Shiv Dayal, J.

This is an appeal under Order 43, rule 1(u) from an order of remand passed by the Additional District Judge, Shajapur.

Bapulal, husband of respondent No. 1 and father of respondent No. 2 instituted this suit for redemption against the appellants alleging that the suit property was mortgaged by Harka Chand in favour of Babalram, father of the defendants; repayment of the mortgage money was to be made within 5 years; on the death of Harka Chand his son Motilal sold the equity of redemption on August 30, 1950, to the plaintiffs. The mortgage deed was unregistered. A decree for redemption was claimed on payment of Rs.225. The defendants resisted the suit on several grounds. At first the suit was dismissed on the ground that it did not lie on the basis of an unregistered mortgage deed. The first appellate Court held that the suit was maintainable because a suit for redemption was in substance a suit for possession and the unregistered mortgage deed could be used for the collateral purpose. The case was remanded to the trial Judge. There was no appeal against that remand order.

When the case went back, the question of limitation was agitated and the trial Judge now dismissed the suit as barred by time. The first appellate Court has again reversed that finding and has again remanded the case. It is against this second remand order that the present appeal has been filed by the defendants.

The only question before me is whether the suit is within limitation, and whether the mortgage money accrued due on September 8, 1920, in other words whether the mortgage of 1915 was for five years.

The plaintiff produced a certified copy of the mortgage deed which he obtained from the Court of the District Judge, Shajapur. It appears from this copy that it was a usufructuary mortgage and that five years time was fixed for repayment of the mortgage money. It is urged by Shri Karkare that this copy cannot be read in evidence inasmuch as it is a certified copy of another copy which was included in the municipal record (file No. 58 of Samvat 2003 of the Municipal Committee, Shajapur, which file was summoned in Civil Suit No. 22 of 1949 and in Civil Appeal No. 105 of 1950 between the same parties). The learned counsel argues that after discarding this certified copy, there is no evidence on record to show that the mortgage was for five years. In my opinion, this contention cannot be accepted.

The original mortgage deed of 1915 being unregistered, the plaintiffs could not obtain a certified copy from the Registrar of documents. The fact of mortgage is not specifically denied in the written statement although it is specifically averred in the plaint. Objections in the written statement relate to the invalidity of the mortgage and effect of non-registration. The defendants must, therefore, be held to have admitted by implication the fact of mortgage and existence of a mortgage deed. Moreover, it is alleged in the plaint that in an earlier suit the defendants had pleaded this mortgage in this defence. This allegation too has not been denied. In the absence of any averment in their written statements that the defendants were not in possession of the original mortgage deed, the only presumption is that they were in its possession because it is the mortgagee who is presumed to be in possession of the mortgaged deed. The defendants did not step into the witness-box to say either that they never had the mortgage deed or that it was lost or destroyed. This they did not state even by way of any application either in the Court of first instance or in the first appellate Court or in this Court. From this I infer that the mortgagees are in possession of the original mortgage deed of 1915.

Since the suit is for redemption, from its very nature the defendants knew that the production of the original mortgage deed was necessary. As such, notice for its production was not necessary as provided in section 66 (proviso 2) of the Evidence Act. The plaintiffs a