Judgement

Appeal (No. 31 of 1929) from a decree of the High Court (January 3, 1924) affirming a judgment of the Additional District Judge of Sheikhupura (March 26, 1923) which reversed a decree of the Subordinate Judge.

The respondents sued to redeem a mortgage of 1880; the defendants were the original mortgagee, and the present appellants who] represented three persons (two of whom were dead) who had purchased the mortgagees interest. The appellants pleaded that they had bought the equity of redemption in or about 1892, and that they had since held the land not as mortgagees but as owners. The Transfer of Property Act not applying in the Punjab the sale and transfer could validly be effected orally.

Five issues were settled, including the following (1) Does the relation of mortgagor and mortgagees subsist between the plaintiffs and defendants Nos. 3 to 7? (4.) Was the land in suit sold to defendants Nos. 3 to 7 by Sultan and Mohammad Bakhsh (the mortgagors)?

At the trial both parties adduced oral and documentary evidence. The appellants relied on, inter alia, a record-of-rights of the village prepared in 1892 under the Punjab Land Revenue Act (XVII. of 1887),

s. 31, the names of those represented by them were entered as owners ; by s. 44 the entries were to be presumed to be correct.

The facts of the case appear from the judgment of the Judicial Committee.

The Subordinate Judge dismissed the suit, holding that the sale was proved having regard to the presumption under s. 44 of the Act.

On appeal the Additional District Judge made a decree for redemption. He held that as the mortgage was admitted, the onus was upon the defendants to prove that it was not subsisting, and that the onus was not discharged, A receipt for the purchase price put forward by the defendants was in his view a concocted document, and consequently he could place no reliance on the rest of the verbal evidence which they adduced; further, he found errors in the entries in the register.

An appeal to the High Court was dismissed by Broadway and Forde JJ., who held that under the Code of Civil Procedure, 1908, ss. 100, 101, the finding that there had been no sale was binding in second appeal.

1929. Nov. 12, 14. De Gruyther K.C. and Wallach for the appellants The question to be determined in the suit was not a question of fact but of inference of law. Consequently the finding of the District Judge was not binding upon the High Court under ss. 100, 101, of the Code of Civil Procedure Ram Gopal v. Shamskhaton (( 1892) L. R. 19 I. A. 228.) ; Chaudhri Satgur Prashad v. Kishore Lal (( 1919)

L. R. 46 I. A. 201.); Dhanna Mai v. Moti Sagar.(( 1927) L. R. 54 I. A. 178.) In the case last cited the question was whether the inference from the facts was that a permanent tenancy existed, which is analogous to the question in this case, which is whether the mortgage was subsisting? Further, the finding was not binding, because, having regard to the presumption which arose under s. 44 of Act

XVII. of 1887, the District Judge was wrong in law in placing the onus upon the defendants. Effect was given by the Board to that presumption in Court of Wards v. Ilahi Bakhsh. (( 1912) L. R. 40 I. A. 18.) The evidence did not displace the presumption so arising.

Dube for the respondents The mortgage being admitted, the question was purely one of fact—namely, had the defendants proved the alleged sale to them. The finding of the District Judge therefore was binding upon the High Court and upon the Board Durga Choudhrain v. Jawahir Singh Choudhri (( 1890) L.R. 17 I. A. 122.) ; Nafar Chandra Pal v. Shukur.(( 1918) L. R. 45 I. A.

183.) That the District Judge had to consider the entries in the record-of-rights did not prevent his finding being one of fact as they were not the foundations of title or rights but merely part of the evidence of the fact to be decided Luchmun Lal Chowdhry v. Kanhya Lal Mowar (( 1894) L. R. 22 I.

A. 51.); Midnapur Zamindary Co. v. Uma Charan Mandal.(( 1923) 29 Cal.