1. ' This is a second appeal by the defendant-appellant against the judgment and decree of the Court of District Judge, Muzaffarabad dated 31st October, 1981 ' Azad Khan father of the plaintiffs-respondents and Akram Khan vendor-respondent were two brothers but of whom former is dead and the latter is alive who controverts the suit of the legal heirs of his brother.
2. ' The Survey Nos. 119 and 120 measuring 39 kanals 10 marlas situate in village Barsala were equally owned by the said brothers. The entire land of the above description is now in possession of Sain Khan, appellant.
3. ' It is asserted by the defendant-appellant that the land in suit fell to the share of Muhammad Akram Khan respondent by way of private partition who sold the same to him and so the plaintiffs had nothing in the land in dispute as also through family arrangement they are in possession of even more than their own share jointly owned by both the brothers vide sale-deeds Exh. D. E. Dated 16-5-1964 and Exh, D. C. Dated 28-4-1960. The plaintiffs' suit was to redeem the land in dispute measuring 19 kanals and 15 marlas.
4. ' The plaintiff at first brought a mere suit of redemption of the mortgage of the land in dispute but when during pendency of the suit it came to their knowledge that the land in dispute was sold by Muhammad Akram through sale-deed Exh. D. B. Dated 16-5-1964, the suit was withdrawn with the permission of the Court, to file a fresh suit so as to seek a relief for cancellation of the sale-deed dated May 5, 1964 as well. It was thus that this suit was brought before the Court for cancellation of this sale-deed as well as for redemption of the mortgage. Reply to the suit was evasively made under the joint written statement by the defendants and thus the cancellation of the deed was sought within a period of 3 years under section 91 of the Limitation Act. No knowledge of the subsequent sale-deed could be attributed to the plaintiffs before 29-5-1977 during pendency of their first suit of redemption and who are even minors today and the instant suit was brought on 30-1-1978.
5. ' It was averred by the plaintiffs that survey No, 119 measuring 8 kahals fell to the share of the plaintiffs by way of family arrangement alongwith the entire survey No, 120 measuring 11 kanals and 5 marlas and both these numbers to the extent above were mortgaged by their father to Sain Khan respondent for a period of 10 years on 28-4-1960 through a registered instrument, a certified copy Exh. P. A. Of which was adduced alongwith the plaint.
6. ' Muhammad Akram Khan respondent also filed a separate written statement dated 22-1-1979 in which the alleged mortgage was admitted by him but at the same time it was contended that it was got redeemed by him and thus the entire land was transferred to Sain Khan appellant by him through a registered sale-deed dated 16-5-1964 which is marked as .Exh. D. B. Again, a joint written statement was submitted by both the defendants who denied the mortgage having ever been made by Azad Khan father of the plaintiffs.
7. ' After trying the case, the trial Court dismissed the suit of the plaintiffs as according to it the plaintiffs were unable to substantiate their claim and the land in dispute was found sold by Muhammad Akram Khan defendant to Sain Khan, the vendee. On appeal to the District Judge the suit of the plaintiffs was decreed after having discussed the case in view of the evidence of the parties and law concerned.
8. ' The Sub-Judge was unable to read the evidence correctly ; rather it was not read by him at all. For instance, the first part of the evidence of the Tatwarie in the examination-in-chief was referred to by the Sub-Judge but the second part in the cross-examination was not at all looked into wherein it was clearly stated by the Tatwari' that the land in dispute was also mutated in favour of Sain Khan respondent as a mortgagee and Azad Khan the predecessor of the plaintiffs was shown as a mortgagor.
9. ' There are two sale-deeds of survey Nos.. 119 and 120. By the first sale dated 28-4-1960, half of the land consisting of the above survey numbers was sold by Muhammad Akram Khan to Sain Khan on 28-4-1960 and thus there was nothing left out of his share in these numbers. After this sale, the land) in dispute was obtained by Sain Khan as a mortgagee from Azad Khan vied Exh. P. A. a certified copy of the registered mortgage-deed. This lot of Iand in dispute was admitted to have fallen to the share of Azad Khan by way of private, family arrangement, the possession of which was transferred to Sain Khan mortgagee by the mortgagor Azad Khan. Then a subsequent sale to the mortgage was made on 16-5-1964 by Muhammad Akram Khan responder of the land in dispute. Akram Khan could not have sold in law the share of his brother, namely Azad Khan. The mortgagee was very well aware of the fact that the land in dispute was being held by him as a mortgagee. He thus as a mortgagee could not have legally denied the title of mortgagor or his successors-in-interest till they are allowed by law to exercise their right of redemption within a period of 60 years when the right to redeem or to recover possession accrues. A mortgage is always a mortgage, they say, and it can be redeemed as termed and so long period of limitation prescribed for redemption of mortgage is available to him (mortgagor).
10. Under section 116 of the Evidence Act a mortgagee is estopped in a suit of redemption from setting up right of a third person at the time the mortgage was entered into between the mortgagor and the mortgagee and so by the sale deed Exh. D. B. Which was executed subsequently to mortgage- deed Exh. P. A. C the defendant-appellant is debarred from having any right whatsoever, against the interest of the heirs of the mortgagor. That being so, this sale-deed is null and void on the basis of which no right of ownership accrues to the mortgagee in the property in dispute which is apt to be redeemed by the plaintiffs on payment of the mortgage money. Thus the District Judge was right in making a declaration for cancellation of sale-deed Exh. D. B. Dated 16-5-1964 and passing a decree for possession of the land in suit thereof in favour of plaintiffs-respondents as prayed by them.
11. ' The appeal is without any force and is dismissed with costs.