of it, and on the contrary, the party in whose favour it is made, may get its bene*t. ” 29. Reliance may also be placed upon judgment of the Hon’ble Supreme Court in Vathsala Manickavasagam v. N. Ganesan (SC) 2013(4) RCR (Civil) 22, , Law Finder Doc Id # 461299 wherein it is held as under:-

¶103

“24. As far as the principle to be applied in Sec on 17 is concerned, the Sec on as it reads is an admission, which cons tutes a substan al piece of evidence, which can be relied upon for proving the veracity of the facts, incorporated therein. When once, the admission as noted in a statement either oral or documentary is found, then the whole onus would shi6 to the party who made such an admission and it will become an impera ve duty on such party to explain it. In the absence of any sa sfactory explana on, it will have to be presumed to be true. It is needless to state that an admission in order to be complete and to have the value and e)ect referred to therein, should be clear, certain and de*nite, without any ambiguity, vagueness or confusion. In this context, it will be worthwhile to refer to a decision of this Court in Union of India v. Moksh Builders and Financiers Ltd. and others, AIR 1977 Supreme Court 409 wherein it is held as under :

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"It has been held by this Court in Bharat Singh v. Bhagirath [1966] 1 SCR 606 that an admission is substan ve evidence of the fact admi9ed, and that admissions duly proved are "admissible evidence irrespec ve of whether the party making them appeared in the witness box or not and whether that party when

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appearing as witness was confronted with those statements in case it made a statement contrary to those admissions." In taking this view this Court has no ced the decision in Ajodhya Prasad Bhargava v. Bhawani Shanker, AIR 1957 Allahabad 1 (FB) also."”

¶108

The Hon’ble Supreme Court in Mritunjoy SeC v. Jadunath

¶109

Basak (D) by Lrs. (SC) 2011 AIR SC (Civil) 1418, has held as under:-

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“16. In the light of Respondent's own admission, it leaves no doubt in our mind that it will hold good as long as it was not withdrawn or clari*ed by him. It is too well se9led that an admission made in a court of law is a valid and relevant piece of evidence to be used in other legal proceedings. Since an admission originates (either orally or in wri9en form) from the person against whom it is sought to be produced, it is the best possible form of evidence. In the factual context of this case, it may also be noted here that the 'rent receipts' issued by Smt. Kamala Se9, the predecessor-in-interest of the Appellant herein, being the documentary evidence adduced by the Respondent to prove his conten on that the tenancy was as per the Bengali Calendar, was never substan ated by the witness' tes mony of the abovenamed Smt. Se9 in the course of hearings.”

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Thus, in view of the above noted factual and legal posi/on, the enquiry conducted by the learned Lower Appellate Court in para 7 of its impugned judgment dated 07.09.1988 to the e0ect that appellant had not furnished details of the mortgage and not produced the mortgage deed, is not warranted being beyond pleadings. Rather, as already discussed above in detail, in the wri8en statement the defendants had admi8ed the mortgage. DW1 has admi8ed in his evidence that defendant is in

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possession as mortgagee for the land leD behind by his predecessor-ininterest in Pakistan and mortgage has not been redeemed /ll date. Similarly, DW2 has claimed ownership of the suit land as mortgagee only on the ground of limita/on.

¶115

Finding/reasoning of the learned Courts below that cer/5ed copy of the Mortgage Deed was not produced is liable to be rejected in view of the pronouncement of law in this regard by this Court in Ram Rakhi (supra); wherein it is held as under: -

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“4. A6er hearing the learned counsel for the par es, I *nd no merit in the appeal. The primary argument of Mr. Gopi Chand, learned counsel for the appellant, that as the mortgage deed was not proved, the property could not be iden *ed, to my mind, is without merit. A cumula ve reading of the wri9en statement as also Exhibit P-9 which is a reply to the no ce Exhibit P-6 clearly makes out that the factum of the mortgage having been executed was admi9ed and the only rider placed on its redemp on was that as she had spent a sum of Rs. 16,000/- in reconstruc ng the shop a6er it had been demolished during the emergency, she was en tled to be reimbursed this amount. In the face of this admission, I am of the opinion that the mere fact that the original mortgage deed in ques on had not been produced in Court would not have any adverse e)ect on the case of the respondents. Mr. Gopi Chand's second argument that the admission was to be read as a whole and not be torn asunder may be meritorious but this ques on does not arise in the facts of the case. It is to be noted that the primary purpose for denying the admission was that the iden fy of the shop in ques on could be disputed. However, even in the wri9en statement, the only dispute was with

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regard to the dimensions of the property and there was not even a sugges on that the iden ty of the property was disputed. To my mind it appears that when the dimensions of the shop are disputed, it cannot be said that the iden ty of the property had been disputed. Moreover, from a reading of the admission as a whole, it cannot be lost sight of that it had been admi9ed that the shop in ques on had been mortgaged but as already indicated above it was sought to be redeemed only on the payment of Rs. 16,000/- which had been spent a6er it had been demolished during the emergency. Even this asser on was untenable as no evidence had been produced by the appellant with regard to issue No. 5. i.e. with regard to the amount that she had spent on the shop in ques on and the trial Court accordingly gave a *nding against her on that issue.”

¶120

Furthermore, the very fact that the respondents are claiming ownership by way of expiry of redemp/on period, in itself amounts to admission of the mortgage. The fact that mortgage was with possession is con5rmed from Ex.D4, Ex.D6 revenue entries. It is not disputed that /ll date in the revenue record Jamabandi for the year 1970-1971/Ex.D-4, and Jamabandi for the year 1980-1981/Ex.D-6, plain/0 is shown as mortgagor and defendants as mortgagee. Thus, from the above, it is clear that the defendants are in possession of the suit land as mortgagee.

¶121

It may lastly be pointed out that Dhan Kaur widow of Waryam Singh had executed Sale Deed dated 30.01.1964 Ex.P1 in favour of Tarlok Singh, Gurbaksh Singh, Lal Singh, Ajit Singh and Wassan Singh, sons of

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Takhat Singh (vendors of the present plain/0) for an amount of Rs.15,000/-; wherein in Ex.P-1, Dhan Kaur has categorically men/oned as follows:-

¶125

“.............Out of this, 40 Kanal of land comprised in Khewat No. 334 is under mortgage with possession with Aala Singh son of Shamsher Singh son of Pradhan Singh, resident of Village Dachaur, Tehsil and District Karnal to the extent of my share and half share of the owner Smt. Gurdial Kaur. The land bearing Khasra No.31 31//21, 32//24, 25, 19//2 are under mortgage and in possession from both of us to (Labh Singh son of Assa Singh, resident of Village Dachaur, Tehsil and District Karnal). Both these mortgage deeds are for Rs. 1900/approx.................”

¶126

Similarly, Gurdial Kaur, widow of Kundan Singh, son of Waryam

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Singh has also executed Sale Deed dated 30.01.1964/Ex.D1 wherein she too had men/oned as follows:-

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“.............Out of this, 40 Kanal of land comprised in Khewat No. 334 is under mortgage with possession to Aala Singh son of Shamsher Singh son of Pradhan Singh, resident of Village Dachaur, Tehsil and District Karnal to the extent of my share and half share of the owner Smt. Dhan Kaur. The land bearing Khasra No.31//21/1, 32//24, 25, 19//(1-2) (4-10) are under mortgage and in possession from both of us (Labh Singh son of Assa Singh, resident of Village Dachaur, Tehsil and District Karnal). Both these mortgage deeds are for Rs. 1900/approx.................”

¶129

As already men/oned above, in respect of share of Gurdial

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Kaur, defendants had 5led a civil suit for speci5c performance of Agreement

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to Sell executed by Gurdial Kaur in favour of the defendants. Suit of the

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defendants was decreed for speci5c performance vide judgment and decree dated 29.03.1965; in pursuance to which Sale Deed was executed through Court on 19.03.1979. However, in the mean/me, plain/0 had 5led suit for

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preemp/on in exercise of its preemptory rights. In the said proceedings, a compromise dated 31.07.1980 (available at page 85 of the LCR) was entered into between the present plain/0 and the present defendant, as per which, it was agreed between the par/es that respondent will con/nue to remain in possession of the suit property as mortgagee subject to plain/0’s right of

¶136

redemp/on. It may be men/oned that the said decree dated 29.03.1965, Sale Deed dated 19.03.1979, and Compromise dated 31.07.1980 were sought to be brought on record by the plain/0 by way of addi/onal evidence. However, the said applica/on of the appellant was dismissed by the First Appellate Court while dismissing the suit vide judgment dated 07.09.1988. Nonetheless, the said facts have not been denied by the respondents at any stage.

¶137

Given the above discussion and posi/on in law, the present Appeal is allowed; and judgments and decrees of the Courts below are set aside; and suit of the plain/0 for possession by redemp/on stands decreed.

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