Judgement

Appeal (No. 77 of 1944), by special leave, from a judgment and decree of the Court of the Judicial Commissioner (April 28, 1941), which affirmed a judgment of the Additional Judge of Peshawar (January 17, 1941), which had affirmed a judgment and decree of the Subordinate Judge, 4th Class, Mardan (June 11, 1937).

The following facts are taken from the judgment of the Judicial Committee. This appeal arose out of a suit brought by the appellant against the respondents for possession of certain lands by redemption of a mortgage on paying the amount due on the mortgage, which was claimed to be Rs.8. The mortgage for the sum of Rs.8 which the appellant sought to redeem had not been produced, and there was no evidence that any written mortgage ever existed. The evidence that the respondents were in possession of the lands in suit as mortgagees consisted of—(a) An entry in the jamabandi (register of owners holding) for the year 1885-86 of the village of Mardan, in which under the heading " Name of owners " with particulars " Burhan-ud-din was mentioned as mortgagor and Fazal Shah was mentioned as mortgagee for Rs.8 in King-Emperors coin. The property was stated to be cultivated by the mortgagees themselves, (b) An extract from the record of rights relating to the village of Mardan for the year 1895-96, in which Burhan-ud-din was stated to be mortgagor, and Mst. Motai, 1st wife, Mst. Mustafa, 2nd wife, Mst. Walagai, 3rd wife, and Mst. Ajjo, 4th wife of Fazal Shah were stated to be mortgagees in equal shares, and to be cultivating themselves, (c) An entry in the mutation register for the village of Mardan relating to the years 1925-26, in which Burhan-ud-din was stated to be mortgagor and the said four wives of Fazal Shah were stated to be mortgagees in equal shares.

Mst. Motai, the first wife of Fazal Shah, was the first respondent. The other respondents claimed under Sherdil, to whom the three other wives of Fazal Shah transferred their rights. On June 1, 1935, the appellant purchased from the sons of Burhan-ud-din, the original mortgagor, the equity of redemption in the property for the sum of Rs.25,000. On August 27, 1936, the appellant instituted the present suit in the court of the Subordinate Judge, Mardan, claiming to redeem the mortgage vested in the respondents on payment of Rs.8, and praying for a decree for possession of the land. The suit was valued in the plaint for purposes of court fee and jurisdiction at Rs.8.

The case was tried by the Subordinate Judge of the 4th Class, Mardan. The learned judge raised various issues, of which the first was "Is the plaintiffs suit within time? " He held that the burden of proving that the suit was within time was on the plaintiff; that, inasmuch as under art. 148 of the Limitation Act a suit for redemption must be brought within 60 years from the time when the right to redeem, or to recover possession, accrued, and there was no evidence that the mortgage was for any fixed term, the plaintiff must prove that the mortgage was effected oil or after August 27, 1876, being sixty years before the date of suit, and that he had failed to do. Accordingly, the suit was dismissed.

In appeal the District Judge of Peshawar admitted in evidence under Or.41, r. 27 (1) (b), a further document which he thought might be material, and remanded the case to the lower court under Or.41,

r. 23, for a decision on all the issues. From the order of the District Judge an appeal was brought to the Court of the Judicial Commissioner, North-West Frontier Province. It was argued for the appellant that the trial judge had no jurisdiction to hear the case, which was beyond the limits of his pecuniary jurisdiction. That argument was rejected. It was then held that an appeal lay from the order of remand

Law Rep. 74 Ind. App. 285( 1946- 1947) Mohammad Akbar Khan V. Musammat Motai

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made by the District Judge, and that such order was not justified, since no case for admitting further evidence had been shown. A