Patna High Court
Jaipal Singh And Ors. vs Bharat Narain And Ors. on 18 December, 1951
Equivalent citations: AIR1952PAT384, AIR 1952 PATNA 384
JUDGMENT Reuben, J.
1. This appeal by the defendants arises out of a suit for declaration of title to, and recovery of possession of certain lands in village Islampur Begampur, 'touzi' No. 10034, which was formerly owned in equal shares by Mt. Bibi Hazra and one Jamil Ahmad. Bibi Hajra transferred her share to the plaintiffs on the 18th of December 1941 at a time when it was in 'Zarpeshgi thika' with defendant No. 1. The plaintiffs deposited the zarpeshgi money after the purchase and got 'khas' possession. Subsequently, on the 15th of January 1942, defendant No. 1 purchased the eight annas share of Jamil Ahmad. The suit was filed by the plaintiffs claiming the suit lands as 'bakasht'. With respect to the lands in Schedule 2, the claim is that they were purchased by Bibi Hajra and that the entire interest in them has now passed to the plaintiffs. As regards the lands in Schedule 3, the claim is that they were purchased jointly by Jamil Ahmad and Bibi Hajra, and the plaintiffs have a share of eight annas in them. The claim of the plaintiffs was contested by some of the defendants, who pleaded that they have acquired 'raiyati' rights in them under settlements made by the original proprietors. The defence has succeeded as regards a portion of the suit property. We are concerned only with the lands of 'khatas' Nos. 245, 257, 258, and 263 which, according to the defence were settled with Noonoo Singh appellant on the 22nd of June 1934 and of 'khatas' 278, 249 and 247 alleged to have been settled jointly with Hazari Singh deceased and Sital Dhanuk appellant, by Bibi Hajra and Jamil Ahmad on the 15th of June 1937. The sons of Haziri Singh are appellants. The defence story has not been accepted by the Courts below so far as these lands are concerned and to that extent the suit has succeeded.
2. The only point which arises in this case is whether the decision of the Courts below is affected by the exclusion from evidence of the unregistered 'hukumnamas' by which the settlements of these lands are said by the defence to have been made.
3. It is admitted that, under Clause (d) of Sub-section (1) of Section 17, Registration Act, these 'hukumnamas' were compulsorily registrable, but, it has been contended that non-registration merely prevents a party from going to Court as a plaintiff and seeking to establish his title on the unregistered document; it may, however, be used as a shield when the party is impleaded as a defendant. I see nothing in the provisions of Section 49, Registration Act, to support the contention. The section provides that such a document shall not (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power. There is no distinction drawn between the use of the document by way of a sword and its use as a shield.
4. There is more force in the contention that the Courts below erred in excluding the 'hukumnamas from the record because, under the proviso to Section 49, they are admissible for a collateral purpose. That compulsorily registrable documents which have not been registered can be so used is clear from the sectioa itself, and what is "collateral use" has been explained in several reported decisions. It may be used to prove the nature and character of possession 'VARADA PILLAI v. JEEVARATH-NAMMAL', 46 Ind. App. 285 (PC); 'JANKI-KUER v. BIRJ BHIKHAN', 3 Pat. 349 or to prove separation and the status of parties 'BESAR KUER v. RAMHIT SINGH', 21 Pat. L T. 1063. From the argument before us, it appears that it is not for any such purpose that the appellants now want to rely on these documents. Both the Courts of fact have disbelieved all the admissible evidence given on behalf of the defendants to support the story of the settlements. It is urged that, it is possible that they might have accepted this evidence if the two 'hukumnamas' had been brought on the record. In other words, the appellants want that the 'hukumnamas' should be taken as evidence of the settlements. This would appear to be contrary to the provisions of Clause (c) of Section 49, Registration Act, and is not supported by any of the decisions to which reference has been made, in all of which possession was either admitted or was proved on other evidence. This was so in the three cases which I have mentioned above. It was also the case in 'KUER RAI v. BABU RAM KUER'. AIR 1940 Pat. 498; where it was explained that an unregistered 'patta' may be used to explain the nature of possession. The unregistered documents were found to have been used for this limited purpose in 'BALDEO SINGH v. MUHAMMAD AKHTAR', 20 Pat. L. T. 399. The other cases which have been cited before us really have no bearing on the matter. 'LOKNA-
TH v. CHHOTAN,' 24 Pat 429 is merely an authority that an agricultural lease may be created by a registered 'kabuliyat' executed by a lessee and accepted by the landlord. 'SMT. PEARI DAI v. NAIMISH CHANDRA', 5 Pat. 40 was decided on considerations of equity, and in 'JAGDEO SAHU v. MAHABIR PRO-SAD', 13 Pat. 111 the unregistered document was merely used to prove a collateral agreement. In 'NARAYAN PRASAD v. RAJKI-SHORE', A, I. R. 1951 Pat. 613, I held that the document in question was not compulsorily registrable and merely observed that, if it had been, it would still be admissible to explain the nature of the possession of the plaintiffs. Similarly, the question of the use of an unregistered partition deed did not arise in 'GIRI-JA v. GIRDHARI', 29 Pat. 628 as their Lordships found that the finding of separation in status and partition by metes and bounds was based on evidence independent of the unregistered document. In the course of his judgment, Sarjoo Prosad, J. considered the extent to which an unregistered partition deed may be used, and came to the conclusion that it may be used for a collateral purpose.
5. The view I am inclined to take is supported by the observation in 'BESAR KUER'S CASE', (21 Pat. L. T. 1063) ('supra') that an unregistered partition deed is inadmissible to prove partition or possession of property on partition." It also finds support in the observation of Varma, J. in 'BALDEO SINGH'S CASE', (20 Pat. L. T. 399.) (supra) :
"Had the Court below taken the date of the unregistered sale deed as the starting point of the adverse possession there might have been something to be said on behalf of the plaintiffs".
A further discussion of the point, however, is academical in view of the fact that both the documents relied on, are within the period of limitation for bringing a suit in ejectment. Under the law, an unregistered written lease cannot vest a legal title in the defendants. Therefore, even if settlements were made as alleged, the settlees entered on the property as trespassers. Their evidence that rent was subsequently received from them and that they have been recognised as tenants has been disbelieved by both the courts. Therefore, even if the fact of these settlements by unregistered leases, had been established, the plaintiffs would still have been entitled to a decree.
6. The appeal fails and is dismissed with costs.
Lakshmikanta Jha, C.J.
7. I agree.