Manohar Pershad, J.
1. The plaintiff-appellant herein filed a suit for possession and mesne profits against the defendant-respondent alleging that on 6th Meher 1343 F, the owners of the suit land transferred the same in his favour through a registered sale deed and he has been in possession by leasing it on kaul to Ismail Sherif and alter his death to Ahmad Sherif and thereafter to his two sons Khaja Sherif and Maqdoom Sherif, who agreed orally to continue us lessees on the basis of the previous agreement. He further avers that later on the lessees in collusion with the defendant dispossessed him.
The defendant (respondent) has denied all the allegations contained in the plaint, claimed ownership of the land and stated that he and his an-cestors had leased out the land in dispute to Gul Farosh (flower vendors) and according to the custom prevailing, if the owner of the land desired to evict the Gul Farosh, he had to pay money towards the right of owneiship and possession of the lease and in pursuance of this practice, he purchased the right of ownership and possession of the Phool Bagh from his Kauldars Khaja Sherif and Makdoom Sherif through a registered sale deed 18-3-51F.
In the rejoinder, the appellant admitted that the flower garden had a permanent characteristic and alleged that his ancestors had erected flower garden on the disputed land which was taken on lease by the Gul Farosh from him and his father. In all 8 issues were framed. Evidence was led by the parties. On the evidence produced, the lower Court decreed the suit of the plaintiff for possession and mesne profits at the rate of Rs. 350/- per year till the delivery of possession holding that the title and possession of the appellant was proved. He also held that the defendant had no right and title. Aggrieved by the judgment and decree of the trial Court, the respondent herein went in appeal.
The appellate Court, retaining the case on its file, remanded the case to the trial Court for evidence of the paities. Alter remand, the trial court on the evidence produced expressed the opinion that the evidence on record was not sufficient to give a decree for mesne profits, but that the plaintiff was entitled to a decree: for possession. When the matter came up before the learned Judge again, he dismissed the entire claim of the plaintiff. Hence this appeal.
2. It is ccntended on behalf of the appellant that the lower appellate Court has erred in holding that unregistered lease deeds were not admissible in evidence and that the other evidence on record was not sufficient to establish title and pos. session of the plaintiff.
3. The sole question that has to be determined in this appeal is whether the appellant has any right and title to the suit property and whether he was in possession and has been dispossessed by the respondent. In order to prove title and possession, the appellant relies on the registered sale deed, two lease deeds, pauti bahi the revenue receipts from 1337 F. to 1355 F. and the oral testimony of five witnesses. So far as the patte-dari of the plaintiff is concerned, the defendant has denied tnat he is a pattedar. The appellant has filed the pauti bahi, murasala of the Tahsil and the mutation record. All these go to prove that the patta of the suit land stands in the name of the plaintiff.
It is also evident that previous to this, the patta stood in the name of the plaintiff's father. As against this there is no evidence on behalf of the respondent. The next question is who is the owner of the suit property. The plaintiff's case is that he and his ancestors had been in possession of the suit land for over 50 years and admitting their possession, the owners of the land transferred the same in his possession. The vendor Shankeriah has been examined and he States that he transferred tho suit property in favour of the plaintiff.
As against this, the case of the respondent is that he was the owner and he had leased out the suit land to Ahmed Sherif and according to the prevailing custom. he purchased the same from him. There is absolutely no evidence in the case to show that the respondent was 'originally the owner of the suit land. Now, the only case of his that remains is the purchase by him from Ahmed Sherif. This Ahmed Sherif, according to the plaintiff was his kauldar. The respondent also states that he (Ahmed Sherif) was his kauldar. Ahmed Sherif is dead. His sons Khaja Sherif and Maqdoom Sherif are alive. Out of these, Khaja Sherif has been examined on behalf of the appellant.
He admits that he had taken the suit land on kaul from the appellant and as regards the defendant's claim that he sold the property to him, he says that was done under duress and undue influence. It is therefore clear from the statement of Khaja Sherif that he was a kauldar of the appellant. A kauldar cannot transfer any bettor right to any person than what he himself has. The plaintiff-appellant in order to prove that Ahmed Sherif was his kauldar, apart from the oral evidence, relies on two lease deeds, Exs. 2 and 20 Exhibit 2 is a kaulnama executed by Ahmed Sherif on 4th Dai 1350 F. For a period ot 5 years. Exhibit 20 is another kaul dated 26th Khurdad 1336F, by Sherif Sab son of Ismail Sab.
It may be noted here that Ahmed Sherif is the son of Ismail Sab and Khaja Sherif and Man-doom Sherif are the sons of Ahmed Sherif. Yousuf Ali, P. W. 2 and Khaja Mia, P. W. 5 have spoken to the fact of these kubuliats. The contention of the learned counsel for the appellant is that though these kubuliats are unregistered, still they are admissible to prove the nature of possession and also the admission by Ahmed Sherif that the plaintiff is the owner, whereas the contention of the other side is that these kubuliats being unregistered are inadmissible in evidence and they cannot be relied upon even to prove the nature of possession or admission.
In this connection, the learned counsel placed his reliance on K. Subbayya v. Mudduletiah, 17 Mad LJ 469. We do not find sufficient force in the contention of the learned counsel for the respondent. There is sufficient authority tor the proposition that a document which is unregistered is admissible tor collateral purposes. In the instant case, the appellant relies on this document for the purpose of proving the admission of Ahmed Sherif contained therein. There is also sufficient authority for the proposition that an unregistered document can be admitted in evidence for the purpose of proving the admission contained therein. We may in this connection refer to a few cases:
4. Devi Dayal v. Wazirchand, 61 Ind Cas 328 (Lah), was a case where reliance was placed on the admission in a lease deed. The contention was that it being not registered was inadmissible in evidence under Section 49 of the Registration Act. This contention was repelled and it was held;
'We agree that, as a lease or as. a document to prove title, it is not admissible. But we see no reason why the admission of Devi Dayal contained therein cannot be taken in evidence,' In Sailesh Chandra v. Bireswar Chatterjee, AIR 1930 Cal 559, the Calcutta High Court has taken a similar view. In this case, there was a compromise agreement operating as a lease. This was also unregistered. Question was raised that it was inadmissible.
5. It was held:
'An agreement if unregistered will not be admissible as a lease although a statement in it may be admitted as an admission. When such a statement is admitted as an admission, it is only a piece of evidence and it is open to the party who has made the admission to show that it was made in circumstances which did not make the admission binding on him or on her as the case may be.'
In this case, Mr. Justice Mitter has relied upon the Privy Council decision in Hemanta Kumari Debi v. Midnapur Zamindari Co., AIR 1919 PC 79. We are also of the opinion that though the lease deeds in question being unregistered are inadmissible in evidence under Section 43 of the Hyderabad Registration Act, corresponding to Section 49 of the Indian Registration Act, but so far as the admission of title in those lease deeds is concerned there is nothing why the same should not be so used.
6. The case relied upon viz., 17 Mad LJ 469 does not help the contention of the learned counsel for the respondent. In this case, their Lordships have held that an unregistered permanent lease was inadmissible in evidence to prove the nature of possession, which the lessee had. There is no discussion in this case whether the admission in the document was admissible or not, As stated earlier, we ate using the lease deeds only to prove the admission. We need not therefore go into the question whether this document is admissible to prove the nature of the possession.
7. The Madras High Court in a subsequent case Ranjagamier v. Ranjagam Iyyar, AIR 1920 Mad 172 has considered the question of the ad-missibility of the admission in an unregistered document and has held:
'The document was no doubt admissible in evidence to prove the admission and there is no doubt of such an admission in it.'
The contention of the learned counsel for the respondent is that even if the admission in the lease deed is admissible, the same cannot be used against Khaja Sherii, because that is not his admission. There is no force m this contention. Khaja Sherif, as stated earlier, is the son ot Ahmed Sherif. He derives title through his father. He cannot therefore say that he is not bound by the admission of his father. Of course, it was open to him to rebut the admission by producing evidence or giving some satisfactory explanation, but this is not so; on the other hand Khaja Sherif has clearly admitted that he and his ancestors were kauldars of the appellant. Taking this document and reading it along with the sale deed and the oral evidence, there does not remain any doubt that the plaintiff-appellant is the owner of the suit property. As against this evidence, there is only the deposition of two witnesses. Ram Reddy and Noor Khan. Ram Reddy says that he has been seeing the possession of B. Ranga Reddy for the last 40 years, that he had leased out the suit land to Khaja Mia and Maqdoom Mia. In cross-examination, he says he does not know who was the lessee before the father of Khaja Mia. Noor Khan states that after the sale deed B. Ranga Reddy is in possession. He admits he is the watchman kept for purposes of watching on the land by Ranga Ready, but admits that he does not know in whose name the patta is and what revenue is paid.
This evidence in our opinion does not rebut the appellant's evidence. The best evidence in the case would have been that of B. Ranga Reddy himself but he has not chosen to give his statement. Apart from .the discrepancy in the deposition of the statement of Ram Reddy and Noor Khan, their statements are most untrustworthy. The trial Court before whom the evidence was led has believed the evidence of the appellant and has not relied on the evidence of the defendant. We agree with the view of the trial Court and hold that the evidence produced on behalf of the appellant is sufficient to prove that he is the owner and was in possession. The evidence of the defendant does not rebut this evidence.
If, as is alleged by the respondent, he has been in possession for over 50 years, we fail to understand why not a single revenue receipt has been filed on his behalf; on the Other hand, there are number of such receipts from 1337 to 1355 F. filed by the appellant. The lower appellate court has disagreed with the view of the trial court holding that the lease deeds were inadmissible in evidence. In view of the above discussion, this view of the appellate court cannot be upheld. The appellant has filed a suit for possession, mesne profits and for damages. The trial Court decreed the suit of the plaintiff for possession and as regards the mesne profits the direction of the trial court was that the plaintiff would be entitled to mesne profits at the rate of Rs. 350/- per year from the date of the suit till the date of possession and dismissed the claim lor damages.
Against the order of the trial Court, refusing to give a decree to the plaintiff for mesne profits for three years prior to the suit, the plaintiil did not take any action. That order has become final. As per the directions of the trial Court, the plaintiff therefore would only be entitled to mesne profits from the date ot the suit till the date of possession. This will be determined by the trial Court under Order 20, Rule 12, C. P. C.
8. The appeal is therefore allowed, the judgment and decree of the lower court is set asideand that of the trial Court restored as indicatedabove. The appellant would be entitled to coststhroughout. The mesne profits will be determinedby the trial court under Order 20, Rule 12, C. P. C.