1. SHAFIUR RAHMAN, 3.-Leave to appeal was granted to the defendants to examine whether in view of the entries of Mutations Nos. 9625 and 9626 attested on 28-6-1962 the mortgage in favour of the plaintiff-respondent created in 1911 did not stand redeemed and a fresh mortgage had not come into existence the period for redeeming which had not expired under the Limitation Act.
2. ' Awal Badshah, the predecessor-in-interest of the respondent, instituted a civil suit in the year 1974 seeking a declaration that he had obtained land measuring 65 Kanals 4 Marlas in village Patti Karak, Tehsil Karak, District Kohat, on the basis of a mortgage Mutation in his favour (Mutation No, 755 attested on 11-6-1911). He had remained in undisturbed possession of the mortgaged land as its mortgagee for over 60 years and that owners-mortgagors had lost the right to redeem it. He had, therefore, become its owner and sought a declaration with regard to its ownership. With the plaint he also filed an attested copy of the mortgage-mutation which was attested in 1911. In resisting the suit the appellants took up the pleas that the plaintiff had no cause of action as the mortgage was not over 60 years, that he was estopped from instituting the suit, and that the suit being in violation of the Land. Reforms Ordinance of 1972 was not maintainable. As regards the merits of the claim, it was stated that as additional amounts had been taken and the mortgage-charge. Had been periodically increased, there was no question of the mortgage becoming time-barred. The following issues were framed by the trial Court on the pleading of the parties :- "(1) Whether the plaintiff has a cause of action.
(2) Whether the plaintiff is estopped by his own conduct to bring the present suit.
(3) Whether the suit has been instituted by the son of the plaintiff and not by the plaintiff and is, therefore, fraudulent and liable to be dismissed.
(4) Whether the suit has been instituted in accordance with Land Reforms Ordinance, 1972, if so, its effect.
(5) Whether the plaintiff has become the owner of the suit land by prescription and the defendants have no rights whatsoever to remain (sic) the same and the revenue entries are liable to be corrected to that effect.
(6) Relief."
3. ' The trial Court held that the plaintiff had a cause of action, that he was not estopped by his conduct, that the suit was in proper form and was not bit by the Land Reforms Ordinance, and that, in fact, the increases in the mortgage-charge without interrupting the possession or redeeming the mortgage were not of avail to the contesting defendants and the plaintiff had become the owner of the land by prescription and the mortgagors-owners had lost the right to redeem. Hence the suit was decreed.
4. ' The appellants then filed their first appeal in the Court of the District Judge and in the memorandum of appeal they stated that the mutations on which they relied and which were attested in 1962 had not been placed on record and admitted in evidence due to the omission of the counsel representing them. They were ready to place them on record. These were the two Mutations of No, 9625 and 9626. However, no effort was, in fact, made to place them on record or to get them admitted in evidence. The learned District Judge in appeal affirmed all the findings of the Civil Judge and held that the right to redeem the mortgage had become time-barred and the original mortgage of 1911 existed.
5. ' The appellants then filed a revision petition in the High Court and significantly the most important and the only ground urged therein was what was contained in paragraph 2 in the memorandum of the revision petition which is reproduced hereunder "(2) That the findings of both the Courts below on issue No, 5 are the result of, it is very respectfully submitted, misreading the evidence and their failure to apply mind to the facts as to when and through whom the plaintiff became the mortgagee of the suit land. There is no material on the record that the plaintiff is the successor-in-interest of the original mortgagee or of subsequent mortgagee in whose favour the mortgage was created more than .60 years prior to the institution of the suit. It was essential to take this aspect of the case into consideration when, as the record of the case will show, the land was mortgaged, to different persons from time to time. The mere fact that the land has remained subject to mortgage or mortgages to be more precise, for more than 50 years will not give a cause of action to the plaintiff to institute the suit to get himself declared as owner and the defendants disentitled to redeem the mortgage."
6. ' There was no mention of the two mutations referred to in the memorandum of appeal before the District Judge. The learned Judge in the High Court took note of this ground and held that no such ground was taken during the trial or in the memorandum of appeal before the District Judge and found no merit in the same. Hence the revision petition was dismissed in limine.
7. ' It was with the petition for leave to appeal that the appellants filed the copies of these two mutations and made them the mainstay of their case. It was by reference to these documents and the entries therein that leave to appeal was granted by this Court for examining whether one of these Mutations had not the effect of redeeming the mortgage and the other of bringing into existence another mortgage totally and completely different from the one created in 1911 and redeemed in 1962.
8. ' The learned counsel for the respondent has taken up a preliminary objection to the very admissibility of these documents and has contended that a new case is sought to be made out on the basis of them. He has further contended that the specific date of the coming into existence of the mortgage was given by the plaintiff in the plaint and in response to it, the appellants had not pleaded at any stage the redemption of that mortgage and the creation of a fresh one in 1962.
9. Their case in the written statement was that on account of the additional amounts taken on the same mortgage there was a novation of the contract whereby the period of limitation got extended. In the absence of the specific plea and the documents which were not placed before the trial Court, the first appellate Court on the revisional Court, it was highly unfair that the appellants should confront the respondent with an altogether new case at this stage.
10. ' The learned counsel for the appellants, in reply, contended that the appellants had, in fact, disclosed all that was necessary to disclose in the written statement by saying that the mortgage had not become time-barred and that the conduct of the parties kept alive the right of the appellants to redeem it. He further contended that these two mutations were incorporated in the Jamabandis and formed the subject-matter of statement made by the Patwari during the course of the trial and had been referred to and by supplying the copies of the mutations at this stage the appellants have not attempted to introduce a totally new case of which the plaintiff-respondent had no notice.
11. The short answer to the claim of the appellants in these proceedings is that the ground on which he fins obtained leave and which he wants to argue was not specifically raised before the High Court at all. It was raised before the first appellate Court and not thereafter. In such a situation, he should not, following the practice of this Court, be permitted to advance a ground not taken up before the High Court unless there were strong justification for permitting him to do othetwise.
12. ' We do feel that by putting forward now that the mortgage created in 1911 stood redeemed in 1962 when a fresh mortgage had come into existence with an additional charge, the learned counsel for the appellants is advancing a new case outside the pleadings and outside the evidence and for proving this he has, of necessity, to 'rely on additional documents which were not produced at any stage of the proceedings before any of the Courts. Below. In Nazeef v. Abdul Ghaffar (1), this Court laid down that "once a mortgage has been created it will remain in existence till it is brought to a termination either by operation of some law or by agreement of parties and if it remains unredeemed for the period of limitation provided by the Limitation Act it matures into ownership". It was further held that "the limitation for redemption being sixty years the mortgagor will have to show that this {{FOOT NOTE}}
(1) PLD 1966 SC 267 {{FOOT NOTE}} ' mortgage somehow came to an end if he wants to avoid the consequence that on account of lapse of time the mortgagee has become the owner. When the mortgagor relied on the additional charge he has to show that the intention of the parties was to put an end to the previous mortgage and to substitute, . Therefore, a new contract with the total amount constituting the mortgage money. It is necessary to keep in mind that the termination of the old mortgage must be established ; if the mortgagor is to be relieved of the effect - of non-redemption of that mortgage.
13. If the additional charge be created by a deed then that deed will have to be looked at for the determination of the , intention of the parties as to whether a new mortgage was intended to be substituted for the old one. If there be no deed then only such inferences can be raised as are necessarily involved in the conduct of parties. If there be receipt of an additional sum of money by the mortgagor the necessary inference is only, this that the mortgagor has taken more money and has said to the mortgagee that just as his land was security for the amount which be has already received as debt his property will also be security for the additional amount which he has taken as debt. He is also deemed to have agreed that it is only when he pays the whole amount that he will be entitled to redeem the property, this term being involved in the fact that he calls the fresh transaction an "additional' charge. However, the mere fact that he binds himself not only to pay the original sum, but also to pay a further sum before he can redeem the property does not necessarily mean that the original mortgage is put an end to and there is now a new mortgage.
14. The principle to be followed in such cases is that when a person is possessed of a certain right and the question is whether by a particular conduct he has waived or renounced that right and his conduct is capable of two interpretation one involving loss of that right and the other preserving the right his conduct must be construed on the basis that he preserve his right. Every person is presumed to act to his own best advantage. If the mortgagee pays money to his mortgagor on the implied condition that the terms relating to this debt will be the same as relating to the original debt, his conduct is not inconsistent with the position that he retains all the benefits of the existence of the original mortgage and we should construe his conduct in accordance with his benefit. As a matter of fact it is the mortgagor who is in need of money and he would be prepared to accept terms favourable' to the mortgagee and if the mortgagee wanted him to say explicitly that the previous mortgage will remain intact the mortgagor will probably agree, but the parties who are entering into a transaction without legal help are not aware of these intricacies and, therefore, such matters are not clarified".
15. As regards the additional evidence which has not been admitted so far, it is clear that this document is sought to be utilized to support a specific plea not taken up in the pleadings namely that the mortgage stood redeemed in 1962 and a fresh mortgage had come into existence. These mutations like all others of their type found their abstract incorporated in the remarks column of the relevant Jamabandi. In that form without being incorporated in the Jamabandi itself it could not be used at all for proving the transaction or the intention of the parties requisite for proving the point. Besides, as held in Parsotim Thakur and others v. Lal Mohar Thakur and others (1), the provisions of law with regard to the additional evidence are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch-up the weak parts of his case and fill up omissions in the Court of appeal. This power, it was observed in that case, ought to be very sparingly {{FOOT NOTE}}
(1) A I It 1931 P C 143 {{FOOT NOTE}} ' Exercised and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on the main issue in the case. The petitioner having pleaded only additions to the mortgage-charge and not redemption and creation of a fresh mortgage, we do not consider that he is entitled to get these documents admitted in evidence at this stage. Without it the appellant has no case to make out. The appeal is, therefore, dismissed with costs.