The factum of a mortgage can be proved by independent evidence, such as mutation and jamabandi entries, even if the document creating the mortgage is unregistered.

A.N.Grover, J.

1. One Buta Singh was an occupancy tenant of one half of 17 bighas and 6 biswas of land situate in village Phul. The occupancy rights in the remaining half portion belonged to Mst. Karmo. On 18th Jeth 2001 Bk. Buta Singh created a mortgage with possession of his share of the occupancy rights in favour of Sewa Singh. The mortgage is said to have been created by means of pawisht a document which admittedly was not registered. A mutation, however, was effected, date of the same being 10th Jeth 2002 Bk. The entry with, regard to the mortgage was also incorporated subsequently in the jamabandi of the year 2002-2003 (Exhibit P-A. ).

2. Before the mutation took place in favour of Sewn Singh, Buta Singh had died, and Nand Singh, Bachan Singh and Harpal Singh had succeeded to his occupancy rights and were entered as such in the revenue records. Thus Sewa Singh and Joginder Singh to whom Mst. Karmo had made a gift out of her share, came to be recorded in joint possession of the land. It is alleged by Sewa Singh that about the time of numani in the year 2005 Bk. Joginder Singh and others illegally dispossessed Sewa Singh from his one half share in the land.

3. Sewa Singh instituted a suit for recovery of possession on the allegation that he was a mortgagee with possession and that he had been forcibly and illegally evicted. The suit was resisted mainly by Nand Singh. On 20-9-1951, the court of first instance decreed the suit. In appeal the learned District Judge of Barnala affirmed tho decree of the first court. Nand Singh being dissatisfied with the decrees of the Courts below, preferred a petition for revision under Section 115 of the Code of Civil Procedure. The petition has been preferred in view of the provisions contained in Section 49 of the Patiala and East Punjab States Union Judicature Ordinance No. X of 2005 Bk.

4. The principal contention raised on behalf of the petitioner is that the document containing the writing or the nawisht being unregistered, the transaction of mortgage could not be proved an that no other evidence was admissible by way of mutation entries or jamabandi entries to prove the terms of the mortgage. It was urged that the suit had been decreed on the finding that Sewa Singh was the mortgagee and was entitled to possession by virtue of the mortgage in his favour.

It was argued that this matter could be raised in revision because there Was no legal evidence on which the suit could be decreed. The view of the learned District Judge that although the original document was not admissible for want of registration, nevertheless, the factum of mortgage could be proved by independent evidence, was challenged by the counsel for the petitioner and he called my attention to the provisions of Section 49 of the Indian Registration Act.

According to his contention the order sanctioning the mutation showed that the scribe and the witnesses of the writing, nawisht, admitted the same to be correct and it was upon the basis of that writing that the mutation was sanctioned. The jamabandi entries were also made in pursuance of the mutation. As the basis for the mutation in favour of Sewa Singh was a document which was inadmissible for want of registration, consequently the mutation entries as well as jamabandi entries could not be admitted into evidence to prove the mortgage in favour of Sewa Singh. My attention was invited to a decision, of Monroe J. in Babu is Dalip Singh, AIR 1940 Lah. 311.

In that case it was laid down that where an exchange between the parties was not an oral but a written transaction, without production of the written instrument or evidence of its loss, the transaction could not be proved and before any notice was taken of the instrument it must be shown to have been registered. It was also laid down that plaintiffs not being in possession and the onus of showing a good title being on them, it should be held that they had failed to prove the title and their suit for possession fail