The main legal point established in the judgment is the admissibility of oral evidence of the mortgage terms under Section 65(c) of the Evidence Act in the absence of the original or certified copy of the mortgage deed.

Hemant Gupta, J.

1. The plaintiff is in second appeal arising out of the judgment and decree passed by the learned Courts below dismissing his suit for possession of land measuring 321 Kanals 13 Marias.

2. The plaintiff and defendants No. 9 to 15 claim to be the owners of land measuring 321 Kanals 13 Marias being the descendants as well heirs and successors of Phulla Singh s/o Partap Singh. Defendants No. 1 to 8 are alleged to be in illegal and unauthorized possession of the suit land. It was pleaded that Sunder Singh, brother of Phulla Singh, has never mortgaged any land with the predecessor-in-interest of defendants No. 1 to 8 and, thus, the plaintiff claimed possession of the suit land as owner. In the alternative, it was pleaded that if it is held that defendants Nos. 1 to 8 are the mortgagees then the plaintiff claimed a decree for possession by redemption of the mortgage.

3. In the written statement, it was pleaded that the plaintiffs have sought possession though the period of redemption has expired and that the defendants are occupying the land in dispute for the last more than 30 years and as such they have become the owners by adverse possession.

4. One of the issues framed was whether the plaintiff and defendants No. 9 to 15 are the owners of the suit land and whether the suit land was mortgaged with defendants Nos. 1 to 8 and they have become owners of land by prescription. Both the learned Courts below have returned concurrent finding of fact on the basis of revenue record Exhibit P-2 and P-3 that the plaintiffs are the owner of the suit land. The Court also considered the entire evidence of the defendants to the effect that the predecessor-in-interest of the plaintiff and defendants No. 9 to 15 had mortgaged the land in West Pakistan with the predecessor-in-interest of defendants No. 1 to 8 and after partition the suit land was allotted to them in lieu of the land left by them in Pakistan. Thus, it was alleged that they are in possession of the same as mortgagees and thereafter they have become owners as plaintiff has failed to redeem the same within the prescribed period. Issue No. 3 which is a material issue reads as under:-

Whether the suit land was mortgaged with defendant Nos. 1 to 8 and they have become the owners of the same by way of prescription, as alleged ? OPD 1 to 8

5 On the said issue, learned trial Court returned a finding on the basis of Exhibit D-1, claim for allotment of land in lieu of land owned and left by Sunder Singh s/o Partap Singh in Pakistan. As per Khatoni Istemal Exhibits P- 13 and P-14, the land in dispute was allotted to defendants No. 1 to 8 or their predecessors-in-interest. The same is possession of the defendants which is evident from the jamabandi Exhibit D-12 for the year 1960-61, Exhibit D-l 1 jamabandi for the year 1972-73. DW4 Bhagat Ram, Clerk of Land Claim Office, Jullunder, has deposed that as per record Sunder Singh s/o Partap Singh submitted claim for allotment of land in lieu of land left by him in Pakistan. The land measuring 23 Acres 3 Kanals was mortgaged with Sunder Singh etc for Rs. 2500/- and another piece of land measuring 27 Acres 6 Kanals 10 Marias was mortgaged with Phulla Singh for Rs. 2500/-. DW5 Bahal Singh defendant No. 1 has deposed that the land in question was owned by Sunder Singh s/o Partap Singh and was mortgaged 6-7 years prior to the partition of the country. The land in question was Banjarand they made it cultivable by installing five tube-wells incurring expenditure to the tune of Rs. 7,000/- on each tube-well. They spent about Rs. 50,000/- to 60,000/- on improvement of land. Learned counsel for the defendants has raised the following argument before the learned trial Court :-

"On the basis of this evidence, it has beenb vehemently argued by Mr. Bedi, the learned counsel for defendants No. 1 to 8, that it is clear from the aforesaid evidence that Sunder Singh son of Partap Singh mortgaged land in Pakistan with the predecessor-in-interes