1. This is a defendant's appeal and arises out of the following circumstances: The property in dispute is an occupancy holding. The appellant Sheonandan and one other brought a suit against the plaintiff in the revenue-Court for arrears of rent. Sheonandan's case was that the holding had been mort—gaged to certain mortgagees who had sublet the land to Ram Lagan Singh, that the mortgage had been redeemed, that Earn Lagan Singh remained on as a subtenant and that he was liable for arrears of rent. Ram Lagan's case was that he was not a subtenant but that is held the land as a mortgagee in possession on an old mortgage of 1920 Sambat. The revenue Court went into the matter, held that Ram Lagan had failed to establish any mortgage and gave Sheonandan a decree for arrears of rent. Then Sheonandan and his companion brought another suit in the revenue Court to eject Ram Lagan Singh (and one other) as being a subtenant. The latter again put forward his plea that he held as a mortgagee under this old mortgage. The revenue Court referred Ram Lagan to the civil Court to obtain a declaration as to whether or not he held this land as a mortgagee. Thereupon Ram Lagan Singh and another plaintiff brought the present suit against Sheonandan Ahir, and claimed a declaration that the plaintiffs held the land as a mortgagee.
2. The Court of first instance dismissed the suit. The lower appellate Court decreed the suit. The defendant Sheonandan comes here on second appeal. Two points were pressed. The first is that the very point in dispute between the parties is res judicata by reason of the decision by the revenue Court in the rent suit. The second point is that the plaintiff have failed to prove the mortgage which they put forward. I do not propose to touch the question of res judicata because in my opinion it is quite clear that the plaintiffs in the present suit have failed to establish any mortgage whatsoever in their favour. The mortgage deed set up by them is dated 1920 Sambat corresponding to February 1864. The document is unregistered.
3. It is in the handwriting completely from beginning to end of one person. It purports to be in the handwriting of Gajadhar Das. The names of the executant and the names of the witnesses purport to have been written upon the document by the hand of Gajadhar Das. No porstion of the document purports to have been written by the mortgagors. The alleged executants and the alleged attesting witnesses and the scribe are all said to have died. The plaintiffs procuced the son of the scribe to testify to the fact that the whole of the document is in the handwriting of his father. There is not a scrap of evidence to prove that Gajadhar Das had any authority from the alleged mortgagors or the alleged attesting witnesses to sign their names upon the document. The lower appellate Court in the course of its judgment remarks as follows:
“The scribe has signed for all the executants. It therefore appears that he was authorized by them to do so and the plaintiffs have proved the handwriting of the man who signed for the executants.”
4. It is a mere assumption on the part of the lower appellate Court that the scribe appears to have been authorized, by the alleged mortgagors to sign their names. The lower appellate Court also purported to apply Section 90 of the Evidence Act, and to presume the document to be genuine. Under S. 90 a Court may presume that the signature and every other part of a document which purports to be in the handwriting of any particular per-son is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. The present document does not purport to be executed by the mortgagors at all. It purports to have been executed by Gajadhar Das for the mortgagors. S. 90 does not allow a Court to presume that Gajadhar Das had any authority from the mortgagors to sign their names upon this document. The respondents' case is somewhat peculiar. If this mort-gage-deed be a true one, then they and their predecessor in-title must have held possession for at least 52 years, and one would have thought that it would be easy to prove their possession by means of the Government record. But apparently they have been unable to prove possession for anything more than 14 or 15 years, and that only by the admission of the opposite party. The lower appellate Court in its judgment says:
“It has been produced from proper custody, and as I shall show later on, the plaintiffs-mortgagees have been in possession in accordance with this deed.”
5. Later on what the lower appellate Court says about the plaintiffs' possession is as follows:
“The possession of the plaintiffs for at least 14 or 15 years has been admitted by the defendants. The oral evidence, coupled with the mortgage deed, shows that the plaintiffs have been in possession as mortgagees.”
6. It is impossible to hold that the plaintiffs-respondents held possession as mortgagees, unless and until it could be established that a mortgage was ever created. The document under which the plaintiffs claim as mortgagees no doubt exists and purports to have been written and the names of the executants to have been signed thereon by one Gajadhar. No authority from the mortgagers in favour of Gajadhar has been proved. Therefore it is impossible to say that this mortgage deed was executed by or with the consent of the alleged mortgagors. The mortgage not having been established it is impossible to give to the plaintiffs a decree declaring that they hold the land as mortgagees. In my opinion the decision of the Court of first instance was quite correct. I allow this appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance. The appellant will have his costs in all Courts.
V.B/R.K
7. Appeal allowed.