Patna High Court
Habibur Rahman And Anr. vs Mt. Tetri And Anr. on 8 December, 1970
Equivalent citations: AIR1972PAT43, AIR 1972 PATNA 43
JUDGMENT B.D. Singh, J.
1. This appeal by the plaintiffs is directed against the judgment and decree of the lower appellate Court affirming those of the trial Court.
2. In order to appreciate the points of law urged in this appeal, it is necessary to state, briefly, the facts. The plaintiffs-appellants had instituted a suit for declaration of their title and for confirmation of possession over the tenancy lands detailed under Schedule 1 of the plaint as also for a permanent injunction against the respondents restraining them from interfering with or disturbing the possession of the plaintiffs. The case of the plaintiff was that the lands originally belonged to Skh. Wahid Ali, deceased, who was father of Mt. Tetri (defendant No. 1 respondent No. 1). Wahid Ali remained in possession of those lands till his death. After his death, defendant No. 1 along with Shamsuddin and other succeeded to his properties in accordance with their legal shares. On partition between the heirs of Wahid, the suit land along with the other lands were allotted to the share of defendant No. 1 who came in exclusive possession over the same. Subsequently defendant No. 1 verbally sold the suit land to plaintiff No. 1 for a sum of Rs. 100/- and put him in possession and in proof thereof executed an unregistered sale deed, dated the 14th August, 1947. Since then the plaintiffs were coming in cultivating possession of the lands in suit which being more than 12 years, they had acquired good title and occupancy right over the same. As defendant No. 1, on the instigation of others, was interfering with the peaceful possession of the plaintiffs over the suit land, they instituted the suit seeking the declaration as mentioned above.
3. A written statement was filed by defendant No. 1 who contested the suit. Her defence was that she had sold the suit land to Abdul Barkat Khan by a registered sale deed dated the 17th March, 1962, for a consideration of Rs. 500/- and he being in possession was a necessary party to the suit. Her further case was that she never sold the suit land to the plaintiffs nor she executed any unregistered sale deed dated the 14th August, 1947. She is an illiterate pardanashin lady and if her signature is found on any document, it is forged and fabricated. The plaintiffs were never in possession of the suit land for 12 years or more and they have not acquired any title by adverse possession, Barkat Khan also intervened in the suit and was numbered as defendant No. 2. He also filed a written statement supporting the assertions made by defendant No. 1. On behalf of the plaintiffs, the unregistered sale deed, dated the 14th August, 1947 [Exhibit 2 (a)] rent receipts (Exhibit 1 series), among other documents, were filed and some witnesses were also examined to support their case; whereas on behalf of the defendants the registered sale deed dated the 17th March, 1962 (Exhibit F). in favour of Barkat Khan, along with other documents, was filed and witnesses were also examined.
4. After the consideration of the evidence on record as adduced by both parties, the trial court held that the plaintiffs failed to establish their title to the disputed lands by virtue of an oral sale and the unregistered sale deed [Exhibit 2 (a)] which was inadmissible in evidence, did not confer any title on them. It further found that the plaintiffs were not able to prove that they were in possession of the disputed lands for a continuous period of 12 years or more openly, as of right and to the knowledge of all. Thus, the plaintiffs could not perfect their title over the disputed lands by adverse possession. On the other hand, it found that the defendants had established that defendant No. 1 was in possession over the suit land and she sold the same to defendant No. 2 by virtue of the registered sale deed (Exhibit F) and since the date of the sale, defendant No. 2 was in possession of the disputed lands. On appeal by the plaintiffs, the appellate Court also confirmed those findings of the trial Court as mentioned above. Hence this second appeal by the plaintiffs.
5. Mr. Rajgarhia, learned Counsel appearing on behalf of the appellants, contended that both the Courts below have committed an error of law in holding that the unregistered sale deed [Exhibit 2 (a)] was inadmissible in evidence for all purposes. According to learned Counsel, on the facts and in the circumstances of this case, the same was admissible for collateral purposes, e. g. for showing possession of the plaintiffs over the disputed lands from the date of the execution of the said sale deed. He urged that the Courts below have failed to notice the recent Full Bench decision of this Court in Mt. Ugni v. Chowa Mahto, AIR 1968 Pat 302 and as such, he submitted that, the case should be remitted back to the court below for reconsideration of the evidence in view of Exhibit 2 (a) which is admissible for collateral purposes. He emphasised that since the Courts below have Exhibit 2 (a) as inadmissible document, the other findings are also affected thereby.
6. In my opinion, the principles laid down in, AIR 1968 Pat 302 (supra) are not applicable to the instant case, because their Lordships in that case were considering the question of an agricultural lease, which was evidenced by an unregistered Hukumnama. The provisions of Chapter V of the Transfer of Property Act, their Lordships held, could not in terms apply in view of the bar imposed by Section 117 of that Act, and the circumstances under which the raiyati interest could be created in favour of a tenant had to be ascertained from the provisions of the Bihar Tenancy Act subject to such restrictions as might be imposed by the Indian Registration Act, 1908. The definition of a 'raiyat' given in Section 5 (2) of the Bihar Tenancy Act and the provisions of Sections 20 and 21 of that Act showed clearly that if a person was in cultivating possession of a piece of land under a proprietor neither with his express nor implied consent and that proprietor accepted him as a tenant by granting receipts on acceptance of rent, he became a raiyat, and, if he was in possession for 12 years as a raiyat, he acquired occupancy rights. If he was a settled raiyat, he would get occupancy rights in all the lands held by him as a Raiyat. The Bihar Tenancy Act did not say that a raiyat could be created only on execution of a lease by the landlord. Those provisions would show that actual possession for the purpose of cultivation coupled with recognition of the tenancy by the landlord (which might be by mere acceptance of rent on granting rent receipts) might confer raiyati interest. It might be that at the time of entering into possession of the land, the tenant had not taken the express consent of the landlord; but, if the landlord did not object to his possession and subsequently accepted rent from him, his implied consent would be inferred and tenancy would be created. Their Lordships further observed that there was no bar to the proprietor conferring raiyati right on a tenant by executing a document, but such a document would require registration under Section 17 (1) (b) of that Act, if it created a lease from year to year, or for any term exceeding one ' year, or reserving a yearly rent, and, if that was not registered, it could not be used as evidence of title, in view of Section 49 of the Indian Registration Act. But the proviso to Section 49 indicated that it could be used for collateral purposes. In those circumstances, it would always be open to the tenant concerned to show that he obtained raiyati interest on the strength of actual possession and acceptance of rent by the landlord. There was also no legal bar for a person claiming raiyati interest on two alternative pleas. He might claim such a right on the basis of a written lease. If, however, such claim failed on the ground that the document being compulsorily registrable, was not registered, nevertheless his alternative claim based on actual possession coupled with the acceptance of rent by the landlord, might succeed. In that case the unregistered lease would be admissible for the collateral purpose of proving the nature of possession.
7. In the instant case, by Exhibit 2 (a), a sale has been purported to have been effected in favour of the plaintiffs. Section 54 of the Transfer of Property Act provides how a sale of immoveable property is effected. The relevant portion of the section reads as:
"54. 'Sale' is a transfer of ownership in exchange for a price paid or promised or part paid and part-promised. Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case' of a reversion or other tangible thing, can be made only by a registered instrument.
XX XX XX XX XX XX"
In the present case, it is admitted by the parties that the subject-matter of the sale was valued at Rs. 100/- and, therefore, the sale could have been made only by a registered document, as required also under the provisions of Section 17 of the Registration Act. It may be noted that an agricultural lease could be created orally, but the sale of an immoveable property the value of which is one hundred rupees or upwards, could not be effected orally, Keeping that distinction, if we refer to Section 49 of the Registration. Act, particularly the proviso to that section which has been added by Section 10 of Act XXI of 1929, it will be apparent that in the present case the transaction which required compulsory registration could not have been used for a collateral purpose. It may be useful to quote Section 49 in extenso;
"49. No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall-
(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 unless it has been registered;
Provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act. 3877, or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882, or as evi-
der.ce of any collateral transaction not required to be effected by registered instrument."
The underlined portion of the above proviso to Section 49 clearly brings out that the Legislature intended that if a transaction, which required compulsory registration, is not registered it would not be an evidence of any collateral transaction.
8. Mr. Rajgarhia, however, referred to the case of Karma Kandaswamy Pillay v. Chinnabha, AIR 1921 Mad 82 where their Lordships observed that an unregistered sale could not be set up as a transaction having effect of itself to transfer any interest in the property; but it was permissible to consider it. as showing the nature of the transferee's subsequent possession e. g. when the sale was of mortgaged property to the mortgagee that it was not as a mortgagee, but as full owner. It may be noticed that their Lordships were considering the case before the proviso to Section 49 was added by Act XXI of 1929. Hence that case is .of no avail to the contention advanced by learned Counsel.
9. Learned Counsel then referred to the case of Abdul Alim v. Abdul Sattar, AIR 1936 Cal 130. Obviously, in that case, his Lordship was dealing with an immoveable property the value of which was less than one hundred rupees. In that view of the matter, that case is not applicable to the instant case. Learned Counsel also referred to N. Varda Pillai v. Jeevarathnam-mal, 53 Ind. Cas. 901 = (AIR 1919 PC 44). That case related to a gift of immoveable property in the year 1895, apparently, much before the amendment of Section 49 referred to above. Hence this decision also is of no assistance in the present case Mr. Rajgarhia then invited my attention to a Bench decision of this Court in Baldeo Singh v. Sheikh Muhammad Akhtar, AIR 1939 Pat. 488. In this case their Lordships while dealing with the provisions contained in Section 53-A of the Transfer of Property Act and Section 49 of the Registration Act as well as Section 157 of the Evidence Act, observed that where apart from the unregistered sale deed admitted in evidence, there were other circumstances and facts on the basis of which the Court came to the conclusion that the party in whose favour the sale deed was effected bad matured his title by adverse possession but did not take the date of the sale deed as the starting point of the adverse possession, the finding of the Court below on the question of adverse possession was quite in accordance with law and was not vitiated by reason of the Court taking into evidence the unregistered sale deed. Learned Counsel has placed much reliance on the above observation of their Lordships.
10. In my opinion, even the above observation of their Lordships do not held the contention advanced by learned Counsel as the facts and circumstances in which they were made were different to those in the present case. In that case, according to the terms of the sudbharna bond which was admittedly executed in favour of defendant No. 1 before the commutation of rent, the sudbbarnadar was to divide the produce with the landlord, and after commutation of the rent into nagdi the mortgagor was to pay the rent and the sudbharnadar was to divide the produce with him. but it was clear from the statements made by the plaintiffs themselves (P. W. 2) and of Munchi Paut (P. W. 6) that Bhairo or Munshi never paid rent after the rent was commuted. Those were the circumstances and some other facts on the basis of which the Court below had come to the conclusion that the defendant first party had matured title by adverse possession. Their Lordships further observed that had the Court below taken the date of the unregistered sale deed as the starting point of adverse possession, there might have been something to be said on behalf of the plaintiffs. The finding of the court below on the question of adverse possession of defendant No. 1 therefore, was held to be quite in accordance with law. In the instant case both the Courts below have on facts found against the appellants holding that the plaintiffs were not able to prove that they were in possession over the disputed land and they, therefore, could not perfect their title over the disputed land by adverse possession. In those circumstances, there was no question of using exhibit 2 (a) for a collateral purpose.
11. Another Bench decision of this Court in Girija Nandan Singh v. Girdhari Singh, AIR 1951 Pat. 277 was also, referred to by learned counsel. In that case their Lordships were considering whether an unregistered deed of partition could be admitted for a collateral purpose. It was held that it could be so. In my view that observation is quite consistent with the provisions contained in Section 49 of the Registration Act, which I have quoted in extenso earlier. It is well settled that there can be an oral partition of properties even the value of which is more than one hundred rupees. Therefore, the above observation is of no avail to the argument advanced by Mr. Rajgar-hia. Their Lordships in that case were also dealing with the provisions contained in Section 53-A of the Transfer of Property Act. It may be noted that the very proviso to Section 49, as it stands after the amendment, clearly shows that even if the document is unregistered it can be received in evidence for the purposes of Section 53-A of the Transfer of Property Act. Therefore, the observations made in that case do not apply to the instant case.
12. Learned Counsel has strongly relied upon the decision in Smt. Khemi Mahatani v. Charan Napit, AIR 1953 Pat. 365 where Narayan, J. observed that although an unregistered sale deed is not admissible in evidence to prove title nevertheless it can be referred to as explaining the nature and character of possession thenceforth held by the party. His Lordship relied on the decisions reported in, AIR 1951 Pat. 277 and AIR 1939 Pat. 488 (supra). In my view, in that case, his Lordship was mainly concerned with a partition suit. The appeal before his Lordship was one which arose out of a suit for partition. The plaintiff claimed to be the purchaser of one-half share in 31 bighas land which was the subject-matter of the suit. The plaintiff's allegation was that she had purchased the one-half share belonging to the sons of Ariun and grandsons of Hirday. The defendant contested the suit on the plea that Shashi and Moti, the two sons of Arjun, had no interest in the property and were never in possession thereof and that Arjun had during his own lifetime sold his one-half share in the Khata to Nagar through an unregistered document dated the 17th Jaistha 1321 B. S. which would correspond to May 1914, and had left the village for good. It was in that circumstance that his Lordship made the above observation in my judgment, his Lordship had not noticed the proviso to Section 49 which had been added by Act XXI of 1929, referred to above. According to me, the proviso clearly mentions that only those transactions could be used for collateral purposes which do not require to be effected by a registered instrument. Since in the instant case the subject-matter under exhibit 2 (a) was valued at Rs. 100/- obviously, it was a transaction which could only have been effected by a registered instrument. In that view of the matter, I beg to differ from the observation made by Narayan, J.
13. Even if I were to hold that Exhibit 2 (a) was admissible for collateral purposes and the Courts below wrongly held it as inadmissible, I am not inclined to interfere with the finding of the Court below which are based on the other evidence on record I am fortified in this conclusion by the provisions of Section 167 of the Evidence Act which is to the effect that the improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision or that if the rejected evidence had been received, it ought not to have varied the decision. In my judgment, the Courts below have not committed any error of law and I find no reason to accede to the prayer made on behalf of the appellant for remanding the case to the Court below. The findings of the Court below have got to be upheld.
14. In the result, the judgment and decree passed by the Court below are affirmed and the appeal is dismissed with costs.