' Respondent No, 1 filed a Civil Suit No, 15 of 1966 against the applicant and Assistant Rehabilitation Mukhtiarkar, Hyderabad (respondent No, 2 herein) in the Court of Civil Judge, Hyderabad, in which it was claimed by respondent No, 1 that the agricultural land Survey No, 213/1 to 4 measuring 7 Acres 36 Ghuntas in deh Boochki, Tappo Tando Hyder, taluka Hyderabad, was his ancestral property and the said land had been mortgaged by his grandfather to one Mangumal about 50 years earlier but the possession of the land remained with his ancestors and their names also remained in the record of rights. It was then averred that in the year, 1944, the respondent No, 1 came to know that the name of the mortgagee Mangumal had been entered into record of rights.
This entry in the record of rights, according to respondent No, 1, had been made due to some mistake and the possession was with respondent No, 1, who also used to pay land revenue and also used to pay interest or the mortgage money to the mortgagee Mangumal. It is the case of respondent No, 1 that he approached Mangumal in 1944 and after paying the mortgage money with interest got his land redeemed and an agreement was executed in this respect by the mortgagee Mangumal. After the redemption of the land, according to the plaint, respondent No, 1 applied to the Revenue authorities for the mutation of record of rights in his name and he was given an understanding by the Revenue authorities that his "Khata" would be changed in due course which he would be informed and therefore, respondent No, 1 should not worry about the change of "Khata". According to respondent No, 1, he being an illiterate and rustic villager, believed the assurances given by the Revenue authorities that his "Khata" would be changed in his name.
However, according to the respondent No, 1, in 1949 he came to know that the "Khata" still stood in the name of Mangumal. Whereupon the respondent No, 1 put in all efforts to change the "Khata" which was ultimately done in the same year i. e.
1949. According to respondent No, 1, he enjoyed his land, its produce and he was in peaceful possession of the same when about one month before the filing of the suit the applicant Mohammad Ismail came to the suit land with police and asked the respondent No, 1 to hand over possession of the land to him, as according to the applicant the land had been allotted to him by the Assistant Rehabilitation Mukhtiarkar, Hyderabad. The applicant then went to the office of the Assistant Rehabilitation Mukhtiarkar, Hyderabad, to verify the claim of the applicant and he was surprised to know that in fact the land had actually been allotted to respondent No, 1 instituted the suit in the Court of Civil Judge, Hyderabad, claiming a permanent injunction restraining the defendants from dispossessing or otherwise interfering with the possession of respondent No, 1.
Later on an amendment application was filed which was granted and the plaint was amended and an additional prayer was incorporated in the prayer clause which was for a declaration that "since the mortgaged property has been redeemed outside the Court, the Court, may also pass a decree for redemption."
' The suit was resisted by the applicant who filed a written statement. Preliminary objection was taken that the suit was barred under the provisions of Pakistan Administration of Evacuee Property Act, XII of 1957 and the Displaced Persons (Land Settlement) Act, 1958. It was also pleaded that respondent No, I was not the owner of the suit land and he was not in possession of the same in his own right. It was pleaded that the claim of respondent No, 1 that the suit land had been mortgaged with Mangumal was false, as the revenue record had shown that in 1935 Asumal and Mangumal were the "Khatedars" and their names continued in the record of rights till 1949 when the name of respondent was illegally entered in the Revenue Records. It was further pleaded that respondent No, 1 illegally got amended the entry in his name in the revenue records and no mutation could be effected of the suit land, which an evacuee property and vested in the Custodian being the property of evacuees, Asumal and Mangumal, without the permission of the Custodian. It was further averred in the written statement of the applicant that the suit land was allotted by Rehabilitation Department to the applicant on 3-8-1959 and possession of land had been delivered to him on 8-8-1959 and thereafter on 14-11-1959 respondent No, 1 executed a Harinama in favour of the applicant and the respondent No, I was allowed to cultivate the suit land as a here. It was further averred that on 1-6-1975 the allotment of the applicant in respect of the suit land was made final under MR-V Scheme and the applicant was the absolute owner of the suit land. It was further averred that Revenue Record pertaining to the suit land also stood mutated in the name of the applicant in 1965-66.
' The trial Court settled the following issues :- "(1) Whether this Court has jurisdiction to try the suit ?
(2) Whether the suit is maintainable in law ?
(3) Whether the suit is not barred under the provisions of Pakistan Administration of Evacuee Property Act XII of 1957 and the Land Settlement Act, 1958 ?
(4) Whether the suit is time-barred ? (5) Whether the suit is in proper form ?
(6) Whether the suit land was mortgaged without possession by the grandfather of the plaintiff with Mangumal ?
(7) Whether the plaintiff got mortgage redeemed in respect of the suit land in 1944 ?
(8) Whether the plaintiff was in possession of the suit land ?
(9) What should the decree be ?"
Following additional issues were also framed :- "(1) Whether suit is not properly and adequately stamped ?
(2) Whether the relief of declaration is specifically barred under the provisions of Land Settlement Act and the provisions of Civil Procedure Code ?
' After recording the evidence and hearing the arguments on behalf of the parties, by Judgment dated 31-7-1970, the suit of respondent No, 1 was dismissed with costs. The trial Court held that there was no evidence on record to indicate that the suit land had ever been mortgaged by Haji Manjhi, grandfather of respondent No, 1, with Mangumal and it had also not been proved that any redemption had taken place in 1944. On preliminary issues it was held that the trial Court had no jurisdiction to try the suit, the suit was not maintainable and that the suit was barred under the provisions of Pakistan Administration of Evacuee Property Act XII of 1957 and the Land Settlement Act, 1958. It was further held by the trial Court that the suit was barred by limitation. It was further held that no declaration had been sought by the respondent No, 1 that he was the owner of the suit land and therefore, the suit was not in proper from. On the issue of possession, the trial Court found that respondent No, 1 has all along remained in possession of the suit land. It was also found that proper court-fee had not been paid.
' Respondent No, 1 being aggrieved, filed Civil Appeal No, 167 of 1970 and by the judgment dated 24- 3-1973 of the learned IIIrd Additional District Judge, Hyderabad, the judgment of the trial Court was set aside and the suit of the respondent No, 1 for declaration and for permanent injunction was decreed. The learned First Appellate Authority came to the conclusion that on the basis of the evidence on record it had been established that the suit land had been mortgaged without possession by the grand father of respondent No, 1 in favour of Mangumal and that mortgage was redeemed in 1944 through Exh. 56, which was an unregistered agreement of redemption. According to the learned First Appellate Authority this document was admissible in evidence and it was a strongly piece of evidence showing that the mortgage of the suit land had taken place and then the property was redeemed. It was further held by the learned First Appellate Authority that there was nothing on record to show that the Custodian had at any time treated the suit land as evacuee property and that there was no evidence that the suit land was treated as evacuee property before 1-1-1957 and therefore it could not be declared as an evacuee property. In the circumstances it was held by the First Appellate Authority that the Rehabilitation Authorities had no jurisdiction over the suit land and the suit filed by the respondent No, 1 was not barred by law including Ordinance XII of 1957. According to the learned First Appellate Authority no finding of the Custodian was challenged and hence section 41 in XI of 1957 Ordinance did not come in the way of respondent No,. 1 and moreover respondent No, I did not seek any declaration whether the suit land was or was not evacuee property. In the circumstances, according to the learned Additional District Judge, section 41 of Act XII of 1957, did not bar the suit filed by respondent No,
1. In respect of section 25 of the Displaced Persons (Land Settlement) Act, 1958, it was held by the First Appellate Authority that the foundation of the jurisdiction of the Settlement Authorities for alloting properties depended on the fact that the property should be evacuee property. According to the learned First Appellate Authority that suit was not barred by section 25 of the Act, 1958. The finding of the trial Court that the suit was not in proper form was also reversed by the First Appellate Authority. It was held that the suit was not barred by limitation. Being aggrieved with the judgment dated 24-3-1973 of the learned IIIrd Additional District Judge, Hyderabad, in Civil Appeal No, 61 of 1979, the present revision application has been filed by applicant Muhammad Ismail. I have heard at length the arguments of Mr. Hasan Mahmood Baig, learned counsel for the applicant and Mr. A. Aziz, learned counsel for respondent No,
1. No one has appeared on behalf of the Official respondent, Assistant Rehabilitation Mukhtiarkar, Hyderabad.
2. It was contended by the learned counsel for the applicant that the evidence on record did not establish that respondent No, 1 was the owner of the suit land in question.
' The main question for consideration in this appeal is whether the suit land had been mortgaged without possession by the grandfather of respondent No, 1 with Mangumal and if so whether he got the mortgage redeemed. Although no declaration was sought by respondent No, 1 in his suit that he was the owner of the land in question, the case of respondent No, 1 that his grandfather had mortgaged the suit land presupposes that according to respondent No, 1, he was the owner of the suit land. In fact it was averred in the plaint that the suit land was the ancestral property of respondent No, 1.
' Apart from his own evidence (Exh. 53). Respondent No, I relied upon the evidence of P. W. 2 Uris (Exh. 60), P. W. Gul Muhammad (Exh. 61), P. W. 4 Ghulam Hyder (Exh. 62) and P. W. Ahsan Ali Shah (Exh. 71). For proving his case respondent No, 1 produced the following documents :-
(1) Exh. 54-Copy of extract from Number Shumari register for the year 1904-1905.
(2) Exh. 55-Copy of extract from the Record of Rights in Deh Form VII.
(3) Exh. 56-Original deed of redemption dated 28-4-1944.
(4) Exh. 57-Copy of extract from revenue records.
(5) Exh. 58/1 to 58/13-Land Revenue Receipts.
(6) Exh. 59/1 to 59/11-Land Revenue Bills.
(7) Exh.
99.-Certified copy of deed registered by Sub-Registrar, Hyderabad on 24-7-1905.
(8) Exh. 100-Certified copy of partition deed dated 23-6-1910 registered by the Sub-Registrar, Hyderabad on 27-6-1910.
(9) Exh. 101-Copy of extract from Number Shumari register in Deh Form III for the years 1903-1904 and 1904-1905.
' On behalf of the applicant, D. W. 1 K azi Mumtaz Ahmad (Exh. 77) a stamp-vendor who produced the harinama dated 14-11-1959 alleged to have been executed by respondent No, 1 (Exh. 78) D. W. 2 applicant Muhammad Ismail (Exh. 79), who produced several documents, and D. W. 3 Rehabilitation Tapedar Mahmood Ali (Exh. 89) who had given possession of the suit land on 22-10- 1959 to the attorney of the applicant, gave evidence. Amongst the documents produced by the applicant during his evidence before the trial Court are the "Khatonis" (Exhs. 80 and 82), showing allotment of the suit land to the applicant in 1959, certified copy of the sale-deed dated 25-2-1935 whereby the suit land was sold by Assomal son of Janimal to Mangumal son of Ganomal (Exh. 85) and copy of extract from the Record of Rights in Deh Form VII showing two entries about transfer of ownership of the land in question (Exh. 84). First entry in Exh. 85 shows that mutation was effected on 5-6-1935 from the name of Assomal Janimal in the name of Mangumal Ganomal on the basis of the sale-deed dated 25-2-1935. The second entry shows that the owner's name was changed on 28-3-1949 from Mangumal to Haji son of Uris Parhar on the basis of possession.
3. On the evidence, the trial Court came to the conclusion that respondent No, 1 had not proved his case. As observed earlier, the First Appellate Authority reversed the judgment of the trial Court and decreed the suit of respondent No,
1. The only documentary piece of evidence that can got to support of the case of respondent No, 1 are Exhs. 54 and 56. Exh. 54 is the extract from number- shumari for the year 19041905. It is not the Record-of-Rights but it shows Haji Manjhi (grand father of respondent No, 1) as half-owner of the suit land. Then Exh. 56 is the unregistered deed of redemption alleged to be executed by Mangumal. Apart from these two documents, other documentary evidence does not support the case of respondent No, 1 that his grandfather had mortgaged the suit land in favour of Mangumal about 50 years prior to the filing of the suit though the land remained in the name of his ancestor and then the land was redeemed by respondent No, 1 in 1944 through Exh.
56.
4. I may here comment upon the other documentary evidence. Exh. 55 is an extract from the Record of Rights and it does show the respondent No, 1 as the owner of the suit land but it does not give the date as to when the entry in the name of respondent No, 1 was made as the owner. As will be observed later on such entry was made on 28-3-1949 and not at any time earlier. Exh. 57 is also an extract from the revenue records but not the Record-of-Rights. It mentions the name of Urs, father of respondent No,
1. According to the evidence of respondent No, 1 the name of Urs was wrongly entered in the revenue records. He does not rely upon this document himself. Exhs. 58/1 to 58/13 are land revenue receipts and Exhs. 59/1 to 59/11 are land revenue bills and all these documents are in the name of respondent No,
1. But these are all issued in the year 1958 or later and as such are of no consequence.
' Exh. 99 is a copy of a deed registered by the Sub-Registrar, Hyderabad on 24-7-1905. This document was produced by respondent No, 1 himself during his deposition before the trial Court.
This document shows that one Khiomal had filed Suit No, 354/1905 against Kandero, Muhammad and Us in the Civil Court at Hyderabad, which suit was decreed and the suit land was ordered to remain mortgaged with Khiomal without possession till the decrial amount was paid by the Judgment-debtors to Khiomal. Exh. 99, produced by respondent No, 1 indicates that the suit land belonged to anyone or more of the Judgment-debtors but respondent No, 1 deposed that he was not related to any of the aforesaid three Judgment-debtors. The Exh. 100 was also produced by respondent No,
1. This is a copy of a registered partition deed dated 23-6-1910. The partition deed was executed by one Thakumal brother of Mangumal whereby Thakumal withdrew his claim over the suit land. The last document produced by respondent No, 1 is Exh.
101. This extract from village Form III shows that Haji Manjhi (grandfather of respondent No, 1) was in possession of the suit land in the years 1903-1904 and 19041905.
5. A perusal of the documents produced by respondent No, 1 shows that except for Exh. 56, not a single document proves that the suit land was mortgaged by Haji Manjhi to Mangomal. In fact there is no reference at all in any of these documents about the mortgage in favour of Mangomal by Haji Manjhi or any other ancestors or relative of respondent No, 1 which themselves show that from 1905 till 1949, the suit land stood in the name of other persons and not in the name of any ancestor or relative of respondent No 1. It is a matter of record that no title deed was produced by respondent No, 1 showing his title to suit land and as such his entire case is based on entries in the revenue records plus Exh. 56, the redemption deed, and the oral evidence. If Exh. 56 is excluded from consideration, from other documentary evidence no case is made out by respondent No, 1 that the suit land was mortgaged without possession by Haji Manjhi to Mangumal and then the property was redeemed.
6. Coming now to Exh. 56, it has already been noted that it is an unregistered document. Admittedly this document was for an amount exceeding Rs, 100 and the suit land since 1935 stood mutated in the name of Mangumal in the Record-of-Rights on the basis of registered sale-deed. If at all there was a mortgage and pursuant to that mortgage the land had been transferred in the name of Mangumal, what was being sought to be achieved through the redemption deed was to get the suit land transferred back in the name of respondent No,
1. The deed being for more than Rs, 100 and purporting to transfer immovable property required registration. As observed earlier, Exh. 56 is an unregistered document. The trial Court took the correct view that Exh. 56 was not admissible in evidence and the First Appellate Authority erred in holding that this document was not compulsorily registrable and was admissible in evidence. The learned Additional District Judge further erred in holding that even if Exh. 56 was compulsorily registrable it could be admitted in evidence. According to the learned Additional District Judge, Exh. 56 could be admitted in evidence for a collateral purpose. But it was not for a collateral purpose that Exh. 56 was introduced in evidence. The purpose of producing Exh. 56 in evidence by respondent No, 1 was to establish redemption of the property. This was not a collateral purpose. In my view, Exh. 56 being compulsorily registrable, it was not admissible in evidence and was rightly rejected by the trial Court.
' The worth of Exh. 56 can be assessed from the fact that it was not even relied upon by respondent No, 1 for getting the property mutated in his name in the Record-of-Rights. Admittedly the suit land stood in the name of Mangumal since 1935. In March, 1949 respondent No, 1 appeared before the Mukhtiarkar and on the basis of his possession got the land mutated in his name. Exh. 56 was not produced by respondent No, 1 for the purpose of getting his name mutated in the Record-of-Rights.
The suit land could not be mutated in the name of respondent No, 1 on the basis of possession only.
The oral evidence adduced on behalf of respondent No, 1 was of no importance. None had seen any mortgage-deed or redemption-deed being executed. Issues No, 6 and 7 were right decided against respondent No, 1 by the trial Court.
7. The suit of respondent No, 1 as framed and filed was also maintainable. The suit land had been allotted to the applicant and respondent No, 1 had become aware of the allotment in favour of the applicant. Title of respondent No, 1 in respect of the suit land was also in doubt as he had procured mutation of the suit land in March, 1949 in his name from the name of Hindu Mangumal on the basis of possession simplicitor in the absence of Mangumal. In these circumstances without seeking a declaration as to his title and cancellation of the allotment in favour of the applicant, the suit of the respondent No, 1 was not maintainable.
8. The suit was otherwise not barred in view of any provisions of the Pakistan Evacuee Property Act, 1957 or the Displaced Persons (Land Settlement) Act, 1958. There was no order of the Custodian that was under challenge in the suit. I agree with the view of learned Additional District Judge that the suit was not otherwise barred under the Acts of 1975 and 1958.
9. As a result this revision succeeds. Revision Application No, 62 of 1974 is allowed, the judgment dated 24-3-1973 and decree dated 2-4-1973 passed by learned IlIrd Additional District Judge, Hyderabad, in Civil Appeal No, 167 of 1970 are set aside and the judgment of the trial Court dismissing the suit of respondent No, 1 is maintained. There will be no order as to costs.