JUDGMENT

1. In this case under the Encumbered Estates Act a preliminary objection was raised that no appeal lay as all the creditors were not impleaded. The appeal is by the debtor-applicant, his claim being that his creditors' debt should be reduced. If he succeeds, it cannot possibly do any harm to, but will rather be in the interest of the other creditors. There is therefore no object in making them parties to the appeal. The preliminary objection fails. Thakur Durga Prasad Singh is the applicant under Section 4, Encumbered Estates Act. The respondents Samsher Bahadur Singh and Bijai Bahadur Singh are the sons and legal representatives of Surajpal Singh mortgagee. They put forward a claim as creditors relying upon the mortgage deed, Ex. A-1, dated 29th October 1907. This was executed by Thakurain Subhraj Kuer in favour of the father of the claimants for Rs. 3000. It was a possessory mortgage relating to specific plots, with the total area of 58 bighas, 6 biswas, 9 dhurs. The gross rental was stated to be Rs. 243-10-11, and the Government revenue Rs. 90-10-11, and the profits Rs. 153. These profits were to be appropriated by the mortgagee towards the interest and the plots were specified with reference to their numbers which would be taken possession of by the mortgagee. The debtor's case was that the mortgagee had not paid the Government revenue: and consequently the amount of the revenue he had had to pay should be deducted from the claim. This' was the sole point urged in the trial Court.

2. The learned Special Judge, after placing the burden of proving that they, had paid the revenue on the creditors mortgagees, remarked towards the end of his short order, "the applicant has not produced any clear evidence showing that he had paid off the revenue of the property mortgaged as he alleges. The presumption is that the mortgagee paid it off." He therefore held that nothing was due to the applicant on the score and decreed the suit for Rs. 3000 with costs and future interest at 4 per cent, per annum. The appellant's learned Counsel argues that the burden of proof was wrongly placed, because his client did not in clear terms plead that he paid this money but he pleaded that because the mortgagee creditor had not paid the revenue, therefore the liability had fallen upon him as lambardar. In our opinion, this plea amounts to a plea of payment on behalf of the mortgagee, whose liability it was under the deed of mortgage to pay the revenue. The burden of proving that he did pay this revenue on behalf of the mortgagee therefore lay upon the appellant. He cannot fall back upon the presumption that as a lambardar he paid all the revenue on behalf of the cosharers, including this mortgagee, because an examination of the revenue 'Khetaunis' copies of which have been filed in Court, from 1332 Fasli to 1344 Fasli = 1925 to 1937, and are Exs. 18 to 28, shows that the co-sharers paid their own revenue individually.

3. The creditors were able to produce receipts for payments totalling Rs. 697-7-6 (not Rs. 583-7-6 as stated in lower Court judgment) during the years in suit. They are not the original mortgagees and the mortgage was made in 1907. It is therefore exceedingly improbable that they would be able to produce all the receipts given to them from the tahsil. Indeed we have one instance of payment made by the mortgagee evidenced by the "Khetaunis" for which no receipt has been produced. As we have said we consider that the burden of proving payment on behalf of the mortgagees lies upon the appellant who raised that plea. The appellant did not produce his private accounts, nor any evidence other than the "Khetaunis" from 1925 onwards, to prove that he had paid off revenue or that he had paid anything on behalf of the mortgagees. We consider therefore that the learned lower Court's decision must stand in respect of the years for which no "Khetaunis" have been produced. That is to say, for all the years prior to 1332 Fasli, no deduction on a