B.N. Sapru, J.
1. These five second appeals are connected and can be decided together. The plaintiff is the State of Uttar Pradesh, Its case was that it was the owner of the disputed land which forms part of the Right Bhakra Canal. It leased out land to the defendants on various dates. According to its case, it leased out two plots of land to Arshad All on 25-9-1951 for three years. It further leased out a plot of land to Jaswant Singh defendant for three years on 10-7-1962. There was a lease executed in favour of Munshi Lal by the State on 10-7-1952 for three years and another lease executed in favour of Imtiaz Husain for a period of three years on 10-2-1952. In the case of Ram Prasad it is said that the plaintiff State leased out a plot to him on 10-7-1952 for a period of three years. The plaintiff's case was that the defendants other than Ram Prasad had encroached on land adjacent to the plots leased out to them as shown in the site plan attached to the plaint. It is further the case of the plaintiff that under the terms of the lease the defendants were permitted to make temporary constructions on the leased out plots, but that the defendants in contravention of the terms of the lease had made permanent constructions thereon. It is necessary to add that according to the plaint case a rental was reserved under the terms of the lease deed The plaintiff's case was that the defendants had not paid rent for the period mentioned in the plaint, and that they had been served with a notice to quit under Section 106 of the T. P. Act, but they had not vacated the land. The plaintiff therefore, filed the suit and hadprayed for a decree for eviction of the defendants from the land in dispute, and also for arrears of rent and for damages for use and occupation of the land both comprised within the lease and also the land said to have been encroached upon. In the case of Ram Prasad no encroachment was alleged.
2. The defendants contested the suit with the allegation that they were given grants of land for building purposes, and had been put into possession of the land and they had made permanent constructions thereon. The defendants denied (except in the case of Ram Prasad where no allegation of encroachment was made) that they had encroached on any land belonging to the plaintiff. The defence case further was that the plaintiff's officers, and agents were aware that they were raising permanent constructions of a valuable nature on the land in suit in the belief that they were entitled to make these constructions, and as such, the suit for eviction was barred by estoppel and acquiescence. The defendants further pleaded that they had paid rent to the plaintiff but had not been issued receipts of the rent received by the plaintiff. The damages claimed for use and occupation was also asserted to be excessive. It was further pleaded that the defendants had not received any notice to quit and that notice, If any, had been waived. The defence case further was that they had obtained an injunction from a Civil Court restraining the plaintiff from evicting them from the land in suit except in accordance with law. It was further pleaded that the Crown's Grants Act did not apply to the territories of erstwhile State of Rampur when the grant was made, as had been asserted by the plaintiff. The defendants, therefore, asserted that the plaintiff was not entitled to any relief as against them.
3. The trial court framed the necessary issues. It was admitted before the trial court by the counsel for the plaintiff that the Crown Grants Act did not apply to the State of Rampur where the disputed land is admittedly situate. This finding was recorded on the basis of the concession made by the counsel for the plaintiff. Having found that the Crown Grants Act did not apply to the State of Rampur, the trial court held that the so called lease required registration under Section 107 of the T. P. Act and being an unregistered document, it was inadmissible in evidence. As regards encroachment the trial court held that the lease deeds being inadmissible the defendants were not lessees of the land in suit, and that the Commissioner's report did not prove any encroachment, and as there was no further evidence to prove encroachment on behalf of the plaintiff, its case that the defendants other than Ram Prasad had encroached on the land was not proved. The trial court further found that the defendants were licensees of the plaintiff and were in possession in that capacity. It further found that the defendants had failed to prove that they had been granted a license of the land in dispute with permission to build thereon, and as such, the constructions were unlawful. Another finding of the trial court was that the constructions had been within the knowledge of the plaintiff's servants and that the defendants' evidence that the ziledars and other employees of the plaintiff saw them making the constructions and advised them to construct in a particular way is correct, and as such, the suit for eviction was barred by estoppel and acquiescence. Having found that the defendants were not lessees of the land, the trial court found it unnecessary to determine whether the notice under Section 106 of the T. P. Act had' been served on the defendants. It accordingly decreed the suit for recovery of what it called the premium for a licence which was equivalent to the rent agreed under the lease deed and dismissed the suit for other reliefs.
4. The plaintiff filed an appeal. The lower appellate court agreed with the trial court that the lease deed was required to be registered and as it was not registered, it could not be admitted in evidence, but it looked into it for collateral purposes. It has held that if 1he lease deed is held to be a licence as held by the trial court, it could be looked into as a document granting licence, which required no registration. After referring to the decisions of various courts in the case of Chotey Lal v. Durga Bai : AIR1950All661 , Fateh Chand v. Mst. Radha Rani (1956 All LJ 625). Vadasseri Taravattil Karnavan v. Appaswami Konan (AIR 1955 NUC (Mad) 3950) and Ram Kishore v. Ambika Prasad (AIR 1966 All 515) it came to the conclusion that the lease deed (referred to as the deed of grant by the lower appellate court) could be looked into for collateral purposes of finding out thenature of possession of the defendants over the property and also of its extent.
5. The lower appellate court therefore referred to the lease deed and found out the area leased out to the defendants. It further found on the basis of the lease deed that the defendants had been permitted to put up temporary chhappare on the land which could be removed on the expiration or determination of the grant. It further found that the lease deed gave the lessee the right to sublet the land with the permission of the Executive Engineer. It was further held by the lower appellate court again on the basis of the lease deed that if due to natural calamity the plaintiff remitted the whole or part of the rent, the lessees would remit the rent payable by their sub-tenants, if any. The lower appellate court has also looked into the lease deed for finding out the period for which it was granted and for the amount of the rent reserved in the lease. It has also found with reference, to the lease that there was a right of re-entry in the plaintiff under certain specified conditions. Having looked into the lease the lower appellate court came to the conclusion that under the lease deeds an interest in the property was created in favour of the defendants-respondents, and that the relation between the plaintiff and the defendants was that of a landlord and tenant. The lower appellate court has observed in its judgment that as an interest in the property was created in favour of the defendants, they could not be deemed to be the licencees of the land in suit. In this connection the lo'-Yo;1 appellate court was impressed v-;}, the fact that under the lease deed the Ie.s?ee was entitled to sublet the lar>d. It has said in its judgment that a Ik-rrtre was not transferable, and hence, this was again an indication that the defendants were not licencees of the land in di'-pute. The lower appellate court further held that the fact that rent had bei'n offered -and accepted and from other circumstances in the case a valid tenancy could be inferred. It, therefore, recorded a finding that there was a relationship of landlord and tenant between the plaintiff and the defendants.
6. After looking into the lease deed and the report of the petitioner (sic) (Commissioner?--Ed.) and the map prepared by him, it found that the area in possession of the defendants other thanRam Prasad was in excess of the area leased out and as euch, encroachment by the defendants was established.
7. The lower appellate court further found that under the lease deed the defendants had only been permitted to put up temporary constructions in the land in suit and that immediately after taking possession of the land under grant they had raised permanent constructions which showed that the constructions had not been made with the consent or the permission of the plaintiff. In this connection it observed that in view of the terms of the lease regarding the making of temporary constructions the defendants' evidence that they had made the constructions with the consent or permission explicit or implied of the plaintiff through its agent could not be considered. It further found that in view of the fact that the lease deed showed that it had been granted for a fixed term it only permitted temporary constructions, the defendants' plea that they had made permanent constructions with the consent of the plaintiff or its agent could not be accepted and, therefore, the suit was not barred by the principle of estoppel and acquiescence. The lower appellate court has found that the notice to quit was valid and that the mere fact that the plaintiff did not file a suit against the defendants for about three years did not mean that the notice to quit had been waived. The lower appellate court in view of its finding referred to above allowed the appeal and decreed the suit for ejectment from the land originally leased and from the land found to have been encroached upon by the defendants (except in the case of Ram Prasad); a decree was also granted in favour of the plaintiff for arrears of rent and damages for use and occupation. The lower appellate court further directed that the plaintiff would get pendente lite and future damages in respect of the entire land as mentioned in the judgment. It further permitted the defendants to remove the constructions within a period specified in the judgment.
8. The defendants have now filed second appeals which are being decided now. Sri G. P. Bhargava appearing on behalf of the defendants has urged that the lease deed being inadmissible in evidence in view of the provisions of Section 49 of the Indian Registration Act it cannot be looked into for any purpose other than a collateral purpose. The learnedcounsel has urged that the lower appellate court has erred in law in looking into the lease for other than collateral purposes. His argument is that the lease deed could not be looked into for finding out the area of the land leased out, the duration of the lease, the amount of rent reserved or the other terms and conditions of the lease. His further argument is that no relationship of landlord and tenant was created by the lease deed and the status of the defendants was that of licensees who had been induced to believe that they could raise permanent constructions on the land in suit and, as such, the suit was barred by the principles of estoppel and acquiescence. In this connection a reference to the provisions of Section 60(b) of the Easements Act may be made which provides-
'A licence may be revoked by the landlord unless the licencee, acting upon the licence has executed a work of a permanent character and incurred expenses in its execution.'
On the question whether the unregistered lease deed could be looked into for determining the nature of possession of the defendants, a reference was made to the judgment of the Supreme Court in the case of Mst. Kirpal Kaur v. Bach-chan Singh : 1SCR950 where it was observed in para. 14 as follows :
'It is then said that the agreement of February 6, 1932 showed that since its date her possession was permissive. The High Court has held that the agreement was admissible to prove the nature of her possession. In Varada Pillai v. Jeevarathnammal, (46 Ind App 285 : AIR 1919 PC 44), it was held that a document which should have been registered but was not, was admissible to explain the nature of the possession of a person. What had happened there was that two widows who were in possession of a property in equal shares, presented a petition to the Collector on 10-10-1895, whereby after reciting that they had on 8-10-1895, given away the property as stridhan to one Duraisani they prayed that orders might be passed for transferring the villages into her name. On this petition the property was registered in the name of Duraisani and she was put in possession and thereafter continued in possession till her death in 1911. The question was whether Duraisani had acquired the title to the property by adverse possession. It washeld that though the petition in the absence of registration could not be admitted to prove a gift, it might be referred to for showing that the subsequent possession of Duraiaani was as a donee and owner of the land and not as trustee or manager for the two donors and therefore to show that the nature of such possession was adverse to them. We cannot agree that on the authority of Varada Pillai's case, the agreement of 6-2-1932, can be admitted in evidence in the case in hand to show the nature of Harnam Kaur's possession of the lands subsequent to its date, in Varada Pillai's case, Duraisani had got into possession only after the petition and claimed to retain possession only under the gift mentioned in it. The petition was, therefore, admissible in evidence to show the nature of her possession. In the present case Harnam. Kaur had been in possession before the date of the document and to admit it in evidence to show the nature of her possession subsequent to it would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession into the agreement contained in it which admittedly cannot be done for want of registration. To admit it in evidence for the purpose sought would really amount to getting round the statutory bar imposed by Section 49 of the Registration Act'.
9. In the instant case, the possession of the defendants started after the execution of the lease deed and, as such, the aforesaid decision of the Supreme Court would not assist them. Another case which has been referred to in the course of arguments is the decision of the Supreme Court in the case of Padma Vithoba Chakkavya v. Mohammad Mul-tani (AIR 1963 SC 70) where in para. 8 it was observed as follows :--
'The endorsement of cancellation on the back of the sale deed in favour of Rajanna dated Dec. 21, 1923, has been held, as already stated, to be inadmissible in evidence as it is not registered. The result of it Is only that there was no transfer of title by Rajanna to the second defendant, and the family would in consequence continue to be the owner, and that is why the appellant is entitled to redeem. But the endorsement taken along with the sale deed by the second defendant in favour of the first defendant is admissible in evidence to show the character of possession of the latter.Vide Varada Filial v. Jeewarathnammal (AIR 1919 PC 44), and that was clearly adverse to the owner. The answer of the appellant to this contention is that Rajanna himself was a minor at the time when this arrangement is stated to have taken place, and in consequence no title by adverse possession can be founded on it. We agree that if Rajanna was a minor when he entered into this arrangement that would not operate to alter the character of the possession of the first defendant as mortgagee. The respondent contended that there can be adverse possession against a minor in certain circumstances, and relied on the decision in Sitharam Raju v, Subba Raju (AIR 1922 Mad 12), in support of this position. That is not questioned, but the point for decision is whether possession lawful at the inception can be adverse under an arrangement entered into by a minor. Now, a minor is in iaw incapable of giving consent, and there being no consent, there could be no change in the character of possession, which can only be by consent, and not by any unilateral act. Therefore, the crucial point for determination is whether at the time of the cancellation of the sale deed dated Dec. 21, 1923 Rajanna was a minor or a major. According to the respondent he was a major and there is evidence also on record in support of this contention. According to the appellant Rajanna was a minor all that time and he died a minor in 1930. On this disputed question of fact there has been neither an issue framed nor evidence adduced. Under the circumstances we think it desirable that the matter should be remanded to the court of District Munsif for a fresh inquiry on this question. The plaintiff should on remand be required to suitably amend the plaint so as to convert the suit into one for redemption of the usufructuary mortgage of the year 1916. The first defendant will then file his written statement in answer thereto. An issue will be framed whether Raj anna was a major at the time when the sale deed was cancelled. If it is held that he was a major, then the possession of the first defendant thereafter would be adverse and on the findings given by the courts below, the suit will have to be dismissed as barred by limitation. But if it held that Rajanna was then a minor, then there would be no question of adverse possession and the plaintiff would be entitled to redeem themortgage. The decree of the lower court is accordingly set aside and the matter remanded to the court of the District Munsif for fresh disposal as stated above. Costs incurred throughout in all the courts will abide the re-, suit.'
This decision has been cited by the, Standing Counsel appearing on behalf of the plaintiff, and Sri G. P. Bhargava does not contest the position that the lease deed can be looked into for the purpose of determining the character of the defendants' possession of the land. Learned counsel for the appellant Sri G. P. Bhargava has referred to the deci-sion of the Supreme Court in the case of Ratan Lal Sharma v, Purshottam Harit : 3SCR109 where it was observed as follows :--
'It is not necessary to express any opinion on the first argument as we are of opinion that the award requires registration and, not being registered, is inadmissible in evidence for the purpose of pronouncing judgment in accordance with it. So we pass on to the remaining two arguments of the appellant.'
This decision is of no assistance to the defendant in the present case as it does not attempt to define what are collateral purposes for which an unregistered document which requires registration can be looked into. In this situation it would be useful to refer to the provisions of Section 49 of the- Indian Registration Act. Section 49, in so far as it is relevant is reproduced below :
'No document required by Section 17 or by any provision of the T. P. Act, 1882. to be registered shall :
(a) affect any immoveable 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 T. P. Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chap. II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53-A of the T. P. Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.'
The lower appellate court held that the unregistered lease deed established a relationship of landlord and tenant between the plaintiff and the defendants This is clearly prohibited in view of the provisions of Clause (a) of Section 49 of the Indian Registration Act. It is well known that a lease creates an interest in the property. As such, the lower appellate court erred in law in holding that the unregistered lease deed created relationship of landlord and tenant between the plaintiff and the defendants.
10. The lease deed could, in view of the proviso to Section 49, be received as evi-dence of a collateral transaction, not required to be effected by a registered instrument. The amount of rent agreed between the parties could be found from the other evidence produced in the case regarding offer and acceptance of the rent without a reference to the lease deed. The various stipulations in the lease deed which formed an integral part of the lease deed cannot be examined, The lease deed could be looked into for determining the nature of the possession of the defendants in order to find out whether it was adverse or permissive. However, that problem does not arise in the instant case, as the defendants have not set up a plea of adverse possession and have pleaded licence. They accordingly admit the plea that their possession is permissive.
11. According to the plaintiff the defendants other than Ram Prasad had encroached on the land adjoining the land leased out under the lease deed to the defendants. The lease deed could not be referred for finding out what was the area leased out to the defendants However, the plaintiff's ownership of the land having not been disputed by the defendants, the lease deed could be referred to for the purpose of finding out what was the area encroached upon. Therefore, the finding of the trial court that there was no encroachment proved in the case cannot be sustained.
12. As has been held earlier, the lease deed could not establish a relationship of landlord and tenant between the plaintiff and the defendants. However, it is clear that the possession of the defendants was permissive. The lease deed being inadmissible in evidence it is not possible to find out the period for which it was granted. The lower appellate court was also not justified in law in coming to the conclusion that the relationship of landlord and tenant exists between the parties by a reference to the terms of the lease. The lower appellate court in its judgment has taken into consideration that under the terms of the lease deed the defendants could sublet the land and that they could only make temporary constructions thereon and that the lease was for a fixed term. This was clearly prohibited by a provision of Section 49 of the Indian Registration Act, as it was receiving evidence of a character prohibited by Clauses (a) and (c) of the said section. The purposes for which the lower appellate court has looked into the lease deed were not collateral transactions not required to be effected by a registered instrument.
13. The lower appellate court negatived the plea of estoppel and ac-j quiescence by a reference to the terms of the lease deed, in particular, by a reference to the terms which prescribed the duration of the lease and that providing only for the making of temporary constructions This was again in con-travention of the provisions of Section 49 of the Indian Registration Act. The lower appellate court, as observed earlier, has not referred to the oral evidence produced on behalf of the defendants in this connection, and has negatived the defendants' case only on the basis of the recitals in the lease deed.
14. In the result, the appeal has to be allowed and the case has to be sent back to the lower appellate court to determine the nature of the defendants' possession over the land in suit and find out whether the plaintiff's suit is barred by the principles of estoppel and acquiescence. The lower appellate court will not take into consideration the terms of the lease while determining this question, but will decide it on the basis of other evidence on the record. The finding of the lower appellate court regarding encroachment by the defendants will stand. Sri G. P. Bhargava appearing on behalf of the defendants made a statement at the bar that his clients are prepared to pay pro rata rent for the land alleged to have been encroached upon by them, and they are also prepared to take fresh leases. This is of course a matter for settlement between the parties themselves.
15. In the result the appeals are allowed and the cases are sent back to the lower appellate court to decide the matter afresh in the light of the observations made above. Parties will bear their own costs. This order will also (govern writ petition (sic) (second appeal?--Ed.) Nos. 842, 843, 844 and 763 of 1968.