' This Regular Second Appeal arose out of a suit filed by Sikandar and Zahid Hussain, mortgagees for a declaration to the effect that the land measuring 12 Kanals 13 Marlas described in the plaint was mortgaged with possession for a sum of Rs,3,000 by means of a registered mortgage-deed executed on 9-3-1959 and registered on 11-3-1959 and as such the plaintiffs are entitled to retain possession of the mortgaged land till its redemption.
2. One Daula son of Kameer, father of the defendants owned land measuring 101 Kanals 4 Marlas out of which 12 'Canals 13 Marlas were mortgaged under the aforenoted mortgage-deed . It was averred that the land was mortgaged with a view to pay off the debt of Bakhtawar appellant defendant No,1 and that the above said Daula, before his death had effected a private partition of his holding amongst his sons, the defendants, but as he needed the money to pay off the debt of Bakhtawar, defendant No,1, one of his sons only, he mortgaged with possession the share of defendant No,1 alone. On these premises it was asserted that as the land falling to the share of defendant No,1 was mortgaged for his benefit he alone is liable to pay the mortgage money and till such time as he redeems the land he is not entitled to interfere with the possession of the plaintiffs.
This suit was resisted by Bakhtawar, defendant No,1, while the others were proceeded against ex parte. The plea taken in the written statement by Bakhtawar was that the alleged mortgage being in violation of Martial Law Regulation No,64, the plaintiffs were not entitled to institute the suit. He also denied that the mortgage was made in order to pay off his debt or that any private partition of the holding was made by Daula among his sons. The plea in nut-shell was that Daula was himself owner of the entire land till his death and that the mortgage being in contravention of M.L.R. 64 the suit was liable to be dismissed.
3. The learned trial Court framed the issues as under:-
(1) Whether the mortgage in dispute was against Martial Law Regulation No,64?
(2) Whether the plaintiffs are entitled to the declaration prayed for?
(3) Relief.
' The learned trial Court after recording evidence of the parties held that Daula deceased had executed the mortgage deed Exh.P1 after receiving consideration of Rs,3,000 and the plaintiff mortgagees were put into possession of the suit land thereafter. It was further held that the said mortgage is in contravention of M.L.R. 64 and in view of the plea taken by the learned counsel for the defendant that if the declaration sought for cannot be granted for the whole transaction, the same to the extent in so far as the transaction would not be in, contravention of the said Regulation, be granted, the learned trial Court granted the declaration to the extent of 1 Kanal 4 Marlas leaving the rest of the holding equal to the subsisting holding i,e, 100 Kanals intact. It was further held and declared that the mortgagee-plaintiffs are entitled to retain their possession of 1 Kanal and 4 Marlas on their own choice till redemption on payment of Rs,3,000 the mortgage money.
4. This decree was then assailed by the mortgagees-plaintiffs byfiling an appeal. Neither Bakhtawar defendant-appellant, nor other legal heirs of Daula who were parties to the suit challenged this decree. The learned Additional District Judge has noted in the impugned judgment dated 13-3-1967 that defendant No,1 conceded at the time of argument that the mortgage deed had been duly effected and that they were bound to pay Rs,3000 to the mortgagees-plaintiffs but contended that the mortgagees could bring a suit for recovery of the amount instead of a declaratory suit in the present form. Learned Appellate Court observed that the plea is dishonest as the factum of mortgage and the liability stands admitted. It was added that apart from the legal duty it is also the moral duty of the defendants to pay the mortgage debt. The learned first appellate Court also disagreed with the observation of the learned lower Court that Daula had not effected any private partition and the mortgage was effected by him out of the entire holding possessed by him, and thus case was hit by M.L.R.
64. The learned Appellate Court finally held that the transaction was not hit by M.L.R. 64 and as such the plaintiffs-mortgagees, appellants before him, were entitled t the declaration prayed for, which was granted.
5. Bakhtawar alone then filed this Regular Second Appeal challenging the decree dated 13-3-1967 of the first appellate Court.
6. Learned counsel argued that as the transaction was hit by Martial Law Regulation No,64 the declaration prayed for should not have been granted. The first thing to be noted is that Bakhtawar had accepted the decree of the learned trial Court whereby declaration to the extent of 1 Kanal 4 Marlas of the land was granted till payment of Rs,3000. Secondly even if it is held that the transaction was hit by M.L.R. 64 still the possession of the land cannot be obtained by him without payment of Rs,3,000 the mortgage money as the mortgage and receipt of the mortgage money stand admitted. Even if the transaction is ultimately found to be violative of any law and so ineffective the return of the benefit received is directed by the Courts following the provisions contained in section 65 of the Contract Act. The learned appellate Court referred to the Privy Council decision in Raja Mohan Manucha v. Manzoor Ahmad Khan 206 IC 457. That was also a suit for mortgage which was found to be invalid being in contravention of certain provisions of law but still it was held that in such a case the mortgagee was entitled to the relief under section 65 of the Contract Act. In any case the possession cannot be obtained without making payment of Rs,3,000 by Bakhtawar alone or by the other legal heiRs, But it appears that it is Bakhtawar alone who is aggrieved of the decree may be for the reason that it is his share of the land which is in dispute.
7. The other peculiar feature of the case is that in the plaint the plea taken was that it is the liability of Balditawar alone to pay the amount as the loan was taken to pay off his debt which also stands recorded in the Deed Exh.P1 and that Daula had through a family partition in his life time given possession to his sons of their respective shares in the land. The witnesses produced by the plaintiffs also deposed to these facts in their statements before the trial Court. As against this Bakhtawar himself entered into the witness-box as D.W.2 besides producing only one witness namely Abdul Wahab, Patwari, D.W.1. Neither the Patwari nor he himself deposed anything about the aforenoted facts which were specifically pleaded in the plaint and were also deposed to by the witnesses. Bakhtawar made a one line statement to the effect that he has a share in the land in dispute i,e, 12 'Kanals 13 Marlas, and that loan was not obtained for any of his needs. Except this bald statement no corroborative evidence whatsoever was produced. In view of the aforenoted state of evidence the finding of the first appellate Court is well-founded. In this view of the matter no justifiable exception can be taken to the judgment and decree of the learned first appellate Court.
The appellant still has the right to deposit the mortgage amount and by making such a deposit he will have the right to obtain possession of the land. With this observation this appeal fails and is dismissed with no order as to costs as the respondents have not entered appearance to contest the appeal.