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Mangal Singh Vs. Tek Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal Nos. 219, 223 and 224 of 1968
Judge
Reported inAIR1975Delhi267; ILR1976Delhi684
ActsRegistration Act, 1872 - Sections 17
AppellantMangal Singh
RespondentTek Ram and ors.
Advocates: D.D. Chawla,; C.L. Choudhry and T.S. Vohra, Advs
Cases ReferredMst. Kirpal Kaur v. Bachan Singh and
Excerpt:
.....is an interest in immovable property. the document being unregistered is inadmissible. but for the nature of possession reference can certainly be made to the document. it can be read in evidence.; further, that it cannot be said that the admission of panchayatnama in evidence will destroy the adverse possession of the defendants. they have not been able to prove their plea of adverse possession. nothing thereforee will be destroyed. - - jeevarathnammal, air 1919 pc 44(1) the rule is well established that a document which requires registration under section 17 of the registration act and which is not admissible for want of registration is nevertheless admissible to prove the nature and character of possession of the person who holds under it. (25) the counsel for the apellants places..........order to establish what damages the landlord suing for arrears of rent was entitled to by way of rent. rent of rs. 19.00 per year is mentioned in the panchayat-nama. the panchayat-nama is inadmissible in evidence on account of its not being registered. although the document as to the rent mentioned in the lease cannot be looked at in order to establish the rent fixed but the courts can look at it to determine what damages ought to be awarded against the defendants for use and occupation of the la.nd. it was on this view that the first appellate court proceeded. it held that a decree for rent could not be passed in favor of the plaintiffs. it converted that decree into a decree for damages for use and occupation. on the view taken in the lahore decisions the first appellate court.....
Judgment:

Avadh Behari, J.

(1) These arc three appeals against the order of the learned Additional Senior Sub Judge Delhi dated June 5, 1968. This judgment will govern them all.

(2) The facts arc these. The plaintiffs who are now the respondents in the appeal brought three suits for ejectment and recovery of rent and damages. The plaintiffs alleged that they were the owners of a part of Khasra No. 645/581 situated in Chandrawal Jaidid near Delhi. It was alleged that the defendants who arc the appellants now had constructed mud huts on the part of the khasra belonging to the plaintiffs. It was further alleged that the possession of the defendants commenced in 1949 and they agreed to pay rent.

(3) In all the three suits the plaintiffs are the same The defendants are different persons. Mangal Singh alias Mangtu is the defendant in one suit. Nanua and Naurang are the defendants in the second suit. Harphool and Jaidev arc the defendants in the third suit.

(4) The plaintiffs alleged that Mangal Singh had agreed to Pay Rs. 2.00 as rent. Similarly Harphool and Jaidcv had agreed to pay Rs. 2.00 pecr month, they said. Nanua and Naurang had agreed to pay Rs. 3.00 per month as rent accordingly to the plaintiffs.

(5) The plaintiffs' case was that the defendants had neither paid rent nor had they vacated the premises inspire of service of notice on them A decree for ejectment from the site on which the mud huts had been constructed and decree for rent and damages were claimed. The defendants resisted the suits. They raised several defenses. They said that the plaintiffs were not entitled to sue them in ejectment as permission of the Competent Authority under section 19 of the Slum Areas (Improvement and Clearance) Act 1956 had not been obtained. On merits the defendants claimed themselves to be the owners of the huts in dispute. They denied their liability to pay rent or damages.

(6) The trial court by order dated December 5, 1967. granted the plaintiffs a decree for rent. The plaintiff's claim for ejectment was dismissed.

(7) The defendants appealed to the Senior Sub Judge. The Additional Senior Sub Judge set aside the decree for rent granted by the trial court but instead passed a decree for compensation for use and occupation for the same amount which was decreed by the trial court in favor of the plaintiffs. On ejectment there was no appeal and that part of controversy at least no longer survives.

(8) The central point in these cases is about the admissibility of a panchayat-nama dated July 5, 1960 in evidence. The plaintiffs alleged that the defendants had executed the document dated July 5, 1960 in their favor admitting them, the plaintiffs, as the owners of the land. On the basis of the said document the plaintiffs claimed that the defendants possession was permissive and that they were entitled to rent or damages.

(9) The courts below found that there was a panchayat-nama dated July 5, 1960. The defendants had executed the said document. This document was admissible for the purpose of showing the nature of possession of the defendants. The defendants were not held to be the owners of the property. Their claim to adverse possession was held not proved. The plaintiffs' claim for rent was decreed by the trial court. The first appellate court took the view that a decree for rent could not be passed. It passed a decree for the same amount on account of compensation for use and occupation. The defendants now appear to this court.

(10) The only question which has been argued in these appeals is the question regarding the admissibility of the panchayat-nama dated July 5,1960 (P1).

(11) The counsel for the appellants-defendants submits that this document is inadmissible in evidence under section 17 of the Registration Act. It cannot be read in evidence even for a collateral purpose under section 49. This is his main submission. The counsel for the plaintiffs respondents however contends that though the document is inadmissible for the purpose of creating a perpetual lease in favor of the defendants it can be looked at for finding the nature of possession of the defendants. The nature of possession, it is said. is a collateral purpose. Under section 49 of the Registration Act a document can be looked at for a collateral purpose even though it is inadmissible in evidence on the ground that it is not registered.

(12) I will not read the panchayat-nama in full. I will. briefly state the substance of the document.

(13) The panchayat-nama crated July 5, 1960, recites that a meeting of the Panchayat was held at village Chandrawal The Gadarias and Goojars were present at that meeting. The Gadarias had erected mud huts on the land of the plaintiffs. It was settled at the meeting, so says the document, that the plaintiffs will charge Rs. 19.00 per year from all the Gadarias and they will let the Gadarias remain in occupation of the land where they were in occupation at that time. This arrangement will continue so long the village Chandrawal exists.

(14) In this document the Gadarias were also allowed to repair their mud houses. The plaintiffs agreed not to place any obstruction in the way of repairs. It was admitted by the defendants in this document that they had erected mud houses on the land of the plaintiffs. The Panchayat thereforee took the aforesaid decisions.

(15) The courts below have found as a fact that Mangal Singh. Nanua, Naurang and Jaidev had signed this document. Similarly the plaintiffs had signed this document. Harphool was of course was not a party to this document but his son Jaidev was a signatory to the deed. The courts further found that the said panchayat-nama was not obtained from the defendants by fraud or misrepresentation as was pleaded by them.

(16) On admissibility the courts below have held that the document is compulsorily registerable since it creates a perpetual lease. However under section 49 of the Act in order to see the nature of possession of the defendants the document can be looked at. This was the decision of the courts below on the panchayat-nama.

(17) Since the decision of the Privy Council in N. Varda Pillai v. Jeevarathnammal, Air 1919 PC 44(1) the rule is well established that a document which requires registration under section 17 of the Registration Act and which is not admissible for want of registration is nevertheless admissible to prove the nature and character of possession of the person who holds under it.

(18) The Privy Council decision was approved by the Supreme Court in Padma Vithoba v. Mohd. Multani, Air 1963 S C 70(2). There are a large number of decisions which establish the principle of law that where a lease deed compulsorily registerable is not registered it is admissible for the collateral purpose of examining the nature of possession. It is now settled by a long line of decisions that

'PROOFas to the nature of character of a person's possession is really proof of a transaction showing in what character a person has come upon the land. Such a transaction is really a collateral one which, by itself, does not require to be affected by a registered deed. An unregistered document is, thereforee, held to be admissible as evidence of the nature or character of a person's possession.'

(19) This court in J. N. Banerjee v. S. L. Bhargava, : AIR1971Delhi243 held that the document of lease can be referred to even though unregistered in order to ascertain whether the lessee was occupying the premises for purposes of residence or profession. In that case there was a, term of the lease under which the premises were given to the lessee for residential and clinic purposes. It was held that that particular clause of the lease deed could be looked into. The purpose for which the premises were let was held to be a collateral one.

(20) In Shalimar Tar Products India Ltd. v. H. C. Sharma and others. T.L.R. (1974) I Delhi 389(4) B. C. Misra J again allowed an unregistered document to be produced in evidence to show the nature of possession. In that case the unregistered document contained a written consent by the landlord to the tenant to sublet the premises. It was held that the lease deed was admissible to prove the landlord's written consent. The consent was held to be a collateral matter.

(21) The Supreme Court in Ram Vidya Bhushan Singh v. Rati Ram Civil Appeal No. 416 of 1966 decided on June 28, 1969(5) [See unreported Judgments 1969 (21)] said :

'Adocument required by law to be registered if unregistered is inadmissible in evidence of a transaction affecting an immovable property, but it may be admitted as evidence on collateral facts or for any collateral purpose, that is, for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to the immovable property.'

In Vishvanath Haibatrao Deshpande v. Ranganath Dhondo Deshpande and others : AIR1942Bom268 (6) Wassoodew J. said :

'COLLATERALpurpose is any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property.'

(22) This view was also taken in Bai Gulabbai v. Shri Datagargi : (1907)9BOMLR393 . It appears to me that the Supreme Court in Ram Vidya Bhushan Singh's (5) case approved this view. In Karimullakhan v. Bhanupratapsingh a learned single judge dissented from the Bombay decision in V. H. Deshpande's (6) case (supra). The Nagpur decision must, thereforee, now be held to be incorrect.

(23) The panchayat-nama in the present case, thereforee, is not admissible in evidence for the purpose of proving the permanent lease which it seeks to create. That is an interest in immovable property. The document being unregistered is inadmissible. But for the nature of possession reference can certainly be made to the document. It can be read in evidence. A reading of the document shows that the defendants' possession is permissive. They admitted that the land on which they had built the mud huts belongs to the plaintiffs. They agreed to become tenants under the plaintiffs. thereforee, in order to explain the present possession of the defendants and its nature and character the document can be admitted in evidence. This will be a collateral purpose. I think the courts below were right in admitting the document to prove the nature of possession of the defendants.

(24) In Kidar Nath V. Dungar Mal and Sons, Air 1931 Lah 501(9) and Jawahri Mal V. Jagan Nath and others Air 1930 Lah 915(10), unregistered document of lease was read in evidence in order to establish what damages the landlord suing for arrears of rent was entitled to by way of rent. Rent of Rs. 19.00 per year is mentioned in the panchayat-nama. The panchayat-nama is inadmissible in evidence on account of its not being registered. Although the document as to the rent mentioned in the lease cannot be looked at in order to establish the rent fixed but the courts can look at it to determine what damages ought to be awarded against the defendants for use and occupation of the la.nd. It was on this view that the first appellate court proceeded. It held that a decree for rent could not be passed in favor of the plaintiffs. It converted that decree into a decree for damages for use and occupation. On the view taken in the Lahore decisions the first appellate court appears to me to be quite right.

(25) The counsel for the apellants places strong reliance on Mst. Kirpal Kaur v. Bachan Singh and others, : [1958]1SCR950 . In that case one Harnam Kaur was in possession before the date of the document which was unregistered. She claimed to be in adverse possession. The Supreme Court held that the document could not be admitted in evidence. A. K. Sarkar J speaking for the court said :

'INthe 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 a permissive possession and, thereforee, to give effect to 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 S. 49 of the Registration Act.'

(26) The ratio of this decision, thereforee, is that the unregistered document cannot be admitted to prove the character of possession before the execution of the document if the effect of the document is to destory the adverse possession. Harnam Kaur's possession had ripened into adverse possession. She had perfected her title. This is clearly emphasised in the above passage. This will be further clear from the following observation :

'ASthere is no evidence of any arrangement with the respondents under which Harnam Kaur can be said to have taken possession of the lands, her possession must be taken to have been adverse to the collaterals. Admittedly such possession commenced in 1920 on the death of Ram Ditta and has continued ever since. So at the date of the mortgage and gift, Harnam Kaur had acquired a title to the lands by adverse possession.'

(27) In order to determine the nature of possession subsequent !o the execution of the document it can be relied upon and referred to in evidence.

(28) The defendants say that they claim adverse possession. The trial court found that the defendants led no evidence to show that they were in possession of the premises in dispute as owners. Nor did they prove that they had become owners by adverse possession. Issue regarding adverse possession was decided against the defendants. This is a. finding of fact. It was affirmed on appeal by the lower appellate court. It cannot thereforee be said that the admission of panchayat-nama in evidence will destroy the adverse possession of the defendants. They have not been able to prove their plea of adverse possession. Nothing thereforee will be destroyed. The Supreme Court decision is clearly distinguishable.

(29) Lastly it was argued in appeal No. 224 of 1968 that Harphool was a defendant in the original suit and he did not sign the panchayatnama. But now Harphool has died. His son Jaidev is alive. He was also a co-defendant. thereforee, the mere fact that Harphool had not signed the panchayat-nama is not of much consequence. Jaidev had certainly signed the panchayat-nama. The interest of Harphool devolved upon Jaidev. Jaidev is certainly bound by the document. His possession is permissive on the land.

(30) For these reasons I affirm the decrees of the lower appellate court. I dismiss all the three appeals leaving the parties to bear their own costs in the circumstances of the case. Appeals dismissed.


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