John Beaumont, Kt., C.J.
1. This is an appeal from the First Class Subordinate Judge of Belgaum. The plaintiff sued to recover possession of the lands described in the suit, and certain mesne profits. The suit failed in the. lower Court because the learned Judge held in effect that the defendant was a permanent tenant. The three issues in the lower Court were:
1. Is the permanent tenancy alleged by the defendant proved?
2. Is the suit barred by time by reason of defendant's possession as a permanent tenant to the knowledge of the plaintiff for more than twelve years before suit?
3. Is plaintiff estopped in any way from bringing this suit?
2. All these issues were answered in the affirmative. The real question in this appeal is whether the defendant's permanent tenancy is proved. Now, it is suggested that permanent tenancy of the suit lands was granted to the predecessor of the defendant by the predecessor of the plaintiff by a document dated February 17, 1865. The learned Subordinate Judge was of opinion on looking at that document that it was one which required registration, and that not having been registered, it could not be given in evidence. But he held that the permanent tenancy was proved by certain entries in the record of rights, and therefore he answered the first issue in the affirmative, holding the permanent tenancy to be proved. The first question which arises, therefore, is whether the document of February 17, 1865, requires to be registered, and if so, what is the effect of non-registration? The document appears to create or purports to create a permanent tenancy, and I think, therefore, that it required registration under Section 13 of the Indian Registration Act of 1864, which was in force at the time when this document was executed. The effect of an omission to register under that section was that the document could not be received in evidence in any civil proceeding in any Court or be acted upon by any public officer. But that section did not provide that the document should pass no interest. The Registration Act of 1864 was repealed by the Registration Act of 1866, and that Act by Section 17 provided for the registration of certain documents executed on or after the date on which the Act of 1864 came into operation. Then it was provided in Section 22 that a document could not be accepted for registration unless presented within four months from the date of its execution. Then by Section 100 it was provided that documents executed before the date of the Act should be accepted for registration if duly presented for registration within twelve months from the date when the Act came into operation. That Act was in turn repealed by the Act of 1871, and finally came the Act of 1908 which is at present in force. By Section 17 of the Act of 1908, which is in very much the same terms as Section 17 of the Act of 1866 and subsequent Acts, it is provided that documents of the character therein referred to shall be registered if they have been executed on or after the date on which the Registration Act of 1864 or 1866 or 1871 or 1877 or the present Act came or comes into force. Therefore, this document of February 1865, being executed after the date of the Act of 1864, falls with, in the terms of Section 17. But then Section 23 provides that a document shall not be accepted for registration unless presented within four months from the date of its execution, and there is no such provision as that contained in Section 100 of the Act of 1866, giving an extended time for registration of documents executed before the Act came into force. So that, although the present document requires registration under Section 17, it cannot in fact be registered, having regard to the terms of Section 23. Then Section 49 deals with the consequence of non-registration, and it is in much the same terms as Section 49 of the Act of 1866 and subsequent Acts. It provides, so far as material, that no document required by Section 17 to be registered shall affect any immoveable property comprised therein or be received as evidence of any transaction affecting such property unless it has been registered. The word 'registered' must be construed by virtue of Section 3, Clause (45), of the General Clauses Act, as meaning registered in British India under the law for the time being in force for the registration of documents, so that a document required to be registered by Section 17 cannot affect any immoveable property comprised therein or be received as evidence of any transaction affecting such property unless it has been registered under the law for the time being in force. If this document had in fact been registered under the Act of 1864, or re-registered under the Act of 1866, as it might have been under Section 100, no objection could be taken to it. But as it has not in fact been registered, and as it is a document which falls within Section 17, notwithstanding its date, it seems to me that the provisions of Section 49 apply, and that it cannot affect the immoveable property comprised therein or be received as evidence of any transaction affecting such property.
3. On behalf of the appellant it was first argued that inasmuch as that document purports to comprise the contract between the parties, no other evidence, such as the record of rights, can be given relating to the terms of such contract, and Section 91 of the Indian Evidence Act was relied on for that. That section states the ordinary rule that where a contract between the parties has been reduced to the form of a document, no evidence can be given in proof of the terms of such contract except the document itself. But there seems to me some inconsistency about the appellant's argument. If the document in question cannot be given in evidence at all, I do not see how the Court is to reach the conclusion that it in fact embodies the contract between the parties. The Court can look at the document for the purpose of seeing its nature and whether it requires registration, but having determined that it does require registration and cannot be given in evidence, it seems to me that it cannot be used for the purpose of showing that it embodies the contract between the parties so as to introduce the restrictions of Section 91 of the Indian Evidence Act. If the document cannot be given in evidence to prove the terms of the contract, I do not see how it can be used to show that it contains all the terms of the contract. Mr. Nadkarni for the appellant relied on a decision of the Privy Council in Subramonian v. Lutchman (1922) L.R. 50 IndAp 72 : 25 Bom. L.R. 582 in support of his contention. That was a case of an equitable mortgage by deposit where there was a contract in writing setting out the terms on which the deposit was made, the document not being admissible in evidence for want of registration, and it was contended that it was open to the parties relying on the equitable mortgage to prove the mortgage by reference to facts outside the agreement, and that claim was negatived by the Privy Council. There was, however, in that case, evidence, apart from the document, to show that the whole of the contract between the parties was embodied in a document. In this case, in my view, there is really no evidence of any contract of permanent tenancy apart from the actual document itself. It was argued, and was held by the learned Judge, that entries in the record of rights are sufficient to establish such a tenancy. In the various entries in the record of rights which are in evidence from the year 1903 till the year 1920 there is a reference to the permanent tenancy relied on by the defendant. In the first entry, Exh. 4, the date of the permanent tenancy is not given. It is merely referred to as 'agreement permanent', but in the later records the tenancy is referred to as 'deed of lease, permanent, date February 17, 1865, A.D.' Now it is said on behalf of the respondent that under Section 135J of the Bombay Land Revenue Code an entry in the record of rights must be presumed to be true until the contrary is proved. That provision was enacted in 1913, and in the first entry in the record of rights after that date there is a reference to this permanent tenancy of February 17, 1865, and the effect of Section 135J of the Code is to cast upon the plaintiff the burden of proving that that entry is wrong. But, in my opinion, the plaintiff discharges that burden, since he shows that the document to which the revenue officer refers as justifying this entry is a document which in law cannot affect the property and cannot be received in evidence. It seems to me that that being the only document relied on by the revenue officers, as soon as the plaintiff shows it is a document which in law passes no interest, he establishes the fact that the entry in the record of rights referring to permanent tenancy is wrong. In my opinion, therefore, the first issue should have been answered in the negative, and it should have been held that the permanent tenancy alleged by the defendant is not proved.
4. With regard to the second issue as to whether the defendant proved permanent tenancy by possession for more than twelve years to the knowledge of the plaintiff, it was laid down by the Privy Council in Nainapillai Marakayar v. Ramanathan Chettiar that a permanent tenancy can only be obtained by a tenant by custom or by grant from an owner of the land who happens to have power to grant such a right, or under an Act of the legislature. Later on in the judgment it is expressly affirmed that no title to permanent tenancy can be acquired by prescription as against the landlord, and, indeed, in such a case as the present it is difficult to see how such a right could be acquired. If in fact the tenant is shown to have paid rent, the presumption would be, in the absence of evidence as to the nature of his tenancy, that he is a yearly or monthly tenant, and if he is shown to have paid no rent, he would presumably acquire against the landlord such title as the landlord possessed. It is very difficult to see how by paying rent of a particular amount the Court can hold a permanent tenancy established by prescription, and the decision in the Privy Council seems to me conclusive to show that no such right can be acquired. Therefore, I think the second issue also should have been answered in the negative.
5. The learned Judge further held that the plaintiff was estopped from bringing this suit, apparently relying on the fact that he had been accepting rent at the rate specified in the unregistered document of February, 1865. But, in my opinion, no estoppel can be based upon that. There is no representation that the acceptance of such rent would confer permanent tenancy on the terms suggested, and I think that the issue of estoppel also should have been answered in the negative.
6. The result is that, in my opinion, the appeal should be allowed with costs here and below. There will be an inquiry as to mesne profits from date of suit under Order XX, Rule 12(1)(c), Civil Procedure Code.
7. I agree. The learned Judge of the Court below has held that the document on which the defendant relied, a permanent lease, was not admissible in evidence because it was not registered. This view, I think, is correct. Section 49 of the Indian Registration Act says that no document required by Section 17 to be registered shall be received as evidence, etc., and turning to Section 17 we find that all the documents enumerated in the section shall be registered, provided they have been executed on or after the date on which Act XVI of 1864 came into force. This document in suit was executed on February 17, 1865, and it was a lease of immoveable property for a period exceeding one year. It is, therefore, a document to which Section 17 applies, and was compulsorily registrable. It is true that at the time when it was executed registration was not compulsory, but in the following year, 1866, when the law of registration was amended, and documents of this nature for the first time became compulsorily registrable by Section 100 of the Act of 1866, a period of one year was allowed for the registration of documents which had not been registered under the previous Act, and those who did not take advantage of the period given cannot now complain.
8. The learned Judge has held that though the document was compulsorily registrable and could not be admitted in evidence, the defendant tenant was entitled to succeed because the record of rights produced in the case shows that he was a permanent tenant, and the entry to that effect must be presumed to be correct. This presumption, however, is rebuttable, and unfortunately for the defendant, was rebutted by the evidence which he himself produced. The record of rights mentions this document of 1865 as authority for the statement made therein that the defendant was a permanent tenant, and the document, when referred to, shows that it was not registered, and, therefore, that the entry must have been mistaken.
9. On the second issue all I would say is that, even if we refer only to the Bombay rulings, which have been to the effect that a title of permanent tenancy can be acquired by adverse possession, it is clear that it must be a question of fact in every case whether there has been any possession which can be termed adverse. In the present case there is no such evidence, because the mere assertion by a tenant of a right, without more, cannot be looked on as an adverse act. His assertion does not make it incumbent on his landlord to take any steps to oust him. I agree, then, that this appeal must succeed on those grounds.