LODHA, J.—This is a plaintiffs second appeal arising out of a suit for redemption of mortgage of a house situated in village Tantoti, District Ajmer.

2. The plaintiffs case is that their ancester Tejpal made a usufructuary mortgage of the house in question for Rs. 400 in favour of Nandlal and Naharsingh ancestors of the defendants by a registered mortgage deed dated 16.2.1960 and that they were entitled to redeem the same on payment of the principal sum of Rs. 400. They also claimed mesne profits at the rate of Rs. 10 per month from the date of suit till the delivery of possession of the house to them. The defendants denied the alleged mortgage. The learned Munsiff, Kekri held that the alleged mortgage was not proved, and consequently dismissed the suit. On appeal by the plaintiffs the judgment and decree by the trial court were upheld by the learned Additional Civil Judge, Ajmer. Consequently, the plaintiffs have come in second appeal to this Court

3. Both the learned counsel for the parties are agreed that there survives only one point for decision in this case and that in whether the plaintiffs have succeeded in proving the mortgage set up by them ?

4. The original mortgage deed is not on record but only a certified copy of the same obtained from the Registration Department has been submitted by the plaintiffs and marked No. 1. The plaintiffs have also produced P.W. 2 Suwalal and P.W. 4 Hariram to prove the existence and contents of the mortgage deed. P. W. 2 Suwalal has stated that the defendant No. 1 Jaisingh and Naharsingh, father of defendant No. 2 showed a stamped document to him for Rs. 400 and Hariram on behalf of the plaintiffs asked Jaisingh and Naharsingh to take the mortgage money and redeem the house and thereupon Jaisingh and Naharsingh demanded the amount due on the basis of other Khatas in addition to the mortgage money. He further stated that the stamped document was in respect of the house in question. P. W. 4 Hariram states that he was present when the mortgage deed was written in the court compound and the same was attested by Chothmal and Nathmal and signed by Tejpal in his presence. He further states that the mortgage deed was scribed by one Munshi. The learned Additional Civil Judge held that since the plaintiffs had not given notice to the opposite party to produce the mortgage deed, secondary evidence of the same was inadmissible. He also held that as required by sec. 68 of the Evidence Act, one of the attesting witnesses to the mortgage deed should have been called for the purpose of proving its execution, and since this has not been done nor the plaintiffs had led evidence to show that both the attesting witnesses are dead, the document cannot be used as evidence.

5. Learned counsel lor the appellant has urged in first instance that the requirement for production of secondary evidence as laid down in sec. 65(a) is fully satisfied and further that the case is covered by the proviso to sec. 66 which lays down that notice shall not be required in order to render secondary evidence admissible when from the nature of the case the adverse party must know that he will be required to produce it or in any other case in which the Court thinks fit to dispense with such notice. In support of his contention he has relied on Dinanath Rai vs. Rama Rai (1), Union of India vs. Indradeo Kumar (2), Baboolal vs. Nathmal (3) and Bahadur Singh vs. Madho Singh (4).

6. In Dinanath Rai vs. Rama Rai(l) it was held that under proviso to sec. 66 no notice shall be required in any case in which the Court thinks fit to dispense with it. It was further held that the Court must be taken to have dispensed with the notice for the reason that the defendant denied that there was or ever had been a mortgage deed at all.

7. In Union of India vs. Indradeo Kumar (2) it was observed that when it was found that the original document was in possession or control of the party taking the objection and it failed to produce it, a notice to the party

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