Once a mortgage, always a mortgage; the equity of redemption cannot be lost, and any clog on the equity of redemption is void.

1. This is plaintiffs Second Appeal preferred under Sec. 100 of the Code of Civil Procedure, 1908 (for short the Code) in a suit for redemption of mortgage over an area of 11 Bighas, 15 kathas 6 dhurs in Khata No. 388 of village Baleshra Balahata. This khata belongs to Nurul Mian, -an Mohammad Mian, Abdul Aziz, Ahmad Mian and All Hussain Mian. They executed a mortgage on 23-1-1922 in favour of Lala Sital Lal after obtaining Rs. 600.00 the mortgage money in respect of an area of 4 Bighas and the possessioon was given to the mortgagee There was another oral mortgage dated 1-41934 in favour of same mortgagee Lala Sital Lal for Rs. 500.00 in respect of the remaining area of khata. Sital Lal died and Respondent Nos. 1 to 6 are his heirs. Plaintiffs are the heirs of Abdul Aziz, the mortgagor.

2. The amount of mortgage money was sent by mortgagor to the defendants, the mortgagees but they did not accept it rather they asserted the rights of vendees. They further asserted that they are not mortgagees rather a suit for arrears of rent was filed by Malik Hathuaraj and decree was obtained and land in dispute was put to auction sale and the defendants managed that the property to auction sale was purchased by Guru Gokul Dubey and later the defendants purchased the property in suit and came in possession as vendees hence they would not deliver back possession to the plaintiffs as defendants are no longer mortgagees.

3. The suit was contested by the defendants alleging that they are on the date of the suit not as mortgagees. Earlier mortgage was created in favour of Lala Sital Lal the predecessor - in - interest of the defendants. The suit for arrears of rent was filed by Malik Hathuaraj and it was decreed exparte. The property was put to auction sale as the arrears of rent could not be paid. Lola Sital Lal purchased the property in the name of Guru Gokul Dubey and thereafter from him defendants came in possession as vendee. The defendants are no longer mortgagees. The suit was time barred and liable to be dismissed.

4. The trial court after considering the oral and documentary evidence decreed the suit holding that the defendants were mortgagees and not owners and were liable to redeliver the property to the plaintiffs, the mortgagors. The suit alleged to have been filed by Malik Hathua Raj, for arrears of rent, was fraudulent and fabricated.

5. The defendants - respondents, the mortgagees preferred appeal before the lower appellate court and the same has been allowed and suit has been dismissed without reversing the findings of the trial court and without considering the material evidence particularly the oral evidence considered by the trial court. Against the decree of the 1st appellate court the present second Appeal has been filed by the plaintiffs, the alleged mortgagors.

6. Learned counsel for the plaintiffs appellants urged that the oral evidence including the statements of P.W. 5 Laloo Khan aged about 70 years, P.W. 1 Abdul Karim and P.W. Musafir Ram, has not been considered and that the contradiction in the statement of D. Ws. was not noticed. Normally the appreciation of oral evidence by trial court need not be interfered with as the trial court has advantage to watch demeanor of witnesses. The burden of proof has been placed only the plaintiffs - appellants, whereas both parties led evidence and parties were aware about the pleadings of the other side, in that event the question of burden of proof loses its importance. Lala Sital Lal the original mortgagee was liable to pay rent in view of the covenant recital in mortgage deed itself and he was to supervise the property as a common prudent man, that being so where was the necessity to file a suit for arrears of rent by Malik Hathuaraj. Even if it was so suit must have been filed against Lala Sital Lal. The trial court held that the proceedings in respect of arrears of rent and auction sale, and purchase of land in dispute by Lala Sital Lal were fraudulent and fabricated